girl ipsa loquitur: 07/04/2004 - 07/11/2004 Email me!

Saturday, July 10, 2004

Isn't it Ironic?

[Click to read]
Ever since Alanis brought us her ode to irony, people have been confused about what irony truly is. Rain on your wedding day? Is this, in fact, ironic? I guess if you have the intellectual depth of a puddle.

Here is my favorite example of irony. Prince changed his name to a symbol. He intended to be freed from the "word" that represented him. That's funny. The result was that almost everyone assigned words to represent the lack of words to represent Prince and he became "The Artist Formerly Known as Prince". Or, if you are very clever, he became "The Artist Represented by an Hermaphroditic Ankh with Bi-secting Tao Cross".

He found "Prince" too unwieldy and traded it for the ultimate in too unwieldy ~ Lots more words coupled with the urge to giggle every time you say them. I don't think that's what he was going for. But it's what he got.

That is irony.

I love language. It comes with rules and concise meanings. It makes explaining things to other people so much easier than grunting and pointing and jumping up and down. And I really love legal language. I will never forget the day I first learned about the legal term of art. It was like Christmas had come on the wrong day! I just got up that morning and there was a present for me that I didn't even know I was getting. My first little secret admirer gift from the law. (If you hang in there with Girl Ipsa Loquitur I'll have occasion to tell you about the whole affair I am having with the law)

The legal "Term of Art" is a precise use of a word or phrase acquired in a particular context, apart from it's general meaning. It is Lawyer code. Some of it is Latin (Res Ipsa Loquitur) but some of it is just every day English, imbued with special meaning. Special legal meaning.

Hang on a minute. I have to pause to savor that special legal meaning.

Malice Aforethought is a term of art. My mother used to use this term all the time when I was a kid. Someone was always doing this or that with malice aforethought. "Why would you do this? With malice aforethought!" (In her defense, I was doing all sorts of incomprehensible stuff as a kid, but none of it with a man-endangering state of mind)

"Reasonable" has to be both the best and the most contended legal term of all time. Everything turns on whether or not it is reasonable. Sometimes it's subjectively reasonable. Sometimes it's objective. It's average unless you are a specialist and then it's special. And who says what's reasonable? The judge, most times. But what standard do we evaluate him by? A reasonable standard, of course. Aren't most judges reasonable by definition? Judicial? And isn't it therefore reasonable to think that everything they do must be reasonable by definition? So, you are acting reasonably when you act like a judge. Whew! This gets me off the hook with the Dean for yelling "Rusty! Escort him from my courtroom." during remedies class last semester.

Is it any wonder that the neophyte gets lost trying to sort out what the lawyer has said?

So many people roast President Clinton (I started to write Mr. Clinton but quickly reminded myself that I like the guy.) for that infamous response;
"Depends on what is meant by is."

Hello? He's a lawyer. Everything depends on what is meant by everything. It's a wonder that anything ever gets settled or resolved in the law. But it does. Most times decisively.

So, I look forward to the legal jousting and wrangling with words, I really do. But the day to day application is far more satisfying. Like at the grocery store. When the produce guy says to me "Hey lady, did you know your kid is sitting in the freezer?" I can always say "Depends on what is meant by sitting."

Friday, July 09, 2004

Lets just shoot Sadam!

[Click to read]
Over the week-end I had the chance to hang out with some new folks. (New to me) They are just your general every day people, with jobs and kids and a mortgage. Not lawyers and not law students and not self proclaimed know-it-alls. In other words, not like me.

The conversation turned to current events which included a recent punk rock concert (I'll talk punk rock all night) and this nutty little thing, you may have heard of it?, IRAQ.

Now I am going to say something that will be hard to believe. But you're just going to have to take my word for it since you weren't there and I was. I didn't say a thing. I swear on a stack of People magazines that I never opened my mouth. I know when I am out numbered and I am not completely insane. I was just an observer of the natural course of events, rather like Jane Goodall and her chimps. Or more like Steve Irwin and his crocs (Will you look at the TEETH on this girl!)

The question was posited; "Why don't they just kill Sadam?"

