Saturday, March 28, 2009


You may have noticed that I did not post yesterday. Never fear; I am still here. I am just on vacation. Sometimes even I need a break, and for the next few days I will be resting my mind here in Berlin. I will try to post while I am here, but likely I will be too busy with fun to get anything serious done--if I can call my posts "serious." My little break has already done me well. I am feeling rested, refreshed and invigorated. And whenever I travel abroad, my critical faculties kick into overdrive. I see new things and compare them to things I already know. I never stop learning and analyzing. You can be sure that I will have a bevy of new critical insights when I get home. Remember: We are still in a financial crisis, the dollar is still weak and we are still at war in Iraq. Plus Britney is getting therapy and the baseball season is about to start. There is definitely no shortage of important issues to discuss.

In all sincerity, thanks to all who log in to read my posts. It means the world to me. You all keep me going. Rest assured that the reason, commerce, justice and free beer will continue flowing for a long time to come.

Until next week, auf Wiedersehen!


Thursday, March 26, 2009



As a cynic, I love Niccolo Machiavelli. Writing around 1500, Machiavelli understood that men are deceptive, vainglorious, fickle, petty, violent, manipulable creatures who act solely from self-interest. He bases all his arguments upon this bleak view of humanity. Sadly, common life experience all too often proves him right about men’s motives. Many people recognize his famous maxims from The Prince, namely: “It is better to be feared than loved;” and “The ends justify the means.” In Machiavelli’s world, principle means nothing compared to brute force. It only matters to the extent a ruler seems principled, when in fact he resorts to any means necessary to gain and hold political power. In short, Machiavelli is a cynic. He assumes that men have bad, selfish motives. He admonishes us to plan our interactions with other men with that assumption in mind.

True, we no longer live in Renaissance Italy with its perennial violence and political discord. But Machiavelli’s observations about men and means remain relevant to any human enterprise involving power. I often write about principle and honor. I praise men who adhere to abstract principles, not expediency. Honor refers to a person’s abiding principles. Honor bars men from adopting certain means to accomplish their goals. Machiavelli’s writings, on the other hand, remind me that honorable men rarely achieve or hold power in this world. Instead, only those who espouse honor—yet resort to treachery—win. Powerful men, in other words, live for appearances and results, not principles or conscience.

In The Prince, Machiavelli commonly reaches conclusions after examining historical examples. He typically chooses an example from antiquity, then an analogous example from his time. He draws similarities, analyzes salient elements, then presents conclusions that serve as advice to rulers who find themselves in comparable circumstances. In Chapter 8, Machiavelli examines rulers who achieve power through “crimes.” In the ancient example, he tells us about Agathocles the Sicilian, a “low and abject” military leader. The Prince at p. 36. Agathocles gathered every important Syracusan citizen in one place, telling them he wished to advise them about state affairs. At a signal, he ordered his troops to kill them. With all opposition destroyed at a single blow, Agathocles took over the government. For years afterward, he ruled decisively. Machiavelli even calls his statecraft: “Courageous and perilous effort[].” Id. at p. 37. Still, Machiavelli judges: “Still, it cannot be called virtue to kill one’s fellow-citizens, to betray one’s friends, to be without loyalty, without mercy, without religion; by such methods one can acquire power, but not glory.” Id.

In the modern example, Machiavelli tells us about Oliverotto da Fermo, a fatherless minor nobleman from Fermo. Due to his precarious family situation, Oliverotto’s uncle stepped in to raise him. The Prince at p. 37. At a young age, Oliverotto set out on a military career, during which he demonstrated “intelligence and vigor of body and mind.” Id. That aptitude led him to become the army’s commander. After many years, he decided to return home. He wrote to his uncle and asked that he be given a royal welcome because he had won many honors as a soldier. His uncle agreed. After arriving in Fermo with a whole troupe behind him, Oliverotto told his uncle he wanted to celebrate with a banquet. Every important citizen in Fermo appeared at the banquet. After dinner, Oliverotto advised that he wished to speak with the city governors in private. Along with Oliverotto’s uncle, they followed him into a separate room. Machiavelli describes what happened next: “No sooner were they seated than out from hiding places in the room came soldiers who killed [the uncle] and all the others.” Id. at p. 38. With all opposition crushed, Oliverotto took over the city and ruled it well until he died the following year. During his reign, his neighbors respected him and he withstood every attempt to dislodge him from power.

Machiavelli queries: “How it happened that Agathocles and others like him, after countless treacheries and cruelties, could live secure for so long in their native country…while never being conspired against by their own citizens.” The Prince at pp. 38-39. In answering this question, Machiavelli condemns both Agathocles and Oliverotto for their “wickedness and cruelty.” But he also praises them for effectively seizing power and governing well. On the whole, Machiavelli has more praise than condemnation for these “criminals.” True, they may have acted “dishonorably” to achieve their positions, but what does that matter? For Machiavelli, the real sign of success is whether a ruler keeps order in his State, defends it against foreign enemies and frustrates any attempt to depose him from within. Both Agathocles and Oliverotto fulfilled those criteria. By that standard, then, they were “good rulers.” In short, their results speak louder than the means they used to reach them.

Why be honorable? If criminals win accolades from Machiavelli, does it not make more sense to adopt nefarious, underhanded means to achieve goals than to follow a restrictive honor code? In Machiavelli’s world, an honorable man would never achieve power in the first place because a dishonorable criminal would kill him first. This may seem harsh. After all, in our society we equate the word “honor” with “good people” and “criminals” with incorrigible vagrants who never achieve success. But these generalizations are misleading. And they understate human beings’ remarkable capacity to deceive and hurt each other for personal gain. “Honor” implies that a person refuses to adopt certain means to win success. “Criminals,” on the other hand, are not afraid to trample “honor” in order to win. Criminals are flexible; honorable men are not. In this competition, the criminal will win. Machiavelli may condemn the means, but he would approve the end.

Machiavelli offers one important caveat to those who use “crime” to achieve success. He says: “[Success] depends on whether the cruelties are used well or badly. Those can be called well used (if it is permissible to say “well” about evil) which are done at one stroke, out of the need to make one secure, and which afterward are not persisted in, but are converted into the greatest benefits possible for one’s subjects.” The Prince at p. 39. In this formulation, we sense that Machiavelli does not use the word “crime” as we understand it. For him, “crime” means “violent cruelty,” not any trifling violation of the criminal code. “Violent cruelty,” in turn, represents a means “to secure oneself” and to win “benefits” for one’s people. Machiavelli tells us that violent cruelty works best when it happens “at one stroke” and “is not persisted in.” After all, people do not like cruelty. If a man is repeatedly cruel to enough people, he will be hated. But people forget quickly. If a ruler commits only one sweeping act of violent cruelty that provides long-term benefits to his people, he will not anger anyone.

Again, I ask, what good is honor? A truly honorable man would not commit even one unjust act against anyone, no matter what benefits it might bring. Honorable men do not employ certain means. They would love to bring benefits to themselves and others, but if the end requires unjustifiable means, such as murder or deception, an honorable man would not employ them. “Criminals,” on the other hand, face no such principled qualms. They do not hesitate to use violence if violence brings them long-term success. No moral code binds their behavior, and they actually win praise for dishonorable acts. If human beings are naturally selfish and vain, why would they adopt honor over crime? After all, if crime offers better opportunities to please oneself and others—with little risk of loss—why would anyone adopt the more difficult, honorable path? Who willingly fights a battle with one hand tied behind his back?

Self-interested people think about the most effective means to obtain personal gain. The most effective means are not necessarily the most honorable means. In that light, should it surprise us that there are few honorable men in the world? Sadly, Machiavelli’s political theory squarely answers that question for us: No.

What if long-term economic recovery in this country could only be achieved by murdering 100 paralyzed children? What if economic recovery would permanently secure a political leader’s reputation and power? Would Machiavelli support cruelty to achieve these ends? Would an honorable man?

Wednesday, March 25, 2009


By : Mr. T. Garnett Bonds, M.A., Concerned Citizen and Member of the South Philadelphia Property Improvement Association

In life, we must cultivate enthusiasms. Without them, life becomes bland and unexciting. When we embrace our enthusiasms, life takes on a new vibrancy. Our enthusiasms express our personalities. Through them, we tell the world what we enjoy. In them, we experience our happiest moments. By them, others remember us. Men remember Cal Ripken, Jr. for his boundless enthusiasm about baseball. He just loved taking the field every day; you could feel it. That enthusiasm expressed his personality and others could see how much he enjoyed baseball. Put simply, when we live for our enthusiasms, we live full, enjoyable, memorable lives.

Enthusiasm makes us interesting people. Enthusiasm arouses our passions. Others can sense our energy when we are enthusiastic. It does not matter whether you are enthusiastic about model airplanes, skydiving, ornithology or swimming. You can be enthusiastic about anything. When you talk about your enthusiasms, your spirit brightens, you smile and people find you interesting. It is fun to talk to interesting people, and enthusiastic people are always interesting.

I am an interesting person because I have many interests in property. I am enthusiastic about property—and it shows. I am enthusiastic about the Pine Row Shopping Center on Route 45 in Camden because I own it. It brings in $56,000 per month in rent, and that makes me enthusiastic. I am also enthusiastic about my YouFirst™ HMO derivative portfolio because I own a diversified array of debentures, long-term notes, bonds, securities, account entitlements and other valuable commercial instruments. Even in the darkest economic climate, my derivative portfolio keeps on paying, and that makes me enthusiastic. When I talk about third quarter profits, my spirit brightens and I smile a lot. I think good thoughts because I see cash coming in. How can you not be enthusiastic about cash flow? When I talk about my property, I show that I am an interesting person. After all, I have many interests in property.

