Law Religion Culture Review

Exploring the intersections of law, religion and culture. Copyright by Richard J. Radcliffe. All rights reserved.

Thursday, August 28, 2008

Book Review: Beautiful Boy by David Sheff.

Beautiful Boy (2008) searches for a beginning, an ending, and in the middle, a cause.

In chronicling his son Nic's decent into methamphetamine (and other) addictions, David Sheff admits in the introduction he "resisted the temptation to foreshadow because it would be disingenuous--and a disservice to anyone going through this--to suggest that one can anticipate how things will unfold." (pp. 13-14.) Indeed, the vignette Sheff uses at the book's outset was just another "head fake" where he thought his son had kicked his self-destructive habits, only to be crushed again.

Sheff similarly concedes that he wanted to end his book with a heart-rending letter Nic wrote to his much younger brother apologizing for stealing his sibling's $8 for drugs. "I had so much wanted to end my book with Nic's letter to Jasper. It served too perfectly as a neat bow on the package, a happy ending. I wanted it to be the happy ending of our family's story about meth....But no. It is so easy to forget that addiction is not curable." (p. 255.) Subsequent relapses and rehabs prevented this emotional letter from concluding the story.

Notably this book is told through the father's perspective. Nic Sheff has also published one through his own. Although I haven't read the son's, I suspect the father's is more painful. David Sheff records throughout these pages his search in vain for the cause of his son's addictions. He blames his own divorce and drug use primarily. Sample: "I know that the divorce and custody arrangements were the most difficult aspects of his childhood. Children of divorce use drugs and alcohol before the age of fourteen more often than the children of intact families. Girls whose parents have divorced have earlier sexual experiences, and kids of both sexes suffer a higher rate of depression." (p. 177.)

Sheff never seems to come to any satisfactory conclusion or explanation for how his son's life took such a tragic turn. He would bump up against a plausible cause and then dispense with by referencing people who had the same background and didn't turn to meth or people with different backgrounds who did--and then return to the self-blaming theme. In the process, Sheff tortured himself as much or more as his son did. Indeed, Sheff's head "literally exploded" (p. 308) during the ordeal. "I cannot forget when I couldn't remember his number, and I am struck anew that [my] brain hemorrhage--even that--could not remove the worry about him." (p. 248.)

As a professional writer before this book, Sheff skillfully captures the raw emotion of a father watching his beloved son destroy himself, and not knowing what to do. If you can read this book without being emotionally affected, whether you are a parent or not, you may have misplaced your heart or are on meth yourself.

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Wednesday, August 20, 2008

Praising the Good (An Occasional Series).

1. Aaron Eckhart. One who takes chances with independent movies and challenging parts, his acting trilogy in Meet Bill (2007), Thank You For Smoking (2005) and In the Company of Men (1997) compares favorably to any other actor's work in the same time-frame. Only two other names come to mind, Russell Crowe and Edward Norton. Eckhart's high bar-setting provides room to forgive for such missteps as No Reservations and even The Dark Knight.

2. The Saddleback Presidential Forum. How is it that a nonjournalist like Rick Warren can ask insightful questions and obtain insight-producing answers better than the so-called professional journalists did in the various debates in the primaries?

3. NPR. I'm continually amazed at how NPR's quality far surpasses just about anything on commercial radio. Its (almost) commercial-free nature allows stories to delve beyond the surface. But that is not its only advantage. The variety of stories presented--even on a daily basis--often staggers. For example, morning host Steve Inskeep's recent trip to and interviews in Pakistan stands out and should garner him whatever is the equivalent to a Pulitzer for radio (a Polk or Peabody?).

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Wednesday, August 13, 2008

Book Review: The Prosecution of George W. Bush for Murder by Vincent Bugliosi.

Somewhere Vincent Bugliosi is frowning.

Famed prosecutor of Charles Manson, Mr. Bugliosi spends considerable pages in The Prosecution of George W. Bush for Murder excoriating President Bush for smiling in photos while the Iraq war rages.

Mr. Bugliosi might have blown a blood vessel if he saw the pictures of Bush smiling with U.S. Olympians in Beijing last week. I'm thinking specifically of the one with the U.S.'s vaunted beach volleyball team, Misty May and Kerri Walsh. If you haven't yet seen it, "google" it.

It's difficult to ascertain whether Mr. Bugliosi actually believes that President Bush can or will be prosecuted in federal or state courts for selling the Iraq invasion under false pretences, leading to the deaths of U.S. citizens from every state, as he advocates in this book. Bugliosi revealingly concedes in his end notes: "It may turn out that no state or federal prosecutor may be willing to prosecute Bush for murder...." (Emphasis in original.)

