Law Religion Culture Review

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

Saturday, January 31, 2009

Lincoln and Paul on Litigation.

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."

- Abraham Lincoln-Notes for a law lecture, 1850

Paul on a similar theme:

"Does any one of you, when he has a case against his neighbor, dare to go to law before the unrighteous and not before the saints?

"Or do you not know that the saints will judge the world? If the world is judged by you, are you not competent to constitute the smallest law courts?

"Do you not know that we will judge angels? How much more matters of this life?

"So if you have law courts dealing with matters of this life, do you appoint them as judges who are of no account in the church?

"I say this to your shame. Is it so, that there is not among you one wise man who will be able to decide between his brethren,

"but brother goes to law with brother, and that before unbelievers?

"Actually, then, it is already a defeat for you, that you have lawsuits with one another. Why not rather be wronged? Why not rather be defrauded?" (1 Cor. 6:1-7; NASB.)

Thursday, January 29, 2009

Collision of Law, Religion and Film.

This week a public law school professor contacted me for a recommendation about a film depicting a collision between law and religion.

He explained that he was designing a course on legal themes in film, which would focus on the accommodation of religious beliefs. He wrote: "the ideal would be something where a person has religious beliefs that conflict with the general legal requirements that apply to everyone else, and so there's a legal dispute about whether there should be special accommodation made for the person's beliefs." He indicated he experienced difficulty, if not futility, in finding a good example, and solicited my input (after his research landed him at my blog).

After some thought, I suggested The Exorcism of Emily Rose, which I reviewed here on September 13, 2005. Directed by my college buddy Scott Derrickson (who also directed the very recent The Day The Earth Stood Still), Emily Rose came out in 2005, and starred Laura Linney and Tom Wilkinson. It dealt with a collision of criminal law and religious practice. It concerned a criminal prosecution of a priest who conducted a religious ritual that lead to a death.

He then indicated Emily Rose was precisely what he was looking for. If anyone has any other suggestions, please put in the comments below, and I will forward appropriate ones to him.


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Monday, January 26, 2009

Book Review: Fun While It Lasted: My Rise and Fall in the Land of Fame and Fortune by Bruce McNall.

Few have experienced the meteoric rise and spectacular crash that Bruce McNall has.

Like Steve Jobs, McNall has succeeded in three hypercompetitive fields: ancient coin-collecting, professional sports (LA Kings, horse-racing and Canadian football) and films (e.g., WarGames). (For Jobs, it was computers, music and movies). Unlike Jobs, McNall was a “guest” of the federal government following felony convictions.

Fun While it Lasted explores how both happened—the rise and fall. (p. vii.) The answer to one, however, helps answer the other. For the rise, McNall demonstrated an extraordinary skill to make the most of personal connections. The Hunts, Sy Weintraub, Wayne Gretzky, John Candy, David Geffen, Michael Eisner, and Dr. Jerry Buss, among many others, helped catapult McNall to the top of these fields. So pervasive the name-dropping, an alternative title that might have worked would be a play on the Garth Brooks song, “Friends in High Places”. Indeed, the index for Fun While It Lasted reads like a Who’s Who list.

Similarly, for the fall, “The hunger that was my need to please, achieve, and impress began when I was a boy with a silent, often rejecting father who could not recognize me as a good and worthwhile child. That original, deep-seated need to get his approval came to define my life. Because I failed to recognize what it truly was—a need to be loved—that desire was never satisfied. Instead, it drove me to achieve at impossible levels. And it is when we try to achieve the impossible that we start cutting corners, breaking rules, breaking laws.” (p. 287.)

Because McNall traveled in elite circles, his book provides unusual or surprising behind-the-scenes insights. For example, regarding professional sports, he explains what happened when he bought an interest in the Kings hockey team from Dr. Jerry Buss (also the Lakers’ owner). “With the last signature, I held out the check for the $3 million. Jerry took it, but held it out for just a split second before one of the bankers rudely snatched it out of his hand. Jerry looked at them—his face the picture of disgust—rose, and then quickly left. Not knowing Jerry’s true financial condition, I was taken aback by what happened. Obviously Jerry was so shaky financially that the bank insisted on receiving he check immediately. It might have even been the difference between solvency and bankruptcy. But given the condition of my own accounts, and the fact that my seemingly solid empire was held together by little more than the force of my personality, I could hardly pass judgment on him. We were, in many ways, the same: men whose public images of wealth and power exceed private reality.” (p. 124.)