It is important to have interests. Interests give us enthusiasm. Some people are interested in art. Others are interested in classic cars. Still others are interested in new local restaurants and bowling alleys. I, however, have other interests, specifically, interests in property. I have a 45% interest in the popular Cold Water Pub in downtown Philadelphia. I also have 55% interest in Malden-Meyer Waste Management Associates, Inc. I have a controlling interest in a family-owned mortgage brokerage house in Fall Grove, Pennsylvania, and I own two 2008 Cadillac Escalades outright. All these interests combine to make me an interesting person. How can I not be interesting if I have this many interests? The way I see it, if you have a lot of interests in property, you are an interesting person. And if you have interests, you are enthusiastic.

My interests make me enthusiastic. When I heard that my 33% interest in the South Philly Raptors Baseball team yielded a $4,000,000 post-tax profit in 2007, I felt very enthusiastic. I wanted to call out for joy. This example proves that interests lead to enthusiasm. Furthermore, interesting people experience more enthusiasm than people without interests. True, there are interesting people without property interests, but they are not as enthusiastic or as interesting as people with diverse property interests. A 15-year-old high school student with long hair and a tye dye shirt may pass for “interesting” at Prescott Preparatory School in West Twining, New Jersey, but a 56-year-old investor with numerous interests in coal futures and real estate here in the Philadelphia area is a much more interesting person. It is all about interests: If you have more of them, you are more interesting.

Consider me. I have many different interests. I told you about my business interests and my interest in the local South Philly Baseball team. But I also have many interests in land. I have contingent remainder interests in several plots in Garfield Park, plus a vested nondefeasible fee tail interest in my mother’s 45-acre plot in Harbury Heights. I have a fee simple interest subject to a right of entry at 2365 James Road in Emden, while I have a springing fee simple determinable interest in my father-in-law’s house at 54 Granite Drive in Far Tawnygrass, Delaware. Beyond my real estate interests, I have many security interests. I have perfected interests in $3,000,000 worth of chattel paper held by one Mr. Francis G. McCormick, Esq. of Chicago, Illinois. I also have a perfected, registered interest in all the inventory of the Mack Sporting Goods Store in East Butterfield. Additionally, I am happy to hold an imperfected general security interest in all household goods possessed by Mr. and Mrs. Tom Franklin Sr. of New Falkirk, Maryland. If these folks default, I have a right to seize their fee simple interests and make them my own. When that happens, I will have even more interests in property than I do now. And when I have more interests, I become a more interesting person. How can I not be enthusiastic when I think about that?

Some say that I am not very interesting. They say that I am a cash-grubbing ornery old skinflint who only thinks about money. They say I stay at home all day and make angry telephone calls to lenders, debtors, lienholders and shareholders. They say I never go to the movies and prefer to just eat steak dinners with my sometime wife. They say I have no hobbies and stare at my bank balance all the time.

These complaints are exaggerated. My detractors do not know what it means to be enthusiastic or interesting. In my opinion, you cannot be interesting without interests. I have far more interests than my detractors, so that makes me more interesting than they are. And only interesting people can be truly enthusiastic. If you are more interesting, that makes you more enthusiastic, so that means I am more enthusiastic than my detractors. They can criticize my lifestyle all they want. I will remain enthusiastic about my interests—and I have a lot of them. I may not sing opera or make amusing videos on You Tube, but I own more stock, land and chattel paper than most people. I have many interests in property, and that makes me an interesting person.

We all have a right to pursue our interests. Some interests, however, are more valuable than others. A 51% interest in Parking Systems Philadelphia Ltd., for example, is worth $13,129,648.23, while a general interest in Miles Davis is worth nothing but some personalized psychic satisfaction. In my book, it is much easier to be enthusiastic about $13,129,648.23 than some trumpet squeals from the 1950s. I am enthusiastic about my interests. I have a lot of them. That makes me a very interesting person.

I am sure you would like to meet me. I would love to speak with you about my interests. You will sense my enthusiasm when I do. Did I tell you about my 67% interest in the North Brighton Dairy Farm? There is nothing better than talking about interests. Who does not love an enthusiastic conversation with an interesting person?

Tuesday, March 24, 2009


By : Mr. Ferguson A. Coxwell, Esq., Managing Partner & Senior Litigation Fellow, Tittley, Jiggelmann, Nippler & Rackenbacker, LLP, Attorneys at Law Specializing in Class Action Litigation (Named “Best Hands-On Client Service Firm” in 2005 by the American Breast Health Institute, A Medical Trade Association)

Inquiry is made concerning the weekend plans of aforenamed attorney and counselor at law and equity, Mr. Ferguson A. Coxwell, Esquire, Order of the Coif, Attorney No. 45612, propounded this 24th Day of March, in the Year of our Lord 2009, subject to all qualifications, express and implied, under law, in the City, County and State of New York, all other States notwithstanding.

COMES NOW MR. FERGUSON A. COXWELL, ESQUIRE, resident in and for the City of New York, County of New York, State of New York, Country of the United States of America, Hemisphere of the West, Christendom, Republican Party, et. seq., being desirous of a speedy and expeditious answer to aforemade Inquiry concerning Weekend Plans (hereinafter “The Inquiry,”) propounded, constituted, authorized, formulated and presented under law, notwithstanding and pursuant to any qualifications thereon, applicable thereto or terminable wherethrough, by and through himself as attorney in fact, implied in law or rendered in equity, speaking under any and all reservations as conditionally provided in the Master Subordinate Attorney Retention Contract (hereinafter “The Contract”), Definitions Section, § 12A(2), and hereby maketh the following disclosures, subject to law and without waiving any legal defense whereto aforesaid attorney may be, is, will be, was, has ever been, should be, of right should be, and by deduction must be entitled, notwithstanding any applicable evidentiary exceptions, qualifications, limitations, exclusions or inclusions (except as otherwise provided):

I, as attorney for, of, to the benefit of, on behalf of, as agent of, by whose authority I by action I do so ever make, do, say and maintain, pursuant to any and all contractual, fiduciary, moral, ethical, quasi-contractual, equitable or quasi-equitable duties, be they known, unknown, constructive, active or transitory, the American Breast Health Institute (A Medical Trade Association), hereby intend to go, by conveyance later to be determined under law, exception to which is hereby taken in cases in which contrary law be referenced in contradistinction hereto, unless such contrary law be nugatory as hereinafter provided or pursuant to Consent Decree as such term is defined in the Subordinate Master Second Amended Management Order Concerning Construction (“The Management Order”), to the beach this Saturday, March 28, 2009 at 9:15 AM, or as soon thereafter as counsel may be heard, unless, until, and on the lesser condition that supervening Firm Business doth appear render such intention void ab initio, sub legis, contra bonos mores or malum fides, in which case no intention shall be honored pursuant to any and all Discovery Orders applicable hereto; it being expressly provided that such intention in all events shall be valid notwithstanding aforesaid Firm Business, be it supervening or not, if such Discovery Orders, having been done, signed, ordered and ordained by and through that certain Judge, the Honorable Martin A. Dingler, sitting in and for the County of Cuyahoga, in the State of Ohio, Country of the United States, Hemisphere of the West, Christendom, appear in law to have committed, conspired to commit or attempted to have committed Mutual Mistake, as reported in the case of Mulberry v. Johansen Dairy Consulting Group Ltd., 354 S.W.2d 412, 423 (Ark. 1962)(obiter dictum), whereby, such lesser provision having been fulfilled, aforesaid intention shall remain in full force and effect, notwithstanding and pursuant to any and all foregoing provisions made herein. In the event that aforesaid Attorney, Counselor, Advisor in Law and Notary doth realize above-named intention, aforesaid Attorney, Counselor, Advisor in Law and Notary shall, subject to any and all statutory limitations, qualifications, reservations or gesticulations applicable hereto, be such limitations constitutional, extralegal, odious, obnoxious or fetid (as such term be defined in the Model Olfactory Code, (MOC) Title IV, Subchapter A (Foule & Rancidde Odours Offensive to the Palatte), as amended, but not superceded), place down a beach towel upon above-described beach, there being no legal, moral or ethical barrier obstructing the same, notwithstanding any contrary mandate of the Attorney Registration and Disciplinary Commission (ARDC) concerning the laying of beach towels by attorneys (including supplementary rulings, unless such rulings have been declared invalid on appeal; but invalid rulings shall apply with full force and effect if made on Wednesdays), counselors and gesticulators at law, membership wherein this Author doth hereby admit and declare, subject to all privileges and evidentiary exclusions permitted by law, exception to any contrary contention is hereby interposed, the Author therethrough disclaiming any prohibited purpose or legal intent to defraud; it being expressly declared, averred and admitted that said towel be placed for no reason other than Relaxation, as such term be defined in the Model Attorney’s Guide for Responsible Weekend Behavior, reference whereto is hereby and for all time made, this Author having averred, stated, claimed and sworn, pursuant to oath and under penalty of perjury, so help him God, that he adhere to such Guide, unless such Guide be contrary to law, in which case this Author, having sworn pursuant to oath and under penalty of perjury that he be for all time a responsible, ethical, moral and respectable Officer of the Courts of the State of New York, shall not adhere to such Guide, to the extent and to the degree that such guide espouseth any claim, belief, opinion, rumination or intimation that any Behaviour be moral, when it be in fact immoral; or ethical, when it be in fact unethical; or good, when it in fact be bad; or normal, when it in fact be abnormal et &c; when such claims be herewith and forevermore held contrary to law, this Author expressly disavoweth any and all intent to adhere to same, notwithstanding he hath already adhered, it being recognized that this Author followeth the Law, even if such Law be contrary to Right. Now, therefore, this Author, having spread aforesaid Towel upon aforesaid Beach, and having averred that such conduct, intent, plan and Behaviour be in no Wise contrary to Law or Regulation, hereby expresses his further plan and design to remain upon aforesaid Beach until such time as Firm Business doth require the termination of aforesaid Remainder upon aforesaid Towel upon aforesaid Beach; but in no event shall such Termination occur until at least 11 AM upon the forenoon of that certain Saturday, March 28, 2009, it being declared, understood and recognized in both law and fact that this Author requireth Relaxation at least between the hours of 9:15 AM and no earlier than 11 AM upon that certain Saturday, March 28, 2009, claim whereto is hereby made subject to all solemnities, ceremonies and forms provided by law. Such plans having been made, and full disclosure thereof having been given subject to all applicable privileges, evidentiary exclusions and authorities as cognizable legally, judicially and culinarily, except in such cases wherein such privileges, evidentiary exclusions and authorities be declared inapplicable pursuant to notice and argument, there being no contrary consideration on prudential grounds, claim to which is hereby made in any and all cases in which such considerations, if any, be found and/or asserted, notwithstanding the inassertability thereof, waiver whereof is hereby expressly controverted, this Author shall be accessible by telephonic, electronic and tele-electronic means upon aforesaid Towel upon aforesaid Beach at aforesaid times, provided that any and all communications involveth only Firm Business; but in no event shall communications be initiated and/or accepted when Author be engaged in Inebriation Activities as such term be defined in the Model Alcoholic Consumption Act, as amended (see generally, §§ 34-39, et seq., “Inability to Telephonically Respond on Grounds of Being Statutorily Shitfaced”).