I don't think it's remotely possible anyone will; after all, Congress won't impeach or even commence impeachment proceedings. Therefore, I submit it's more of a literary device for the former prosecutor, who has lately taken to writing political books, to lay out his grievances against the current occupant of the White House in the structure of a prosecution.

As an action-movie trailer with Stallone or Arnold might say, "This time it's personal."

Here's a sampling: "What George Bush and his accomplices did is so monumentally base, so extraordinarily wrong, dishonorable, and criminal, that I'm not gifted enough as a writer to describe it. In view of the ghastly, incalculable consequences of their act and the greatness of their sin, it would take a Tolstoy, a Shakespeare, a Hemingway to give people an illuminating glimpse into the darkness of their souls."

Mr. Bugliosi's not just angry with Bush. The book is filled with George Carlin-esque rants against "pathetic liberal TV personalities like Charlie Rose, Ted Koppel, and George Stephanopoulos--physiological marvels who are somehow able to sit erect in front of a camera without a spine," among others. He even takes on the American public, which he calls "the Walking Dead," whose "memory last[s] as long as a breath upon a mirror."

The book's strength is not its legal analysis (which goes outside California law where Mr. Bugliosi amassed a sterling prosecutorial record [winning 105 of 106 felony trials, including 21 murder convictions without a loss]), but Mr. Bugliosi's laying out of the facts. He has assembled voluminous research reminding the reader precisely what was said and known about Iraq's "imminent threat," its purported possession of WMD, and the purpose of the invasion. It's enough to make one cynical--perhaps even angry. And Bugliosi's anger burns on nearly every page. Best to follow this one with something sunny from your summer reading list.

UPDATE: Here are links to Bush-May-Walsh pictures:

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Monday, August 11, 2008

The Korean Blood Contract Case: The Appellate Brief.

Here is the verbatim text of the appellate brief (sans names) filed last month in Court of Appeal regarding "the Korean blood contract" case that has generated some media attention.


Blood may be thicker than water, but here it’s far weightier than a peppercorn.

Respondent ["R"] solicited from Appellant ["A"] investments and loans for corporations he solely owned or controlled. After investing and loaning 1.7 million won (about $170,000), [A] learned what [R] had told him to induce him to part with the money was not truthful. Accordingly, [A] began to blame [R] personally for the losses he sustained. To appease [A] and to cause [A] not to sue him, [R] wrote out promissory notes, including ones written in his own blood, saying that he would repay [A] personally.

Respondent [ ] promised Appellant [ ]: “I hereby swear [promise] that I will pay back, to the best of my ability, the estimated amount of 170,000,000 Wons to [A].” (English Translation submitted by Defendant [ ], Trial Exhibit 10, p. 10-003; and Trial Exhibit 105; emphasis supplied.)

In addition, on that same date, Defendant [ ] ramped up the solemnity when he wrote, in his own blood no less, “Sir, please forgive me. Because of my deeds you have suffered financially. I will repay you to the best of my ability.” (English Translation submitted by Defendant [ ], Trial Exhibit 10, p. 10-005; and Trial Exhibit 106; emphasis supplied.)

And upon receipt of these documents, [A] agreed to and actually refrained from suing [R] at that time. (RT 66:8-13.)

The unusual presence of blood does not occlude the underlying words conveying [R’s] crucial admissions about his role in [A’s] losses and his promises to pay for them, and it should not obstruct the conventional legal doctrine—applicable to all contracts—that even a peppercorn is sufficient to constitute consideration. “What is a valuable consideration? A peppercorn.” (Hobbs v. Duff (1863) 23 Cal. 596, 603.) A peppercorn is something very small or insignificant, according to Random House’s unabridged dictionary. In other words, the legal test for consideration can scarcely be any lower.

The consideration in this case far exceeds a mere peppercorn. Forbearance has been recognized as sufficient consideration in California law for many decades and can be satisfied by a delay of even one day. “Even though the forbearance is for one day only, there is sufficient consideration as the law does not weigh the quantum.” (Krobitzsch v. Middleton (1946) 72 Cal.App.2d 804, 809 [165 P.2d 729] [forbearance in serving notice of default, though for no specified time, held sufficient consideration].)

The sole ground on which the trial court rejected [A’s] breach of contract claim was that it “lacked sufficient consideration.” (AA 18.) Notably, this was not even a point Respondent asserted. (AA 11-13.)