Regarding the film industry, McNall explains that the easier path to success in film is not in front of the camera but behind it. He reveals the “open secret” in Hollywood that you can garner a producing credit simply by fronting enough cash. He points out how many are seduced by the allure of “The Business”, but for the most part, it’s a loser’s game (monetarily speaking).

On the flipside, McNall exposes what federal prison is like. At first, it appears that his stay in a camp outside Lompoc is going to be relatively easy. It takes a turn for the worse however, including a stint in solitary confinement. Moreover, McNall gets transferred, notwithstanding his “white-collar” crimes, to a higher security prison in Michigan. He shaves off time by enrolling in a substance abuse program there (even while conceding that he didn’t really turn to drinks or drugs when his world caved in). One gets the impression he manipulated things in prison too. Nevertheless, McNall reports the program allowed him beneficial self-examination, from which this book sprouted.

McNall is complex; the book follows him through the triumphs and travails of his multi-faceted, complicated life. Few have traveled such a path—one that is so vertical and horizontal. As a result, it makes for a remarkably unique memoir.

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Friday, January 23, 2009


Although I’ve never done any alpine climbing, I have a healthy respect for, and knowledge about, it. I’ve read numerous books on climbing, including Jon Krakauer’s Eiger Dreams and Into Thin Air. I’ve also enjoyed many movies involving the topic, including Eiger Sanction and K2. So, I surmise it was inevitable that this interest would seep into my brief writing. Here’s the introduction from an appellate brief I filed late last year drawing on the theme (see, in particular, bolding):

"'After climbing a great hill, one only finds that there are
many more hills to climb

--Nelson Mandela

The appeal of Appellant [ ] presents a similarly arduous task. It must surmount multiple peaks in order to ultimately prevail.

In the first consolidated appeal [omitted case numbers], this Court reversed solely to have the trial court issue a statement of decision and judgment thereon. (2008 Appellant’s Appendix [“AA”], p. 3.) [footnote omitted.] This Court reversed even though Appellant’s request, “Can we ask for a Statement of Decision?” (RT 317:20) was “ambiguous”, “defective” and failed to “specify those controverted issues as to which the party is requesting a statement of decision.” (2008 AA, pp. 5-6.)

As to the underlying Judgment (apart from the much later post-judgment ex parte orders), this Court merely indicated that “the evidence [ ] be sifted and weighed in a statement of decision.” (2008 AA, p. 10.)

Thereafter, the trial court issued an evidentially detailed 28-page statement of decision addressing the principal controverted issues of the underlying trial: (a) whether the burden shifted to Appellant to prove that the Amendments and Restatements, dated March 8, 2002, to the [ ] Living Trust, dated August 3, 1999, were not the product of undue influence; (b) whether Appellant met this burden; and (c) whether the trust amendments were obtained by [Appellant’s] undue influence. (2008 AA, pp. 43-45, 49-70.) The trial court amply supported its statement of decision with myriad citations to evidence including trial exhibits and witness testimony, and made key determinations concerning witness credibility, demonstrating a careful sifting and weighing of the evidence. Among other things, the trial court crucially found [Appellant] not credible in light of [his] “continually” “conflicting testimony”. (2008 AA, p. 62; see also p. 61.) Appellant explicitly asks this Court to override and substitute its own credibility determinations for those of the trial court regarding at least two pivotal witnesses, [Appellant] and the drafting attorney, [K]. (OB, pp. 44-45, 49.)

Despite possessing the statement of decision this Court ordered, Appellant is still dissatisfied. Appellant demands another reversal claiming the lengthy statement of decision did “none” of the things it was supposed to do. (OB, p. 21.)

Additionally, Appellant asserts that the Judgment was not supported by “substantial evidence.” Because Appellant has mounted an insufficiency of the evidence challenge, he bears an especially “daunting burden” (Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-29 [249 Cal.Rptr. 798].) This burden is made even more daunting because Appellant must show that the presumption of undue influence never shifted to Appellant (contrary to the trial court’s determination), that Appellant somehow met this burden by showing the trust amendments were not obtained by [Appelant’s] undue influence, and even if the burden was not shifted, Appellant must overcome the trial court’s findings of “clear and convincing” evidence that [Appellant] exerted undue influence in obtaining the trust amendments at issue.