It is so ordered.

Monday, March 23, 2009


I have learned many things by studying German. Germans tell me I have reached “near native” ability, but there are always peculiar words and expressions that elude me. Foreign languages always remain foreign languages, no matter how long you study them. There comes a point beyond which you just cannot really learn any more. If you were not born with a language and did not experience early life with it, you will never achieve the limited fluency you achieve later by abstract, theoretical study. That is not to say that you cannot learn languages later in life. It simply means that you can never master all the idiomatic intricacies that native speakers naturally sense when they speak, read and write. That is a cultural inevitability.

For me, German has been an adventure. From my earliest childhood, I have been fascinated with Germans and their language. I could imitate German when I was a child, but I did not start learning the language until I was 18. For some reason, it was an easy process. I have studied many other foreign languages in my life. But none came as easily as German. It came to me almost by second nature. For years, I have tried to understand why. Was it my ancestry? My family line traces partially back to East Prussia and German-speaking Protestants in modern-day Poland. One hundred years ago, my great-great grandfather was a newly-arrived immigrant in Connecticut who spoke no English at all. By my mother’s time, no one spoke German in my family. Then I resumed the family tradition by speaking German again. Perhaps it is easier to learn your ancestors’ language if only a single generation separates you from it.

German is remarkably similar to English. As a native English speaker, that could also explain why it was relatively easy to learn. In centuries past, English looked even more like German than it does today. They both come from a common “Germanic” tradition. Over the past 300 years, English has changed drastically by assuming numerous French and Latin-based words. Even its word order, grammar and spelling have changed. German has not changed as much. German still retains peculiar rules for spelling, word order and grammar. English used to have similarly peculiar rules. Like the Germans, we capitalized all our nouns (read the Constitution; almost all the nouns are capitalized) and we combined prepositions to create words like “thereof,” “hereby” and “whereby.” The Germans do that all the time, as in “davon,” “hiermit” and “wobei.” Now, English speakers simply say: “I haven’t heard of that.” In times past, they said: “Thereof have I not heard.” Germans still use the old-style syntax: “Davon habe ich nicht gehört.” To understand German, you simply must imagine that you are speaking old-time English. If you can do that, the two languages appear virtually identical.

English used to distinguish between formal address and informal address with the words “You” and “Thou.” “You” was formal. “Thou” was informal. German retains the distinction. In formal address, Germans use the word “Sie.” In informal address, they use the word “Du.” Our linguistic heritage provides an easy explanation for this. In English, the sound “th” is unusual. Many foreign speakers cannot make the sound because it does not exist in their languages. In times past, however, the English “th” used to be a hard “t” sound, almost a “d.” That explains why German words with a hard “d” generally have English counterparts containing “th.” “Du” became “thou.” “Doch” became “though.” And “durch” became “through.” In passing, you can also see that the soft English “gh” used to be guttural, matching the German “ch.” With time and study, these similarities and interrelationships become obvious. They have led me to the conclusion that German and English are extremely close linguistic relatives. Thus, if you can speak English, you simply need to make a few systematic changes and you can speak German. You just need to cut through the Franco-Latin underbrush that has grown over the basic Germanic roots. In some cases, the roots are still visible. “Der Finger” in German still means “finger” in English. “Der Fisch” means “fish,” and the list goes on.

Once I achieved some proficiency in German, I began reading original German texts. This was a remarkable adventure. From philosophy and literature to law and history, I gained insights into a new world of ideas. Many great German texts have not been translated into English. By reading books in German, I began to understand that there are different ways to approach problems and different ways to discuss them. Language channels thought, and when you can speak a different language, the thoughts come out differently. German can analyze ideas and create concepts in a way different than modern English. True, It can be difficult to read. But it is worth the effort.

I spent three years studying American law. During that time, I read almost without pause. I learned how to examine arguments and writing styles. Nonetheless, almost all American judicial writing follows some common patterns. For one, it draws on a common Anglo-American legal tradition. Second, it applies English rhetorical techniques that only make sense within the Anglo-American value system. Third, it is in English. That may sound prosaic, but I mention it for a reason. English has limitations. It is difficult to create concepts in English without clumsily splicing ideas together with “ofs,” “fors” and “-ations.” English sloppily splits and reconstitutes ideas in ways that German does not. When it comes to the law, such imprecision can be confusing.

During my last year in law school, I opened Immanuel Kant’s “On the Metaphysics of Morals.” After studying Anglo-American law for almost three years, I was stunned to see a legal work written with such conceptual coherence. The concepts were well-defined. The arguments were logical and concise. There was no muddling about facts. There were no tedious exceptions or qualifications. There was no bad writing or English double-talk. There they were: Concepts and arguments in clear, concise, precise German. Yes, it was difficult to sift through the writing at first. But it is difficult to grasp any legal concept during your first encounter with it. After reading Kant just once, however, I felt like I understood a whole lexicon of new ideas. Unlike American judges who fashion ponderous “fact-based” tests and bizarre English grammatical conundrums such as: “Unless it requires proof of an element that the other offense does not,” Kant labeled his terms, defined them, then made arguments based on them. It was remarkably intuitive. And I have never forgotten them. I re-read them when I must, but unlike American cases and statutes, I do not need to constantly re-read them just to understand what they are saying.

This is the problem with English: There are so many different ways to say the same thing that it can be difficult to grasp immediately what the author is talking about. Studying German made me appreciate that. That is why I strive to be as clear as I can in my English writing. I do not want to confuse; I want to enlighten. I want people to know what I think. You can’t do that if your reader has to re-read your sentences forty times before guessing what you mean.

Lately, I have been reading the German Civil Code, Germany’s all-encompassing authority on civil law. Germany does not have a system in which a contract defense may exist in Arkansas but not in Nebraska. It does not have fifty disparate tribunals that pronounce different legal rules for negligence by referencing strange facts from ancient cases. Rather, it sets forth a uniform standard for claims involving private parties, no matter the facts. Even the concept “tort” makes more sense in German: “Impermissible Acts (Unerlaubte Handlungen) Bürgerliches Gesetzbuch § 823.”

I think it is helpful to understand how other countries resolve legal questions. Although Justice Scalia rejects reliance on foreign law to understand American law, you do not have to use foreign law as a means to decide cases. You can deepen your understanding about the law in general by examining how other countries think about the same issues. Actual reliance on German law to decide an American case presents technical problems in the American federal system. But there is nothing wrong with keeping an open mind to other legal traditions merely for enrichment. Justice Scalia is hostile to all foreign law because he thinks advocates will use it to warp American legal traditions. See, e.g. Roper v. Simmons, 543 U.S. 551, 622-630 (2005)(Scalia, J., dissenting). He buttresses his argument with familiar republicanism by claiming that the “American people” adopted their legal traditions and judges have no right to import European replacements without democratic consent. I do not sound such alarms. I simply believe that it is beneficial for any perceptive person to understand how other countries approach legal problems. I have a simple rule in this regard: The more you know, the better you are. And you can make better decisions if you know more than if you know less. Justice Scalia’s hostility to foreign law proceeds on the rationale that it is better to know less than more. In my view, that is not a good policy.