In so ruling, however, the trial court crucially failed to consider or apply the uncontroverted evidence of [A's] forbearance-- in agreeing to forbear and his actual forbearance--in not suing [R] earlier for [R's] wrongful inducements in 2003, upon receipt of [R's] promissory notes.
Accordingly, this Court should reverse the trial court’s judgment in favor of Respondent [ ] on Appellant['s] first cause of action for breach of contract/default of promissory note.


1. Whether the trial court erred by failing to consider or apply [A's] forbearance as consideration for [R's] blood- and ink-written promissory notes admitting his earlier liability?

2. Whether the trial court erred in finding a “lack of sufficient consideration” in the face of uncontroverted evidence of Appellant’s forbearance from suing [R] earlier for his conduct?

3. Whether the trial court failed to provide an adequate statement of decision addressing forbearance as consideration?


This is an appeal from a final judgment and appealable under C.C.P. §904.1, subd. (a)(1). Judgment was entered on July 26, 2007 (Appellants’ Appendix [“AA”] 33), and notice of appeal was timely filed on January 18, 2008. (AA 36.)


A. Pleadings

On January 23, 2006, [A] brought a lawsuit against [R] for default of promissory notes/breach of contract, fraud, and money had and received. (AA 45.) The last cause of action was dismissed prior to trial. (AA 48.) [R] answered on or about September 6, 2006. (AA 11 and 48.)

B. [R’s] Inducement of [A] to Invest In and Loan Money to Corporations He Controlled

These two gentlemen first met in the early 1990s. (RT 7:13-16; 68:2-4.) After various discussions and meetings, [R] eventually approached [A] about investing in his South Korean company called, [ ], Inc. (and later renamed [ ] [hereafter collectively referred to as “[Inc.]"]) (RT 8:9-9:8.) The name [Inc.] was derived from [R's] legal name, [ ]. (RT 67:23-26.) [R] owned about 70 percent of [Inc.] (RT 71:10-11.)

[R] told [A] that if [A] invested 100 million won in [Inc.], [A] would receive ten (10) percent ownership of a 500 million won capitalized entity, [Inc.] (RT 9:18-10:22; 70:26-71:9; 72:4-18; 73:2-14.) [A] provided the 100 million won to [Inc.] in February 2003. (RT 70:12-15.) [R] conceded the company was never worth 500 million won. (RT 74:1-3.)

After the initial 100 million won infusion, [R] came back to [A] for more money in or about April, 2003. (RT 77:2-10.) This time, [R] requested that [A]loan his company, 30 million won. (AA 17 and RT 11:1-6.) In making this request, [R] told [A] that there would be money to repay this loan “easy” and “pretty soon,” when, in fact, that was not the case. (RT 77:11-16.) Notably, [R] has specifically acknowledged his role and obligation in obtaining this loan from [A], and promised to give [A] his shares in [Inc.] as repayment. (Trial Exhibit 1, p. 01-004.) [R] has never done so. (RT 66:18-20.)

Finally, in or about June, 2003, [R] sought money for his solely-owned California corporation entitled, [Inc.2] In exchange for this money, [R] promised [A] that he would give him 40 percent of his company [Inc.2] and no less than $4000 per month. (RT 11:7-12:1.) [A] received no stock and none of his money back. (RT 76:17-77:1.)

C. [A's] Forbearance in Exchange for Notes

Returning to the chronology, it should be noted that [A] began to suspect that he had been defrauded by [R] in late 2003. (RT 12:20-13:19; 65:11-21; 78:2-18.) So, [A] began calling and visiting [R] at his Fullerton office asking for his money from [R] personally in near the end of 2003, and [A] remained upset with [R] through October 2004 for not paying him. (RT 12:20-13:19; 65:11-21; 79:4-12.)

[R] testified that [A] blamed [R] personally for his losses of the 170 million won beginning in late 2003 (RT 78:2-18; 79:4-12.), which logically flowed from [R’s] integral involvement in [A]making these investments and loans to [R's] companies. (AA 17:20-22; RT 88:6-14.) In order to appease [A]—i.e. cause him to forbear from suing him, [R] drafted out the promissory notes in October 2004 (outside of [A’s] presence), and also generated some other documents acknowledging the debt to [A]. (See Trial Exhibit 1, pp. 01-004, 01-005.)

On or about October 29, 2004, in [R's] handwriting, he promised [A]:

“I hereby swear [promise] that I will pay back, to the best of my ability, the estimated amount of 170,000,000 Wons to [A].” (English Translation submitted by Defendant [ ], Trial Exhibit 10, p. 10-003; and Trial Exhibit 105; emphasis supplied.)