In attempting to summit these Himalayan heights, Appellant misapplies the applicable law (even that explicated by this Court in its ruling [2008 AA, p. 9]), ignores reams of evidence (despite his burden to present it in his Opening Brief), and disregards factual findings on which the trial court relied in finding for Respondent [ ].

Appellant has failed to meet his towering burden. This Court should affirm."


Monday, January 19, 2009

Book Review: Outliers by Malcolm Gladwell (2008).

As hopeful as Malcolm Gladwell's The Tipping Point was (small adjustments can yield cataclysmic changes), Outliers represents its mirror image. Holding up The Tipping Point to a proverbial mirror would produce not an exact replica of Gladwell's prior work, but its reverse.

Outliers explores the ingredients of success. It concludes that success essentially comes through a confluence of factors that are mostly beyond one's control.

First, Outliers essentially posits that you cannot excel unless you happen to be in the right place at the right time. Gladwell illustrates this principle by noting how hockey players rise to the top due to the time of year they were born. In the formative years when the best are culled out, those born at the beginning of the calendar year would be mature than their counterparts born at the end of the year, and hence would be selected for further development. Gladwell also discusses how lawyers (such as at Wachtell, Rosen and Skadden, Arps in New York City) riding the mergers and acquisitions boom were in the right place and the right time because other firms--the "white shoe" firms eschewed this practice area until it was too late, and lawyers comprising these firms were rejected by the "white shoe" firms and left to form these firms specializing in this lucrative practice area. Too, he shows that the big names who cashed in during the personal computer revolution (such as Joy, Jobs, Gates, Ballmer, Allen) were all born within a year or so of each other in the 1950s. This followed a similar pattern where the captains of industry during the industrial revolution in the United States, such as Carnegie, all were born within a narrow window of years.

Second, you cannot excel unless you enjoy immense talent. While Gladwell allows that genius is not required (and not a guarantee of success), those featured in the book invariably have a surfeit of talent, such as the computer industry's Bill Joy and Bill Gates and the lawyers comprising the law firms featured in the book. Now even if one has these first two factors in his or her favor, this will not invariably lead to success. The final factor is the single thing over which one has control, but it can't be obtained easily.

Third, and perhaps the centerpiece of the book, Gladwell argues that one cannot excel in just about any endeavor unless he or she put in about 10 years of hard work (and the right kind). He calls it the 10,000 hour rule, but he equates it to ten years of toiling. For example, Bill Gates enjoyed the "luck" (Gates' and Gladwell's word) of having access to a high-end computer in 1968 and thereafter to practice programming to place him in the perfect position to exploit this expertise during the personal computer revolution. When the time came, unlike his contemporaries, he already had been working in this field for about ten years. This rung true to me in the field of law. Some collegues and I have bandied about the idea (years before Outliers' publication) that it takes lawyers about 10 years to develop the skills to be excellent.

As usual for a Gladwell work, Outliers is full of interesting anecdotes. It's a quick read, but unfortunately loses momentum when it veers from these three main points. For example, its unduly lengthy discussion of the etiology of a couple of airplane crashes went far beyond what was necessary to make its simple point that certain cultural factors contribute to success or failure.

If you've enjoyed Gladwell's Blink and The Tipping Point (both reviewed here), you will enjoy this one as well--even if it turns The Tipping Point on its head.

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Sunday, January 18, 2009


In church today, a pastor prayed regarding: (1) human trafficking, (2) workplace bullying, and (3) junkfood eating.

That's quite the range.

Thursday, January 15, 2009

Book Review: Christless Christianity: The Alternative Gospel of the American Church by Michael Horton (2008).

There's good news and bad news.

The Gospel has been known as "Good News." It's hard to quibble that God's free gift of reconciliation to Him and eternal life with Him through His effort (not ours) (see Romans 5:11) should engender celebration.