I often write about debt and the difficult issues it raises with regard to fairness and power. In German law, the Civil Code defines a “Debt Relationship” as follows (my translation): “By the power of the Debt Relationship, the Creditor obtains the right to demand a service or performance from the Debtor.” Bürgerliches Gesetzbuch § 241. What a remarkably concise definition. This is good, clear German explication. Rather than sifting through ancient cases to discover what “debt” means in every American State, here we find a simple, pithy definition that applies in every court in the country. From a substantive perspective, we sense immediately that debt implies a power relationship. There can be no “debt” without a “relationship,” and that “relationship” creates power in the “creditor.” More particularly, the “creditor” has a “right” to “demand” a “service or performance.” These are not uncertain words. They say exactly what it means to be a “debtor” and a “creditor.” They starkly reveal that the creditor can “demand” a “performance,” just as a master might demand a slave’s performance, or a paying patron might demand an artist’s performance. Debt compels action; even if the debtor does not wish to perform, the law gives the creditor the “right” to “demand” performance. He who has the power to compel action necessarily has more power than the person compelled. The law favors the creditor and oppresses the debtor. The relationship is precisely the same in American law; it just does not come across as clearly as it does in the German statute. In that sense, I praise the German statute for getting right to the heart of the matter. The German statute defines the relationship, the parties and their respective powers. It does not mince words and we remember immediately what it means. It is rare to find a similarly concise statute in American law.

I mention this brief example to underscore how much you can learn by studying German or any other foreign language. If I had not learned German, I never would have been able to read this statute or think about how it relates to American norms. I do this all the time. I constantly read, compare, think and reflect. It is not enough merely to read one language. We disserve our minds when we consume only English discourse. There is so much knowledge concealed in foreign discourse. To access it, we must make the effort and learn a new linguistic tradition. Once we do, we never think the same way again. That is a great step forward in itself.

Sunday, March 22, 2009



I often write about equality in the United States. From an early age, American children begin to form an idealized understanding about their country. They hear phrases such as “Life, liberty and the pursuit of happiness,” and “all men are created equal.” They watch television and it appears that every American has equal chances to succeed. There are white doctors, black doctors, Hispanic doctors and Pakistani doctors. They all speak English and it seems that everyone has relatively equal advantages.

But perceptions change with age and experience. One merely must visit a major American city to see that all men are not equal. If they were, then some men would not be driving around in limousines while other men starved in rags on the sidewalk. That is an extreme example, but experience reveals subtle inequalities all around us. When we begin to make money and support ourselves, we see that some people get jobs more easily than others. Others make more money. Still others live in larger homes. Some have little difficulty at work or in relationships, while others struggle to make ends meet. Even two equally intelligent people may face totally unequal circumstances in life. In fact, many advantages in life flow from birth; a rich child will invariably face an easier path in life than a poor one. This does not mean that “rich” is categorically “better” than “poor.” It simply means that some people in our society face fewer problems, and hence stand a greater chance to succeed than others.

I am probably a bit more disillusioned with this country than most Americans. In fact, my experience in life has left me with two general conclusions about equality in the United States: (1) Equality is not the goal; to the contrary, Americans live to become unequal to one another; and (2) Because people truly pursue inequality in the United States, they have created a culture of unfairness that functions under a “pernicious myth” of “equality for all.”

Unfairness and inequality go hand in hand. If one wishes to be better than his rival in the “life game,” one must “win.” It is always easier to win if one can tilt the table in one’s favor. Unfairness helps increase one’s chances of winning. Thus, in a society in which people strive to be unequal to each other, it should not be surprising that unfairness abounds. After all, not everyone can be successful. Successful people want to keep their numbers small. They achieve that goal by making life unfair on everyone else. True, some people manage to overcome the unfair obstacles and join their ranks. But they are few and far between. To illustrate, consider African-Americans in the United States. Statistically, they have a much lower chance to achieve success in America than any other ethnic group. Despite institutionalized unfairness in education, employment and criminal justice, however, some African-Americans become highly successful. P. Diddy is richer and more powerful than almost everyone in the United States. Despite all the odds, he overcame the obstacles and “succeeded.” Still, he is a rare example, especially among blacks. In most cases, unfairness keeps inequality in place.

Why do I say that equality is a “pernicious myth?” It is pernicious because it runs contrary to everything Americans learn as children. In school, we all learn about the Founding Fathers and their quest to make America “a home for liberty” against European oppression. In fact, we learn that Europe represented the “Old World,” in which noblemen were literally “better” than commoners, and where Kings ruled the masses by Divine Right. In a word, we learn to associate Old Europe with birth-based inequality and unfair rule. America, we learn, rebelled against that order and established a representative government committed to human equality and dignity. We do not have noblemen and Kings; we learn that “anyone” can be President, commoner or not. But this is a myth. America may not institutionalize inequality through a caste system or noble titles. Yet only a fool could claim that all Americans are equal, or that all Americans stand an equal chance to gain power. In truth, there are American nobles; they may not have titles, but they are superior to virtually everyone else in American society. Generally speaking, they own the property, they preserve their power across generations by inheritance, and they do not readily allow new members into the club. Equality is a myth because it really does not exist in America. And it is a pernicious myth because we delude our children into thinking that our Nation stands for equality, when the opposite is actually true.

This may all sound like bitter scrawl. But there is substance to my claims. I believe that hypocrisy dominates American life. I say this because there is scarcely a Nation on earth that deviates more drastically from its guiding principles. I mentioned the “pernicious myth” to begin this essay because it provides a framework to understand hypocrisies in American life. Our very principles are a “myth.” The Declaration of Independence is a myth. Equality is a myth, and so is freedom. When we see features of American life that deviate from the principles enshrined in our founding documents, we see hypocrisy. Our Nation embraced hypocrisy from day one by dedicating itself to liberty while defending slavery. Today, I take up another one of our mythical commitments: Human value.

In theory, American principles dictate that all men are created equal. We profess social mobility and equal access to wealth. Our Constitution makes similar guarantees through the Fourteenth Amendment. Although the Supreme Court has emphatically pointed out that constitutional “legal equality” does not mean “precisely equal advantages for every citizen,” San Antonio School Independent School District No. 1 v. Rodriguez, 411 U.S. 1 (1973), most Americans feel intuitively that they should be equal to each other because that is what we all learned as children. After all, it is hard to be patriotic if we know that we fight to support an unequal social order in which we stand no chance to advance. On the other hand, it is easy to fight for a cause that you believe stands for you. But it is quite another to die for a country that consciously frustrates social mobility. Nonetheless, most Americans believe that the United States stands for equality. Within that principle is another belief: That all men in America are equally valuable.

Human value is an appealing idea. It is not uniquely American. Many Nations believe that every human life is valuable, and that no man is intrinsically “more valuable” than another. In fact, Germany’s Basic Law sets forth in its first Article: “Human value (or “dignity” or “worth”) is inviolable.” Grundgesetz, Art. 1. In America, human value and equality imply one another. People are equal because they are equally valuable. No man’s life is worth more than another’s. Everyone can feel equally valuable in our society, from the meanest beggar to Donald Trump.

Yet precisely here we see that reality shows us to be hypocrites. In “real life,” no one really thinks that a smelly, urine-covered half-mad beggar is “as valuable” as mega-millionaire Donald Trump. In fact, if both men died as a result of negligence, the law would award Donald Trump’s kin far more money in a wrongful death suit than the beggar’s kin would receive. In this sense, the common law voices American values far better than elementary school myths about equality. In the common law, life can be valued. It examines life earning potential, probable life span, job status, property ownership and other factors that suggest a person’s “lifetime economic worth.” It puts a dollar amount on every life, just as a life insurance company does. The law does not fool around with ethereal rhetoric about “equality.” It comes right to the point with cold, hard numbers: “Donald Trump is worth $600,000,000. The beggar is worth $34.12.” Six hundred million is more than $34.12, so Trump is “better” and “more valuable” than the beggar. This may offend our elementary school sensibilities about “American equality.” But our experience in commercial life tells us that it is glaringly true. There are “more valuable people” in our society. If we can tack a larger dollar amount on their backs, they must be worth “more” than people with smaller dollar amounts on their backs.

Several weeks ago, I watched a television program that brought home the “pernicious myth” of equality to me once again. A narrator told the story of a halfwit who ran away from home in Ohio when he was 20. He was poor and black and had spent some time in jail for extremely petty offenses that involved far more stupidity than malice. He had no chances for success at home, so he decided to just drift across the country. His foster parents knew he was not fully sane. He could not even wash his clothes, let alone manage his finances or go to school. He had awful hygiene and could not speak properly. He wound up begging for money in Los Angeles. Most of the time, he haunted a 7-11 Store on Santa Monica Boulevard. He was never pushy; people gave him change from pity. One night, security cameras showed him standing in his usual place outside the 7-11. Then two men approached him. They appeared to be speaking to him. Then one man pulled out a pistol and shot him in the face. After that, the two men left the beggar to die in a pool of blood. A few minutes later, passers-by saw the body and called the police.

Apparently, the shooter was a gang applicant and had to show his mettle by killing someone. Why not kill the most worthless guy in town? No one would really care, right?

I mention this example because it reveals that all men are not equally valuable in the United States. True, the television program called this murder a “senseless killing” that targeted a “poor, defenseless man.” But how many other killings like this happen without media attention? The killers singled this man out because he was the neighborhood beggar. No one cared about him. He was homeless. He was retarded. He was smelly. He was “worthless.” If there was one man in society whom no one would miss, he was the man. This proves to me that no one really believes in “human value” if they do not care about the person at issue. Who really cares about the stinky, insane beggar on Santa Monica Boulevard? If someone shoots him, does anyone cry? Does anyone feel loss? Would a District Attorney waste time pursuing the killers? But wait, isn’t everyone equal in the United States? Doesn’t everyone have “equal worth?” If we truly believed in those principles, this killing would outrage us as much as it would if Donald Trump were killed. But it doesn’t. If Donald Trump were killed, it would be national news for weeks. A prosecutor would jump on the case instantly. Yet if a beggar dies, no one hears about it. And no one cares. After all, he is not “not worth talking about.”

