The Northern Review

It is Sunday in America, September 28, 2008 — The leaders of the Democrat Party of America have their smiling faces all over the American newspaper frontpages.  They are proud because they have reached a Casino Capitalism bad debt bailout.  There is nothing attractive about what the Democrats hope to do on Monday.  There is nothing attractive about what the Republicans hope to do on Monday.

These Democrats, the Repubmocrats, seek to allow the Bush Administration to engage in a massive fraud on the American taxpayer. They have taken over the responsibility for the bailout so that if and when it fails it will be on their shoulders; they are now the champions of a new form of casino capitalism.  And perhaps most important, by their actions and support, they will probably lose control of the Senate and the House at some time in the near a future.  It would not be such a bad loss if the Republicans who seem to be on the same page are also defeated, but they will not be.

We are witnessing the end of America.  We are fiddling while everything is going to hell.

“Government is the problem” so it is said. Now, the same people are saying government is the “answer.” What gives? Our political life is controlled by children. Spoiled children who think the cause of their angst is a parental figure (government) and at the same time think the parental figure (government) can and should save them from their angst. Republicans and Democrats are the same. They want the same thing, the pleasure of children. For a child, pleasure comes from someone big. For the child the solution comes from someone big.We are a nation of victims.

The United States is about to fall apart. Why? What is the basic reason for this? The immediate reason is that “assets” used and leveraged many times over to provide for a (a) consumer economy and a (b) financial economy based on usury, interest payments for the use of money to fund consumption have lost worth. The main basis for the economy is failing. Everything will seemingly come to an end.  

We have had governments intent on satisfying the pleasures sought by consumers and financiers. Everyone has gone on a binge. The binge was justified by the confusion of liberty with desire for consumption based on borrowed funds. Now we are about to pay the price. The parties of no government are coming forward with plans for lots of government. In the next few weeks the United States Government will commence transfer payments from current and future generation tax payers to bail out one side of the economic equation of consumers and financiers — transfer payments to the financiers.

The government is going to buy bad investments made by money lenders. The government will then own the bad investments. It will then sell them if it can. If it cannot it will collect the money coming in on the assets. If the money does not come in the assets will be turned into investments in real estate. The real estate will then be sold. The government stands to lose as much as a trillion dollars. It stands to lose hundred’s of billions. It is said, it had to do this because if it did not money lending would be substantially reduced and the economy, an economy dependent upon credit, would be severely hurt.

However one describes what is about to happen, the basic truth is this: Government is being used to benefit private parties. The broad group of tax payers will be paying for this benefit to private parties. The government will be robbing Peter to pay Paul. One might ask, did the founders provide this power under our constitution? Does the United States constitution allow congress to tax the people to pay money to some of the people?

It is September 19, 2008 in America. What is your congressman doing tonight?

George Orwell once wrote:

Serious sport has nothing to do with fair play. It is bound up with hatred, jealousy, boastfulness, disregard of all rules and sadistic pleasure in witnessing violence. In other words, it is war minus the shooting.

Law and lawyering is very much like Orwell’s “serious sport.” 

Now of course you will say “not true, law and lawyering are all about ‘fair play.”  My response is that it should be about fair play but in my experience with most lawyers in the real world of litigation  it is not. 

It is particularly not with regard to the so-called “superlawyers” I have encountered.  Often these lawyers (the ones who have amassed wealth from highly paid practices) are people who play on fear, the predilections and biases of judges and juries, ignore the law and facts, submit briefs which are sophistry and in addition use ad homonym in argument, and, sometimes, engage in conduct which is outright illegal.

One of these lawyers was quite up front about his approach to law and lawyering in one of our cases.  Just after the case was filed he called and in an arrogant, self-satisfied and freightening manner said the case will be “war”, that my client and I would find ourselves in a war and that that his juggernaut of power would destroy us.  He said my client had better settle.  For him, law and lawyering was war.  The shear exercise of power.

I did not accede to his threats nor did my client.  I did not because I thought my client’s cause was just and that she had the law on her side.  I imagine most lawyers in the area would have submitted to the fear one our local superlawyers was trying to instill.

For the most part, I must conclude that law and lawyering, the struggles litigation, is war.  The truly freightening part is this – it is supposed to be a civilized war fought by the rules and based upon the application of law.  One will not find such to be the case in the practical experience of the law and lawyering ins some venues, those not in the high places of the law, in the venues of the hustings.  In the places where judges do not have the time, experience, education, inclination or inner drive to truly be good practicioners of the high offices they hold.  There are some who are not this way, but only some.

Where are those few lawyers of the late 60’s and early 70’s who cared about the poor, the outcast, the overwhelmed, the environment, the public trust, the public interest?  They no longer exist, for the very most part.  The lawyers, judges, people who appoint judges, the people who elect judges, the law schools and the professors of law schools no longer remember them and certainly have no regard for what those few lawyers tried to do back then.  The law schools are not inviting people like Fannie Lou Hamer or Martin Luther King to come to speak to the members of the classes about justice.

The lawyers who cared about justice are gone.  The interest in what these lawyers did or tried to do, is gone.  Now the interest is money and success, just that.  There are no lawyers who are looked up to who really care about the real work and purpose of lawyering, justice.