For a very long time now, longer than I've been a law student, I've had a half baked notion that there is an entirely separate body of psychology that applies only to mobs. Mob Psychology. With its own set of rules. (This is sort of like my idea of "Traffic Psychology" which has each individual car losing its separate identity and just becoming part of the whole monster that is rush hour) I'll call this notion a notion because I have no idea what psychologists have to say about how a person behaves in a mob. I'm sure they have a lot to say, but I am just making this stuff up for now.

So, the individual is subsumed by the MOB and becomes just another decibel in the MOB voice. When the MOB becomes singular (Less than the sum of its parts) it loses it's ability to reason. It is a one-trick-pony.

At the end of World War II we had an especially fat MOB pony, much like the one we are contemplating here. That MOB said "Lets just take those Nazi's out behind the barn and shoot them." (Well, I never said that the MOB was always wrong) And why not? We knew darn well that they were guilty. Guilty of such horrible acts that it nauseates me to even think about it now. The entire world was screaming for retribution, for revenge, for closure. The MOB wants what it wants.

But we didn't just shoot them.

We tried them in an international court of law. We gave them the best criminal defense that was available, we let them put on their evidence and make their arguments, we followed the rules and then we found them guilty. The United States, through a favorite son Justice Jackson, had a great deal to do with that course of events. And I am proud of us. Proud to be a part of a system that holds the rule of law and reason above the fray. Proud to stand for an ideal, which should remain steadfast even in the face of the MOB.

So to say I was shocked to hear the question asked by an adult citizen of the United States is probably a little exaggeration. I was not shocked. But I was disappointed. The very simple answer to that question is because it would be wrong. We don't just shoot Sadam because it's wrong. Do the heart felt longings of the MOB alter right and wrong? The contentious part of me wants to say "depends on what is meant by wrong".

Being a right person, being an ethical person, certainly depends on the environment in which we exist. And also, perhaps, on the knowledge which we possess. What that really boils down to is "The Big Picture". A frame work, of rules and ideas and principles, to operate in. Without this everything would be chaos. Even if you could predict with reasonable certainty how you yourself will act, there is no way to figure out what the next guy might do. So we all rely on The Big Picture, we rely on the rules, every day. We depend on them. I worship them.

Why, then, do we have this urge to just toss The Big Picture out the window every time we imagine it will suit us? We can say that generally it is not ok to just shoot some guy but we sure should just shoot Sadam. How many people would hesitate to kill Hitler if they got the chance? (assuming time-travel, opportunity and knowledge of the future of course. It's an intellectual exercise, don't nit-pick it)

Is it right to kill Hitler? Even though we know what he would do if we just left him alive? I don't honestly know. The RULES tell us no, it would be murder. Maybe I can provoke him into some kind of life and death struggle and then magically prevail. But if I provoked it, can I still plead self defense? What about defense of others? That won't fly, harm is not eminent. (about the only defense I've heard that might work is the old "He needed killing" defense which will work with some juries still) However, all of this requires either time travel or iron clad knowledge of the future. I will stand very firmly on the proposition that if we had Hitler TODAY he should be tried, not just shot.

This comes up a lot in the law. When does the end ever justify the means? According to the MOB, every time an illegal search turns up evidence of a crime. Or every time a "profile" stop results in probable cause, instead of the other way around. Or every time we are really, really, really sure the guy did it.

I realize that my empirical popular opinion sample has no research value other than to raise the issue. I sincerely hope that MOST Americans believe that Sadam should be tried, fairly, then punished according to the law. But this remains the right thing to do regardless of how many, or how few, Americans agree with it. Its fun to be popular. (or so I've been told by those that have been popular) But the measure of any ethical person is not their ability to be popular. It is their ability to do the right thing in the face of unpopularity.

"To live is so startling it leaves little time for anything else." ~ Emily Dickinson

"Ouch!" ~ Mrs. Palsgraff

Quis Custodiet Ipsos Custodes?

Be sure to read A Criminal Waste of Space
& check out BAD Reporter

Thanks for reading Girl Ipsa