Why even bother talking about “human value” if we do not really care about our fellow men? Why sink further into hypocrisy? Most Americans do not ask these questions. Nor do they question the immense theoretical difficulties that arise in a commercial society that supposedly takes inspiration from principles like equality, justice and freedom. Rather, I think most Americans cling to the “human value” shibboleth in order to soothe their collective conscience. It feels good to pay lip service to “equal human value,” even if we believe something completely different. After all, it is easy to recite magnificent generalities while pursuing a life path that contradicts those generalities. All the rhetoric about “human value” rings particularly hollow when it appears alongside arguments praising the “sanctity of life.” If all human life (and even potential life) is valuable, then both capital punishment and abortion should raise moral qualms. But most abortion opponents support killing convicted criminals. If all men (and fetuses) are equally valuable, then killing should not be an option in any circumstance. We know from experience, however, that abortion opponents sidestep this theoretical inconsistency by qualifying the rule: “All life is sacred…except as otherwise provided.” In other words, life begins as “valuable” but can “ lose its value” if the “living person” commits certain acts that deserve condemnation.

In my view, this is pure hypocrisy and inconsistency. One either believes in a principle or one does not. It is better to declare oneself a scoundrel than to profess sainthood and act a swindler. Yet America has already sunk deep into the morass. Until we stop deluding our children with the idea that America stands for equality and “human worth,” we will not escape the blatant hypocrisies that hound us every day as we strive to outdo our neighbors in the “commercial life competition.” We cannot say yes and no at the same time, no matter what lawyers we hire to make the argument for us.

Saturday, March 21, 2009



By : Mrs. Nancy P. Pelosi (D-CA), Speaker of the United States House of Representatives; Unabashed Spendthrift

On November 4, 2008, America chose a Democratic President to lead this country. In so doing, the American people told the world that they are ready to spend money. In the months following the election, I have the led the House of Representatives on a bold path to economic recovery through spending, not saving. The American people are sick and tired of penny-pinching Republicans. They want to print cash, go shopping and spend. As Democrats, we are committed to throwing all your money out the window. George W. Bush and his Republican minions reviled spending. We Democrats are different: We are wastrels. We do not mind spending money. In fact, we really enjoy it. Republicans only had negative messages during their time in power. They always said: “We will NOT spend any money this year.” But we Democrats have a positive message: “We WILL spend money this year—lots of it.” Americans chose us because they want positive messages, not negative ones. The era of fear-mongering and anally-retentive treasury management is over. Let us move proudly into a new era of runaway spending, moral license, decadence, deviance and perversion. This is change we can believe in.

Our economy lies in ruins. Thanks to parsimonious Republican skinflints, countless Americans lost their jobs. Millions more find themselves without health insurance or food money. As Democratic wastrels, we intend to end the hard times. We are prepared to spend trillions of dollars on American working men and women. We are ready to blow $100 bills onto the streets with industrial fans and let unemployed workers take as many as they want. We will stimulate job growth by inviting private employers to come down to the Treasury and take out as much money as they need to keep the payroll rolling. And we are not afraid of terrorists. We will keep the money presses humming for as long as it takes to defeat bin Laden and every Wall Street crook. We do not care about responsibility. We just want to make sure everyone gets all the money they need. Our opponents say that Americans need to “know the value of a dollar.” We say: “What good is it to know the value of a dollar when everyone is unemployed and starving?”

When Americans have money, they are happy. They do not complain. That is why the Democratic Party is America’s party. We spend money on everyone, from Donald Trump all the way down to the homeless beggar who sleeps in a garbage pile outside the Trump Tower. Everyone is equal in our United States. And everyone can visit the Treasury to get as much money as they need. We will beat this recession with a simple phrase: “Come on Down!”

Republicans say that we cannot afford to increase spending on health care, welfare and employment insurance. The Republicans miss the point. We are not going to increase spending. We are going to give away money; there is a difference. We are the party of deviance, insolence, license and irresponsibility. We spend money when we feel like it; we do not wring our hands and talk about “ownership society” or “saving.” We believe that the American people want us to spend money. Through responsibility, Republicans ruined our economy. Through frugality, the Republicans allowed our children to starve. Enough is enough. We will reverse the Republican tide. Responsibility and frugality did not work. It is time for solutions that work. It is time for irresponsibility and extravagance. What good is responsibility when it creates monsters like Bernie Madoff? In our view, we would much rather have irresponsible sods running government than responsible Republicans who steal everything in sight. And what good is frugality when frugal Republicans bankrupted America invading Iraq? The time for responsibility and frugality is over. Join us if you are ready to get some free money and start living again.

We are committed to immoral government. By electing a Democratic President and Democratic Congress, America told the world that we are tired of Republican morality. Republicans and their morality led to Abu Ghraib, Guantanamo, John Roberts, Enron, international condemnation and the Katrina debacle. Republicans took a stand against gay marriage and bad language in schools. What good did that do? Our economy is in the gutter and our currency is nearly worthless. America is sick and tired of Republican morality. Americans want change. They want immorality, vice, sodomy, decadence and deviance. We Democrats promise to deliver all that and more. We are not afraid to let men marry men or women marry women. We are not afraid to allow our children to smoke opium or praise homosexual relationships. We also firmly support unethical behavior. After all, Republican ethics gave us Enron and Alberto Gonzales. Ethics gave us scandal and embarrassment. We want change. That is why the Democratic Party promises to set new standards for unethical behavior in the new Century. Through immorality and wastefulness, we promise to save this country from ruin.

We live in desperate times. Unemployment has reached its highest level since the 1930s. People lose their homes every day. For many, the American dream has turned into a nightmare. But we can bring light back to America with wasteful spending. There is a reason why America’s economy failed last year. If it were not for eight years of Republican responsibility, frugality, decency, honor, ethics, morality and compassion, we would not be in the position we occupy today. Together, we can reverse these trends. Together, we can waste our money, act dishonorably, encourage premarital sex and condone recreational drug use. We will stem the tide. We will set a new standard for license, vice and irresponsibility. Responsibility and morality did not get the job done. It is time to give irresponsibility and immorality a chance. True, our country faces many challenges. Yet we believe that by allowing gay marriage, drug use and free access to government money, we can return America to its rightful place on the world stage.

After the Election last year, we all felt that we had turned a new page in American history. For the first time in decades, the Democrats controlled Congress and the White House. But now we must start to work on the dream we savored on Election Night. Join us as we strive to bring irresponsibility to America. Do your part. Spend money recklessly and borrow beyond your means. We do not have time for frugality, morality or decency. Do not act like a Republican. If you feel like going out and getting drunk, by all means go. If you feel like buying a Cadillac, by all means buy it. We will help you. Government is no longer here to condemn you as an immoral deviant; we are on your side now. We are immoral deviants, too. We are ready to give you the money you need. We are ready to waste money on your health care, your job and your unemployment insurance. We are ready to buy you free housing. Republicans made you take out crippling loans to get a college degree. But we are ready to give you a college education—for free. Put simply, if you need it, we will buy it for you, no questions asked. And do not be afraid to be who you are. Republicans made you feel ashamed for having sex and for smoking marijuana. Now, we encourage you to have fun in your life. We do not have time for responsibility anymore. Abstinence and sobriety do not work. As profligate Democratic wastrels, we enjoy life; and so should you. Let us all work together for a better America—a more irresponsible America.

Responsibility and decency created this mess. We Democrats intend to fight the recession with irresponsibility and shameful monetary waste from beginning to end. If you want free government handouts and you are a moral deviant, join us. If you want a free college education and you are a petulant freeloading drug user, join us. If morality offends you and you do not like torture, international law violations or the death penalty, we are the party for you. In the Democratic Party, we do not claim to be moral. We are immoral, we condemn torture, we respect international law and we oppose the death penalty. Still, we recognize that we live in a democracy. If you care about ethics, morality, decency and normalcy, vote Republican. But before you do, take a good hard look at what happened under George W. Bush’s ethical, moral and decent administration. Do you want more of the same? Of course not. Be a faithless profligate immoral deviant Democratic wastrel. Do not be afraid to accept free money. Do not be afraid to go to the doctor, even if you can’t afford it. Do not be afraid to get a college degree without debt. And do not be afraid to engage in debauched omnisexual adventures before, during and after marriage. The Democratic Party is on your side. We waste money. We condone immorality. We are irresponsible. We are deviant. And we will save this country.

Friday, March 20, 2009


By : E. Pearson Firmingham, Esq., Chairman, Committee on Character & Fitness, New York State Board of Bar Examiners

Practicing law requires impeccable moral fitness. Although legal doctrine may require intellectual exertion and reasoning skill, legal practice requires an even temperament, good character, decency, propriety and appropriate living. Many applicants to the Bar believe that their academic achievements in law school demonstrate their fitness to practice law in our State. They are wrong. Our State does not condition law practice on intelligence alone; rather, it also conditions law practice on being a respectable person. This requirement perplexes many young applicants. For that reason, today we present a primer to guide hopeful applicants as they navigate their way through the bar application requirements.