Pro bono work.  Please, . . . Look carefully.  You will only find pro bono work in reality which is the sort of work the successful sort would find acceptible or currently popular.  And, when you do find something which looks like pro bono work, you will be sure to find a group of lawyers who seek to be paid for their contributions.  See the Davis Wright Tremaine claim for fees in a civil rights case involving the Seattle School District.

The world is considerably different than in was in the late 60’s and 70’s.  It is less.  It is not appealing.  It does not claim much goodness from people. 

The only thing which really inspires us today, is money and war.  God help us all.  Sad, it is July 26, 2008 in America.

In an interview with Bill Moyers, Martha Nussbaum, speaking of the tragic sense of life said she thought ethics was founded upon an inner sense or hope that others could be trusted to be ethical, good.   I later read a comment in conjunction with her book The Fragility of Goodness  that

[s]he eventually rejects the Platonic notion that human goodness can fully protect against peril, siding with the tragic playwrights and Aristotle in treating the acknowledgement of vulnerability as a key to realizing the human good.  Wikipedia.

That is to say, it seems, that human goodness is not something which can be achieved in a material world of personal success and safety.  Human good is a matter of the soul.  A matter of the soul maintaining its truth, its unique, silent, forgiving beauty in sacrifice and suffering, as well as. in the humility to which it might attend worldly success and satisfaction. 

Human good is found in suffering.  It may be that suffering is the only soil in which human good can be cultivated and chosen.

Materialism would tie good to success.  But what success?  Of the souls of Nazi Germany, which would we find lasting, honest, worth loving?  Not those who were on the side of those who were predators of their neighbors wittingly or unwittingly.  No, those who disappeared in the ghettos, the camps, the gas chambers, the long marches.  These are the souls for whom one is in sympathy.  These are the souls for whom compassion and selflessness aspire to become one with.  One must ask himself, where does my love reside?  Where indeed?  With butcher or the butchered?

Martha Nussbaum seems to be aware of the truth.

Martha Nussbaum speaking to Bill Moyers about ethics, trust in others and the hope of such trust, and tragedy on YouTube here.  For more about Martha Nussbaum see Taimur Kahn’s website.

The Washington Court of Appeals, Division Three, decided another case dealing with whether the Washington Public Disclosure Act (RCW Ch. 42.56) applies to non-public entities which provide government services at the behest of the government. Leonora Claire Clarke v. Tri-Cities Animal Care & Control Shelter, No. 25222-1 - III (Apr. 24, 2008). In this case, the court held the PDA did apply.

The issue was the same in Spokane Research & Defense Fund v. West Central Community Development Association, 137 P.3d 120, 133 Wash.App. 602, pet. rev. denied (2006). In this case, the court held that the non-public entity providing government services was not subject to the PDA.

So what was the difference? When one looks at the facts of the cases one will find that the facts of each are not fundamentally different. One will also find that the law applied in one is the same law applied in the the other. The similarity of facts is further enhanced by virtue of the legislative dierection that the PDA is to be liberally construed and liberally applied. RCW 42.56.030.

So what was the reason for the difference? There can be no reason based upon the law. There can be no real reason based upon the facts. So why is there a difference? Is it the judges — not really, because two of the judges were two of the three in both cases. The author of the second opinion (D. Stephens, J), the one in which the court reached the right result under the PDA is clearly a better judge than the other two and significantly better than the judge who was not on the panel in the second case. In addition, this judge is clearly a better thinker than the judge who was the author of the first decision ( S. Brown, J).

So what was the difference for the judges who were on both of the cases? Why did they act inconsistently? The only conclusion one can reach is that for these two, irrational processes were at stake. Maybe they liked the plaintiff in one case but not the other, maybe they had a disregard for one or more of the attorneys, maybe the services the agency was performing in one case were more appealing that than the services performed by the other? One could only guess.

In any case it looks as though at least two judges on the Court of Appeals make decisions based upon irrational factors at least as far as these two cases may be concerned. That is, they decide cases arbitrarily and not according to the law and the facts. More troublesome is that these judges seem to allow the court to be used for purposes of the dispensation of power based upon the arbitrary whims of the judges.

The court affords the protection of the law to some but not to others. Its actions are arbitrary. They are political. They constitute the use of power for some and the denial of the power to others in cases which are essentially the same.

A fallacy of logic is a method of reasoning that does not have a sound basis in reason.

One fallacy we have quick recognition of is ad hominem argument  or  argumentum ad hominem (Latin: “argument to the man”, “argument against the man”).  Using this fallacy, one replies to an argument or factual claim by saying something about the lack of goodness of the person making the argument or claim, instead of responding to the substance of the argument or producing evidence against the claim.  This approach is not uncommon in our courts of law and courts of equity.  Sad to say.

Another fallacy of logic is the inverse of argumentum ad hominem.  It is argumentum ad verecundiam.  (Latin: “argument to respect”).  Using this fallacy, the person making the argument bases the truth value of an assertion on the authority, knowledge or position of the person asserting it.

This approach is more common in our courts of law and equity. 

For example, every day in a court here or there one can witness judicial decision making which leans to the side of a case which is presented by a person who is in a firm which has the respect of the local judiciary.  This is one of the reasons why many lawyers find it essential for them to do their work from the law firm which has a the appearance “good reputation” in the local community.  This is also why clients will seek out the lawyer who is doing his work from a law firm which has the appearance of a good reputation.