In addition, on that same date, Defendant [ ] ramped up the solemnity when he wrote, in his own blood no less, “Sir, please forgive me. Because of my deeds you have suffered financially. I will repay you to the best of my ability.” (English Translation submitted by Defendant [ ], Trial Exhibit 10, p. 10-005; and Trial Exhibit 106; emphasis supplied.)

Upon receipt of the notes in October, 2004, [A] did not sue at that time. In fact, [A] agreed not to sue [R] in exchange for the notes.

“Q. And when you [A] got the documents on 10-29-04, did you agree to hold off suing him [R] to give him a chance to pay those promises?
[objection overruled]

“A. Yes.” (RT 66:8-13; emphasis supplied.)

D. Lawsuit

However, despite the October 29, 2004, notes, [R] paid nothing to [A] thereafter. (RT 92:22-24.) Hearing and receiving nothing from [R] even following a demand letter (RT 92:17-24), [A] initiated this lawsuit on January 23, 2006. (AA 1 and 45.)

E. Statement of Decision and Judgment

Following trial, [A] requested a statement of decision, which the trial court agreed to provide. (RT 234:23-235:5.) According to the procedure the court established, [R’s] counsel was to prepare a proposed statement of decision. (RT 239:1-4.) [A] was afforded the opportunity to object to the proposed statement of decision, and the court stated it would rule on the objections. (RT 239:25-26.) [R’s] counsel served a proposed statement of decision. (AA 16-22.) [A] timely objected to it primarily on the grounds that the statement of decision failed to address [A's] forbearance as consideration for the notes. (AA 24.) The trial court ignored these objections and signed the proposed statement of decision without any changes. (AA 26-31.)


A. The Trial Court Erred As a Matter of Law in Ruling that Consideration Was Insufficient Because it Ignored or Refused to Consider the Undisputed Evidence of Forbearance, Which Constitutes Valid Consideration

According to Professor Witkin’s influential treatise on California law, “Consideration may be forbearance to sue on a claim, extension of time, or any other giving up of a legal right, in consideration of some promise.” (1 Witkin, Summary 10th (2005) Contracts, § 211, p. 246, citing Wells Fargo & Co. v. Enright (1900) 127 Cal. 669, 673 [60 P. 439] (“it is well settled that forbearance to sue is a sufficient consideration to support a contract.”), among other authorities.)

Even the slightest forbearance will suffice. “It is settled law in California that ‘Any suspension or forbearance of a legal right constitutes a sufficient consideration. * * * Even though the forbearance is for one day only, there is sufficient consideration as the law does not weigh the quantum.’” (Krobitzsch v. Middleton (1946) 72 Cal.App.2d 804, 809 [165 P.2d 729] [forbearance in serving notice of default, though for no specified time, held sufficient consideration].)

The court in Levine v. Tobin (1962) 210 Cal.App.2d 67 [26 Cal.Rptr. 273] explained that the promise to forbear may be either express or implied, and any act of forbearance is in itself evidence of an agreement to forbear.

Here, the uncontradicted evidence pointed in a singular direction: that [A’s] forbearance constituted consideration for the 2004 notes. [R] conceded that prior to giving the notes to A[A], [A] was seeking to hold [R] personally responsible for [A’s] losses. (RT 78:2-18; 79:4-12.) After all, [R] was the one that induced [A] to invest or loan money to [R’s] companies. (E.g., AA 27.)

The unrebutted evidence further showed that [A] agreed to forbear from suing [R] in exchange for the notes to allow [R] to perform. (RT 66:8-13.) Finally, it is undisputed that [A], in fact, did actually forbear from suing [R] for over a year after receiving the October 29, 2004, notes, finally suing in January, 2006. (AA 1, 45.)

The trial court erred and abused its discretion as a matter of law because it failed to recognize that forbearance constitutes valid consideration and failed to apply this law to the uncontradicted evidence. Its sole basis in rejecting the breach of contract claim was that there was no sufficient consideration. (AA 28.) Accordingly, its ruling that there was no sufficient consideration for the notes fails as a matter of law and must be reversed.

In reviewing these legal errors, the court should employ the independent review standard (de novo) because this legal analysis turns on undisputed facts. (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 535 [99 Cal. Rptr.2d 824]; Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799 [35 Cal.Rptr.2d 418, 423]; and Topanga & Victory Partners, LLP v. Toghia (2002) 103 Cal.App.4th 775, 780-81 [127 Cal.Rptr.2d 104, 106].)

Accordingly, the judgment on the first cause of action for default of promissory note/breach of contract must be reversed.