In New York, lawyers must be both smart and decent. Anyone can pass law school tests and write essays. Being smart is the easy part. But not everyone can be decent. As Bar Examiners, we have a duty to the People of the State of New York to ensure that only the brightest and most moral men and women represent them in legal matters. We do not want our citizens to fall victim to intelligent—but morally bankrupt—attorneys. If we had to choose between a smart lawyer and a decent lawyer, we would choose the decent one every time.

Still, we recognize that New York lawyers must possess some basic intellectual skill. To that end, our Bar Examination tests an applicant’s rudimentary legal knowledge. Our examinations determine whether an applicant knows the elements of a contract, whether res judicata applies to a subsequently-filed lawsuit and whether the parol evidence rule bars contemporaneous oral statements during a contract dispute. Additionally, our examinations test an applicant’s ability to spot key words in page-long multiple-choice questions that enable him or her to correctly—and instinctively—mark the answer in 1.8 minutes or less. Our examinations demonstrate an applicant’s legal intelligence. Applicants should study hard to show their intelligence. We are confident that successful applicants possess the intelligence to skillfully represent their clients in any legal matter.

But intelligence and legal knowledge mean nothing without good character. An applicant may answer every question correctly on the Bar Examination, but if he is a bad person, he will not receive admission to the Bar. To avoid unnecessary exertion, we do not allow applicants to demonstrate their intelligence to us until they have demonstrated their character. Because character is more important than intelligence, we must certify an applicant’s character before allowing him or her to sit for the Bar Examination.

One cannot study how to be a good person. One either lives correctly or one does not. Our Bar Examiners determine whether an applicant has decent character. They know whether an applicant is fit to practice law in our State. Yet many applicants do not know how to demonstrate their good character. They know how to study evidence exceptions and civil procedure rules, but they do not know how to prove that they are decent people. In New York, we want our lawyers to be moral, decent, upstanding, forthright, honest and loyal. We believe our young applicants should know how to demonstrate these qualities to us. Below, we enumerate qualities that demonstrate the “character and fitness” necessary to practice law. We also discuss why these qualities matter in legal practice.

Good lawyers are honest. Our Bar Examiners will look to see that an applicant has lived his or her life with proper regard for truth in his written and oral representations. To that extent, we want to see lawyers who have lied on their resumes, lied to their employers and deceived their creditors. We want to see lawyers who have committed criminal fraud and stolen from their friends. In short, we want to see applicants who know how to bend the truth in every situation. A good lawyer respects the truth. That means the ability to convincingly lie, misrepresent, mislead, distort and deceive.

On the other hand, we do not look with favor upon applicants who “never tell lies” or who maintain a principled devotion to the truth in every situation. In our State, lawyers must be flexible in client service. No one wins when everyone tells the truth. In fact, people do not expect lawyers to tell the truth. Employers, too, do not want the truth every time. They want to hear about successes, and great success is rarely possible through truth alone. Additionally, no one even makes it into law school without having lied a few times along life’s way. To that extent, our Examiners carefully screen out applicants who demonstrate an unhealthy devotion to absolute honesty.

Good lawyers are responsible. Our Bar Examiners scrutinize an applicant’s personal and financial history to determine whether the applicant respects his or her obligations. We also look to see whether the applicant lives a decent, conventional lifestyle that inspires trust. Good applicants respect those to whom they owe obligations. We especially prize applicants who have lived at more than 35 addresses over the past 10 years. We also prize applicants with poor credit scores and numerous outstanding debts. Reproductive activity also indicates responsibility. We positively regard Applicants who do not practice birth control. We especially prize unwed fathers who neglect their child support obligations. We favorably review applicants who quit jobs without notice, leaving their employers to scramble for replacements. We also appreciate individuals who rack up substantial credit card debt with several accounts in collection houses. We accord respect to applicants who receive invoices and never pay them. These applicants demonstrate proper regard for responsible living. By accumulating obligations and skillfully living their lives to avoid them, they show their dedication to responsibility as a lifestyle. By certifying our applicants as “responsible people,” we ensure that our future lawyers will do the right thing when representing clients.

Good lawyers do not break the law. Lawyers have a public duty to enforce the law by example. They also must recognize that the law holds them to a higher standard than laymen. To whom much is given, much is expected. In order to support these ideals, applicants to the Bar in this State must demonstrate proper regard for legal authority and the moral rules that sustain our society. In that light, we favorably regard applicants with substantial prison history for violent crimes and sexual predation. Lawyers with firsthand experience in the criminal justice system will better represent clients in similar positions. Additionally, we look to see whether applicants get into brawls, fights or beat their spouses. Violent, abrasive, contentious and strident personalities befit the legal profession. In the law, clients seek favorable results through adversary justice. Applicants with a history of violence, discord and pugnacity will best serve clients. Our committee accords great respect to applicants with lengthy criminal records. Although applicants with convictions for violent crime tend to be more successful than applicants convicted for nonviolent crime, any crime is better than none. Additionally, conviction for nonviolent crimes such as fraud, theft, burglary, money laundering or fortune telling serve as probative evidence that the applicant is fit in other character areas, such as honesty and responsibility. A convicted securities fraudster, for instance, shows that he is both honest and responsible.

On the other hand, applicants without criminal records face a difficult road. Our committee seeks applicants who respect the law. If an applicant does not break the law, he tells us that he fears the law rather than respects it. Lawyers in our State must be willing to take chances in life. Those who do not break the law mark themselves as cowards who do not live properly. Our reviewers do not look favorably upon individuals who have not served time in prison. Without a felony criminal record, applicants must show their good character in other ways, such as substantial outstanding debt, crude disrespect for parents or teachers, gross irresponsibility, failure to pay child support, residence at over 50 addresses in 5 years, brazen contempt for the police or numerous misdemeanor violations, such as public urination, drunk driving, indecent exposure, disturbing the peace or lewdness. In short, applicants must show their respect for the law by demonstrating that they know how to break it.

Good lawyers must be sober, thoughtful and temperate. To ensure that our State admits only good people to the Bar, our committee carefully examines every possible source to determine that applicants regularly drink alcohol and use prohibited drugs. Citations for underage drinking are especially helpful in this regard, since they indicate that the applicant has imbibed regularly since before age 21. Evidence tending to show that applicants shoot heroin, smoke crack or marijuana, snort cocaine, pop prescription painkillers or ingest mind-altering chemicals strongly weighs in an applicant’s favor. Applicants can provide this evidence by securing sworn affidavits from acquaintances testifying that they saw the applicant using drugs at a particular time and place. Hearsay statements or rumors will not suffice to prove that the applicant properly abuses drugs or alcohol, although an applicant’s own sworn statement that he drinks at least two (2) six-packs of beer (not light beer) per weeknight will satisfy our examiners. In short, good attorneys maintain their composure with drugs and alcohol. Our citizens deserve legal representation through attorneys who know how to drink. Our committee ensures that only the drunkest advocates represent their legal interests before the courts of the State of New York.

Tea-totaling applicants face a difficult application challenge. Our committee does not look favorably upon attorneys who do not drink or use drugs. Practicing law is stressful. Drugs and alcohol ease stress, allowing attorneys to better serve their clients. Additionally, drugs and alcohol ease social inhibitions. Our committee certifies that future attorneys are jovial, outgoing, gregarious and charming. Alcohol enables lawyers to project the proper energy on their clients’ behalf. On the other hand, nondrinkers are generally stodgy, ill-humored, cold, distant, tongue-tied and uninteresting. Good lawyers must retain the ability to speak fluently and charmingly. Alcohol and drugs ensure their fluency and charm. When we say “character and fitness,” we mean that our applicants must be “fun, entertaining, fast-talking” characters. In our State, we do not want “Stick-in-the-Mud” characters; we want dynamic, outgoing and rambunctious characters.

Good lawyers must be respectful, polite and courteous. Our committee examines evidence tending to show that our applicants curse, scream, jump up and down, whine, bicker, spit, backbite, slander, gossip and raise their voices unnecessarily. Good lawyers must possess the character necessary to browbeat and verbally intimidate their opponents to win their cases. Evidence tending to show an applicant to be an ornery, irascible, argumentative, discordant and unpleasant person carries special weight in our application process. Our citizens want determined legal representation. We certify that lawyers in our State will be angry, combative people likely to kick and scream, as well as to present cogent points based in logic and law.

By contrast, we look with disfavor upon tranquil applicants who politely treat others with unequivocal respect. In this profession, winning matters. In our adversary system, there is no room for quiet respect. To that extent, we frown upon applicants with a proven record of collegiality, warmth, compassion and grace. These qualities reflect a character unfit to practice law.

We hope that these explanations provide suitable guidance for prospective applicants to our Bar. We recognize that the Character & Fitness portion of the New York State Bar Examination may seem daunting. But we encourage you to stay the course. Please ensure that you carefully assemble all the tangible evidence necessary to show your honesty, integrity, loyalty, decency, normalcy, sobriety and good morals. An organized applicant will always receive certification more readily than applicant who cuts corners when submitting necessary evidence. In that light, we encourage you to secure your relevant criminal records, leases from past addresses, employer complaints, negative credit reports, subzero bank statements, forged checks, affidavits disclosing drug use, Personal Statement of Sufficient Alcohol Consumption (PSAC), domestic disturbance citations, child support default judgments and other written materials substantiating your good character.

We wish you luck as you make your way through the application process.

Thursday, March 19, 2009



Everyone loves hearing about crimes. We all have a dread fascination with our society’s lawbreakers. Sometimes we love to hate them. Other times, we rally around the accused, calling his prosecution “unjust.” In still other situations, we criticize the State for prosecuting someone because he is “not bad, just sick.” We express our condemnation for people who make conscious choices that revolt us. We express our approval for people who make conscious choices we deem correct. But we express sympathy for people who have mental difficulty making any conscious choice at all. Interestingly, the result in each case may be precisely the same. Yet our law and our judgment vary depending on the circumstances surrounding the actor’s choice.

Why is choice so important to the criminal law? To answer that question, we must first understand what the criminal law is. Like no other tradition in Anglo-American law, criminal law doctrine draws upon contemporary morality. Morality is not law. Morality simply states how most people in a society generally feel about particular conduct. In other words, morality codifies popular intuition about behavior and thought. Law, on the other hand, has nothing to do with feelings or intuition. Rather, law declares categorical rules of prohibition and permission. It establishes concrete guidelines and consequences for violations. Broadly stated, human reason creates law, not intuition. Yet in criminal matters, law takes on a moral dimension. The People act through their elected representatives to enshrine their moral understandings in law. The result: Criminal law.

Moral systems develop over centuries in every society. In the English tradition, morality developed hand in hand with Christian church dogma. In fact, English common law courts routinely charged defendants with “crime and sin” in the same indictment. Sins represented moral transgressions against God’s law, while crimes represented moral transgressions against Man’s law. Today, this connection may seem untenable. Yet history explains us far better than we like to think. Sin and crime are linked because both involve moral choices. A sinner chooses to do something that God forbids. Similarly, a criminal chooses to do something that the law forbids. What, then, is forbidden? Through law, men are free to forbid virtually anything. Today, there are constitutional limitations on a legislature’s power to forbid certain conduct. But traditionally—and this remains the case—legislatures forbid conduct that most people consider “abhorrent,” “disgusting,” “dangerous,” “revolting” or “unappetizing.” In other words, they forbid things they consider “immoral.” Morality orients itself according to the average man’s sense of outrage and disgust. Not surprisingly, the criminal law follows a similar paradigm. While law may generally follow reason, criminal law is a special case. It uses reason to establish its legal authority, but in substance, it enforces popular morality.

Criminal law punishes people for choosing to do forbidden things. Choice implies that a person faces an alternative between a good path and a bad path according to moral intuition. For example, when a boy walks into a store, he faces a choice: “I can buy some chewing gum or I can steal it. This is my moral choice. I know it is wrong to steal. If I choose to steal, it would be a ‘bad choice,’ because I learned from my earliest days that stealing is ‘bad.’ But if I choose to buy, I would make a ‘good choice.’ Therefore, I will make a good choice and buy the gum.” Here, the boy acts according to intuitive moral understanding. Those intuitive moral understandings find expression in the law. The two systems are identical. It is both criminal and immoral to steal. It is criminal because the criminal statute book literally outlaws stealing property belonging to another person. It is immoral because it is “disgusting and wrong” to deny other people their intuitive property rights.

Crime and immorality are consistent in the opposite situation, too. If the boy chooses to steal, he knows he made a wrong choice. He acted immorally. In the same stroke, he violated the criminal law. Here, however, we witness the criminal law’s intimate concern with moral choice. In proving the crime, the State must show not only that the boy behaved a certain way; it must also show that he had a “bad mind” when he did. It must prove that the boy took the gum. That is easy. Yet it also must prove that, at the moment he took the gum, he knew he did not own it and that he intended to steal it. In other words, the criminal law must prove that the boy had a “bad mind.” In so doing, the State not only proves the boy a criminal. It also holds him up to moral contempt. After all, when a jury hears proof about the boy’s behavior, it also hears about his thoughts, motivations, desires and ultimate “choice to do wrong.” That shows him to be immoral, as well as criminal. And people love to hate immoral choices, because morality is intuitive. You do not need a law degree to feel outrage about revolting choices. We know them when we see them. In this way, the criminal law not only satisfies the cold requirements of reason. It also satisfies the public lust for condemning bad choices. Put simply, the criminal law does far more than prove technical elements. It provides a platform for the public to express their outrage against people who make “the wrong choices.”

Choice means everything in the criminal law, just as it means everything in morality. Choice provides a justification upon which to feel righteous outrage against “lawbreakers” and “moral deviants.” If a person knows he makes a bad choice, he cannot complain when society condemns him. From a historical perspective, common law courts reserved their harshest condemnation for criminals who made “wicked” choices. The judges routinely debated punishment to match the level of “wickedness” inherent in the criminal’s choice. A less “wicked” choice mandated a lesser punishment than a “grievously wicked” one. Even the word “wicked” reveals the intimate connection between morality and criminal law. It is an archaic word that we associate with monsters, witches and primeval demons who plot evil. It is morally charged. By using the word “wicked,” common law judges simultaneously cast themselves both as moral watchmen and as detached legal technicians. The fact that punishment depends upon the “level of wickedness” inherent in any particular choice provides further support for the assertion that the criminal law draws its entire strength from popular morality.

Morality lends itself to righteous hatred. People with a keen moral sense do not hesitate to express their revulsion at individuals who violate moral standards. When those moral standards find expression in the criminal law, criminal trials provide a popular outlet for that righteous hatred. But again, only choice arouses moral hatred. For example, most people detest killing. Yet not all killing is immoral, and not all killing is criminal. Results, in other words, do not always determine moral or legal consequences. Just because someone dies at another person’s hands does not mean the killer is immoral or a criminal. Choice determines morality and criminality far more effectively than mere results. For example, if a driver kills a pedestrian while driving drunk, we say he is far less immoral than a man who calmly murders his wife to get her life insurance money. A man is somewhat immoral when he stabs a rival in a heated argument after a “sufficient provocation.” And we say a man is not immoral at all when he shoots a robber in his home.

On these examples, we see similar results: People killing other people. Yet morality condemns some killings more than others. The law, too, makes distinctions to match the moral feeling associated with each killing. A drunk driver makes a “bad choice” because he chooses to get into a car while drunk. An ordinarily prudent man knows that driving drunk creates extremely hazardous risks. Therein lies the bad choice; the drunk driver did not choose to deliberately kill the pedestrian. He simply chose to something that caused great risk to others. That choice is immoral, but not as immoral as choosing to kill your wife in order to get her insurance money. From a moral perspective, that choice arouses more popular disgust than choosing to drive drunk. It revolts us more. It shows us that the killer had financial motives in ending another person’s life. That is more shocking, outrageous and despicable—for one moral reason or another—than choosing to drive drunk. Morality assigns the distinctions based upon the intuitive feeling associated with each choice. And the law follows suit by punishing the more “wicked” choice more severely than the “less wicked” choice. The same reasoning applies to the man who wrathfully stabs his rival in an argument. It is immoral to intentionally strike another person dead, but according to popular morality, it is more “forgivable” when the killer is “beside himself” with rage. After all, we all have lost our tempers. We know that we do not think clearly when rage overcomes us. Our choices, then, are not “as bad” as they are when we think clearly. Again, we see choice as the sole basis upon which both law and morality draw distinctions.

Finally, we do not consider it immoral at all when a man shoots a robber in his home. Popular intuition tells us that preserving our own lives is so important that it entitles us to kill someone intent upon killing us. In these circumstances, there is nothing blameworthy or “disgusting” about killing another person when you must kill to live. The law responds in kind: It is no crime at all to kill someone in self-defense. This moral distinction may reveal a society’s values more than any other. The circumstances under which a society legally permits killing candidly demonstrate what a society holds dear. While many people would not argue that killing in self-defense is justifiable, what about killing unarmed trespassers? That is legal in Texas. Because the criminal law draws on moral sources, the Texas law—at the least—expresses the moral norms of the people who made it.

Criminal law, then, provides a forum in which the public can express measured moral outrage against all kinds of “bad choices.” Choice is the touchstone. We have no trouble labeling someone “morally bad” and a “criminal” if he makes a choice that arouses sufficient public disgust. In most cases, a “bad choice” leads to “bad results” and we have no problem taking revenge on criminals because their bad choices cause tangible damage. But what happens when damage flows from people who cannot make rational choices? In other words, what about the mentally ill or—to use a less delicate, 19th Century term—“the insane?” After all, the criminal law draws its strength from morality, and no one is immoral unless they make choices that violate intuitive moral standards. Mentally ill people, however, do not possess the same intuitive understandings as “average citizens.” They do not make “choices” in the same way as an “average man.” Unlike the boy in the store who faces an uncomplicated alternative between “good” and “bad” choices, a mentally ill person does not weigh moral paths. He follows totally different mentally processes, and they are not rational. To that extent, mental illness completely derails both the moral and legal justifications for punishment based on choice. If a person does not have capacity to “choose” as we understand it, the entire punishment rationale collapses. A mentally-ill person may cause as much damage as the cruelest sane murderer, but we do not revile him as “wicked.” Rather, we pity him for his “insanity.” We do not call him “bad;” we call him “sick.” Again, we see that the criminal law depends upon choice for its thematic consistency. It assumes that people can make rational decisions in life based upon intuitive moral understandings. When a person cannot make such decisions, it becomes entirely unjust to punish him because he "makes no choice."

But mentally-ill people pose dangers precisely because they cannot make rational decisions. They act on irrational impulses, which in turn create risks for people around them. The law recognizes this. When a mentally-ill person causes harm, the law steps in to incapacitate him, not punish him. In this sense, the criminal law does not express moral outrage. It simply performs a “utilitarian” function, namely, to protect the public from dangerous instrumentalities. The criminal law performs this function even if the criminal does make rational choices, but in the case of mental illness, incapacitation is the only alternative. There is no moral dimension to these legal functions. Nonetheless, when the law takes action against the mentally-ill, it still judges. It does not act as a moral judge, but rather as a judge of “normalcy” and “fitness to live in society.” In some sense, these judgments are even more pernicious and value-based than their moral counterparts.