B. The Trial Court’s Statement of Decision was Insufficient Because It Failed to Address Forbearance as Consideration

In a bench trial, the trial court’s failure to render a statement of decision, where requested, is reversible per se. (Social Service Union, Local 535 v. County of Monterey (1989) 208 Cal.App.3d 676, 681 [256 Cal.Rptr. 325, 328.])

Further, reversible error occurs where a statement of decision “fails to make findings on a material issue which would fairly disclose the trial court’s determination.” (Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745 [31 Cal.Rptr.2d 659, 663].)

Here, the trial court acknowledged that [A] had duly requested a statement of decision, and it ordered one. (RT 234:23-235:5.) The court further indicated it would address [A’s] objections to the proposed statement of decision. (RT 239:25-26.) [A] timely objected to the proposed statement of decision, requesting a statement with regard to the pivotal issue of consideration, namely whether [A's] agreement to forbear and actual forbearance constituted consideration. (AA 24.) The trial court ignored this issue in the statement of decision, and moreover, ignored the written objections calling for a statement regarding this issue. (AA 28-29.) The evidence establishing [A's] forbearance, as discussed above, was uniform and undisputed. Moreover, it undermines the singular ground on which the trial court rejected the First Cause of Action for default of promissory note/breach of contract: consideration.

For this reason, [A] respectfully submits that the statement of decision is defective and inadequate and provides grounds for reversal, per se. In any event, the presence of [A's] objections to the statement of decision precludes the inference that the “trial court decided in favor of the prevailing party as to those facts or on that issue.” (C.C.P. §634; see Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [275 Cal.Rptr. 797, 798-99].)


For the foregoing reasons, Appellant [ ] respectfully requests that this Court reverse the Judgment on the first cause of action for default of promissory note/breach of contract."

Monday, August 04, 2008

Book Review: Big Russ & Me: Father and Son: Lessons of Life by Tim Russert.

Big Russ & Me surprises for what it isn't.

This book has been lauded as a beautiful encomium to Tim Russert's father (of the same name) and to fathers generally. But that gloss doesn't capture what this book really is.

It's Tim Russert, Jr.'s memoir.

In recounting his path which led to the heights of politics and television news, he does occasionally weave in tributes to his father--a hardworking, blue-collar veteran from Buffalo, New York. Junior recounts sage, common-sense advice he received from his taciturn father over the years. They usually come in phrases of about three words. Examples: "What a country!" and "You gotta eat!"

However, as their professional paths diverged, Russert suggests that his father was not always correct. When the younger wanted to pursue his ambitions through change and risk, his father would counsel taking the safer, secure route. Describing a job Tim, Jr. wanted to take, he said: "'Dad, I'm going to try it. It's a great opportunity, and I'll let you know how I'm doing.' 'Okay' was the best he could offer. I was trading security for challenge, which always made Dad uneasy." (p. 256.)

In a somewhat surprising contrast, Russert's admiration for his professional mentor Senator Daniel Patrick Moynihan is uniformly glowing. Discussing Sen. Moynihan, Russert employs reverential language and even refers to him as his "intellectual father." (p. 258.) He professes admiration and love for him. (p. 287.) As a result, an apt alternative title for this book might have been "Rich Dad, Poor Dad," but that was already taken.

Russert's trademarked authenticity comes through as powerfully as his beloved Bills would break through an opponent's line in their heyday. Notably, Russert dedicates a chapter to the team, and in doing so, eloquently shows how fathers and their sons can bond over sports.

Russert intersperses some hilarious vignettes. A sample from his days as a political aide:

"[W]hen a reporter wasn't able to reach a source, I would provide that person's phone number. 'Here it is,' I'd tell them. 'If he asks you where you got this number, tell him it was in the files. So make sure to put it in your files, and then take it out and call the guy.'" (p. 260.)

Perhaps Russert's legal training emerged here in this hair-splitting. But it also emerged in his work on "Meet the Press." His questioning of those appearing on his show also seemed reminiscent of a skilled lawyer's cross examination--but always in a respectful and fair fashion. "[T]he key ingredient in learning the truth [is] to ask the right questions." (p. 266.)

Russert himself ultimately concedes the book is not solely about his father. In the epilogue, he writes his son, Luke: "I wrote this book for your grandpa. As I finish it, I realize how much it is also for you." (p. 332.)

The book carries no pretensions, just like the man. He argues persuasively for competence, but also for care and civility. He set an admirable example for all, especially fathers. He is truly missed.

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Sunday, August 03, 2008

Bumper Snicker.

"Evolutionists do it with increasing complexity," read a bumper sticker I just saw.

A suggested alternative reading, "Evolutionists do it without intelligent design."