Criminal law fascinates us because it has a uniquely public function. Few people care about individual civil disputes between private individuals. But everyone cares about trials against notorious lawbreakers and rascals. We devour crime literature and entertainment. We relish news stories about abominable crimes and their victims. We express popular contempt for nefarious suspects. We even pause to consider whether criminals are really “bad” or whether they are “sick.” We do all these things because criminal law is intertwined with society’s basic moral sense and because criminal cases proceed in the People’s name. Like few other legal fields, criminal law captures the public imagination. We feel that we play a role because criminals attack our values as a society. And when we feel under attack, we relish the opportunity to pronounce our moral judgments against the trespasser. That is just the way we are. The criminal law simply provides us an outlet for us to condemn or approve other people’s choices.

Wednesday, March 18, 2009



By : Mr. Hezekiah H. Mecklenburg, Managing Director and Policy Theorist, The Labor Institute for Real Service

America faces economic crisis because Americans do not work like they used to. In the past, Americans got up, had breakfast, went to work, had lunch, punched out and went home without complaint or longing. They took their wages home on Friday, saved some money and perhaps drank a milkshake on the weekend. Americans never stopped working. They went to work on Saturday and Sunday if they had too. They understood that their job was their life; and it was important to show they cared about their jobs.

Today, even employed Americans cannot stand their jobs. They grudgingly haul themselves out of bed, sleep during their commutes and spend their office time surfing the internet or reading the newspaper. They only do as much work as necessary to avoid censure or discipline; they no longer care about the employer’s mission. Worse, they feel entitled to time off. Every Friday, employees show up to work and ceaselessly talk about “weekend plans.” They lose all focus. They spend all day looking forward to the two days that they can “take for themselves.” They do not think about sales calls, making copies or delivering boxes to the 34th Floor. They think about what bar they are going to later that night or the girl they want to bring home. These are not work-related thoughts. They are inappropriate. In short, American workers just don’t care—and it shows. And that is why our economy fails.

American workers need to get back to basics. To do this, we must completely rethink employment relationships and workplace conditions in this country. This requires that we instill pride in work, not private life. Work pays the bills, not drinking or bowling. Work sustains a household, not playing video games or watching reality television. Although American employees know that work pays their way in life, they all would much rather drink, play video games or watch reality television than work. You would think that they would rather do something that is necessary for life. But no: They would rather have “time for themselves.” The problem, then, is essentially a mental one. Americans need to reorder their minds to love work, not leisure activities. With motivated workers who love their jobs, our economy will rebound.

Here at the Labor Institute for Real Service, we have a plan to make Americans love their jobs. First, we must make workers want to work. At present, American employees would rather “do what they want,” not work. They work because they have to, not because they want to. This naturally causes mental resistance, because obligations make people feel resentful. How did this happen? Simple: Americans enjoy their weekends too much. For decades, American employees have comfortably assumed that they will not have to work on Saturday and Sunday. This “treat at the end” better enables them to endure hardships during the week. It represents a “light at the end of the tunnel” that provides employees an incentive to carry on with the employer’s mission. Yet in recent years, American employees have begun enjoying their weekends too much. They have so much “fun” during the weekend that it dominates their minds at work. Every Monday, they spend their whole morning chatting about what they did the previous weekend, detracting from employer business. On Tuesdays, they start thinking about what they want to do the following weekend, and on Wednesday, they actually start making plans. By Thursday and Friday, they reach “weekend mode,” and they become so excited about the coming days off that work fades into an afterthought. Put simply, American workers have lost their work ethic because they have guaranteed weekends. We can only restore their desire to work if we remove this fatal distraction from their minds.

Days off are economically dangerous. Not only does the economy lose productivity when people take days off, but days off also give American employees time to cultivate their own interests. They enjoy themselves on the weekend; and that personal joy dominates their minds during the following week. This is unacceptable. American workers must be forced to relish their work, not left alone with their joy. To achieve this, we must abolish weekends. No longer will employees feel entitled to take two days off per week. No longer will they have a temptation to dream about Saturday on Tuesday, or Sunday on Wednesday. Rather, they will keep their minds on customer phone calls, pie charts, graphs, spreadsheets, sales meetings and client videos all week long. It is time to stop the entitlements. Great workers work all the time; they do not wish for Friday. And we need great workers to rescue this economy from the lollygagging clockwatchers who poisoned it in the first place.

Weekends are for communists are cowards. No one ever advanced in this country just working Monday through Friday. Did Henry Ford stop working on his Model T because it was 5:01 on Friday afternoon? No. He kept working no matter what the clock said. He did not look forward to Saturday night beer pong at Billy McGillicuddy’s Pub or hooking up with Susan Collins, the cute girl from the accounting department. He slept two hours, then got back up and went back to work on Saturday morning. His work propelled this country to greatness and it made him rich. We need ethic like that to save this economy, not lazy weekenders. We aim to stop the entitlements. From now on, employees will work ten days straight, then take a half-day off to accomplish personal business and see physicians. There will be no more “Friday fever.” Every employee will have a different day off, averting the danger that arises when the entire office anticipates the coming weekend. Now, employees will look forward to their work, not their weekends. This will prevent employees from feeling joy, and when employees are miserable, they stay at their desks and work.

We work in a new economy. It is no longer 1848. Employees no longer shovel coal into blast furnaces or pick textile fragments from yarn balls on dangerous factory floors. Weekends gave workers in early industry a necessary break from hazardous, labor-intensive tasks. But how can workers complain about their jobs today? Can an insurance adjuster complain about maintaining paper files and a computer graph program? Can a receptionist complain about greeting walk-ins with a smile or serving coffee? Can a waiter complain about jotting down orders on a pad? Can a trader complain about running all over the exchange floor soliciting orders on beef futures? And can a lawyer complain about billing two clients at once while talking to a third on the phone? These are not labor-intensive tasks. Rather, they are straightforward administrative activities that place the employee in no danger at all. To that extent, they can keep working without pause. They do not need time off. It makes no sense to continue entitlements from the Industrial Revolution in an Internet Age economy. Only whiners and do-nothings claim that they need “time off” from a desk job. The time for whining and fantasizing is over. It is time to start working again.

We will overcome today’s economic malaise when we all get back to work. By restoring faith in work, we will make America strong again. To restore faith in work, we will set employees’ minds straight. Although weekends may have been important in workers’ lives, they did more harm than good. They allowed employees to have too much fun. That, in turn, corrupted their minds. Good employees do not experience joy; they loyally advance their employers’ interests. Joy is a personal emotion that derives from personal preference and activity. Yet employment requires that a person put his own preferences aside to serve the employer. In that light, joy and employment are not consistent. While we do not deny that superb employees may feel joy when they win success for their employers, we recognize that this does not often happen. Instead, employees feel joy for personal reasons, unrelated to the employer’s mission. In the new economy, we cannot tolerate workers who dream about the weekend. We need employees who gladly show up every day to work. By eliminating weekends, we can better reach that goal, because weekends distract. This is a mental war for employees’ focus. And we are going to win it.

Our detractors say that weekends give employees time to refresh themselves. According to this logic, a refreshed worker is a more productive worker, and because employers like productivity, they should also like weekends. Our detractors also say that rested workers are more productive workers, so weekends actually boost productivity and aid the economy. We strongly disagree. Experience convinces us that workers do not rest during the weekend. They go out, drink, attend sporting events, sprawl out on beaches to bake in the sun, take their children to Chuck E. Cheese® Restaurants, attend doctors’ appointments, shop, surf online, play video games, go swimming, work out, go to the dentist, attempt to fornicate, visit their parents, argue with loved ones, clean out garages, mow lawns, paint fences, plant vegetable gardens, eat fine meals and sleep until 10 AM every morning. Put simply, employees are very busy on the weekends—doing things they enjoy. This is precisely the problem: By restricting their joy to two days during the week, employees naturally will look forward to those two days during the other five. They do not come to work on Monday “rested;” they come to work on Monday exhausted from having fun. Because they spend all their time thinking about the next weekend, their days off actually hamper productivity. Employees associate their two days off with “good feelings” and their five days working with “bad feelings.” Workers cannot work when they are thinking about what a good time they had last Saturday night at the dance hall. In sum, weekends are bad for productivity. And reduced productivity hurts us all.

Let us take action against lazy weekend cowards. We need more work in this economy, not less. Let us emulate those great Americans who worked their whole lives for a better world. Let us put our money where our mouth is. Americans all say they want jobs. But once they get jobs, all they talk about is the weekend. It is time to stop that trend once and for all. When Americans get jobs, let them take pride in the spirit of employment. Let employees say: “Yes! I am happy to be here. I love this job. How may I best serve you, sir?” not: “I fucking hate you and this job; and it’s only Tuesday morning. I would rather be at home eating waffles than in here collating these friggin’ case studies for $9.75 an hour.” Let them feel joy in service, not in their own pursuits. Work means service. Service means loyalty. Loyalty means thinking about your employer, not yourself. Weekends harm service and loyalty. That is why we must stop them. No longer will employees daydream about bars, concerts and women on Friday night. Now, they will have only their desks and their jobs to look forward to.

Together, let us be a Nation of workers, not leisure-seekers. We’ll see you in the office on Sunday.