A former classmate of mine, Dr. Michael Horton (Ph.D., Oxford) argues that the works-oriented message of American churches amounts to a counterfeit gospel. Not just an imposter of the Good News, it's bad news. Very bad news. Dr. Horton writes:

"So once again we see that [Joel] Osteen has not abandoned the legalism of previous generations. If anything he intensifies it. But his followers do not recognize the tightening noose or the mounting burden because he makes it sound so easy. It is not easy, however, to be told that our health, wealth, and happiness--as well as our victory over sin and death--depend on the extent of our determination and effort."

By contrast, a good measure of the book explicates how incredibly beneficent the Gospel message is. "[T]he gospel is a particular kind of Word...Good News." An "indescribable gift!" (2 Cor. 9:15.) Likewise, "In Romans 10, Paul is telling us not only that Christ's work in the past is sufficient for our redemption, but Christ himself" promises to continue bringing His gift through his ambassadors. Properly understood and applied, this message amounts to the "easy yoke" Jesus promised in Matthew 11:28-30, Dr. Horton argues.

Dr. Horton points to Paul's example. Unlike many American churches, Paul never assumed that his audience knew the Gospel message--he repeated it often--probably because it's so counterintuitive, and the alternative so seductive. "Yet if moralism--self-help salvation--is our default setting, we need to be regularly preached and taught out of it."

In roughly equal measure, Dr. Horton critiques how the Gospel has been contorted into self-help messages and exhortations to do more. "Often in popular preaching today it seems that the goal is to get through the interpretation of the passage in order to arrive at the contemporary application, which typically evidences the preacher's own hobbyhorses and recent diet of reading or movies. Usually application equals law--to-do lists--rather than using the passages to actually absolve sinners of their guilt and rescript them in their new roles of those who have been transferred from the covenantal headship of Adam to Christ." This works-orientation leads to bad results, making it even worse news. "When my conscience leads me to despair, the exhortation to try harder will only deepen either my self-righteousness or my spiritual depression. In other words, it will draw me away from my location in Christ and gradually bring me back to that place where I am turn in on myself." Dr. Horton continues in this vein: "Calling us to accomplish great things for God is part of the hype that constantly burns out millions of professing Christians."

Dr. Horton asserts this drift may be intentional or unintentional. "No matter what we hold on paper as sound evangelical doctrine, a steady diet of moralistic preaching, youth ministry, Sunday school, devotional literature, and outreach will always produce churches filled with practicing Pelagians [works-oriented]." He further contends that the left and right are equally responsible.

While generally superb, Christless Christianity has some shortcomings. First, it's somewhat repetitive. For example, while accurate, its repeated reliance on a single verse, Isaiah 64:6, that our best efforts are "filthy rags" before God--no fewer than seven times--was unnecessary. In addition to overreliance on certain verses, he repeats his themes often.

Second, Dr. Horton generally goes after easy targets. His excoriation of the nonseminary-trained Osteen is nearly total, but ultimately ineffective to change the theology and practice pervading American churches today. While Dr. Horton rejects the "deeds, not creeds" orientation of the so-called Second Reformation and Church Growth Movement churches, he does not go after their purveyors as zealously as Osteen (and to lesser extents, Brian McLaren and George Barna). If anything, Dr. Horton inconsistently employs "kid gloves" with those most responsible for the "Alternative Gospel" he so ardently rejects.

An important work, it's recommended to those interested in learning what's good about the Good News, and the bad news about what's passed off as Good News.

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Sunday, January 11, 2009

Public Pardon.

In church today, the pastor announced a legal transaction.

It wasn't a purchase or sale of church property.

It was a pardon.

"In the name of Christ and by the authority of [H]is Word I declare to you that your sins are forgiven and you are not under the condemnation of God."

Wednesday, January 07, 2009

Movie Review: Gran Torino (Spoiler Alert).

"Plus ça change, plus c'est la même chose." (English translation: "The more things change, the more they stay the same.")

--Alphonse Karr, Les Guêpes

Gran Torino's simultaneously derivitive and fresh.

It's derivitive because it somewhat recycles Clint Eastwood's Inspector Harry Callahan ("Dirty Harry"), launched in 1971 almost concurrently with the '72 Gran Torino featured here. Gran Torino's sneering, "Get off my lawn!" (and similar lines) delivered with a firearm in Eastwood's hand could have easily been uttered in his other movies. While derivitive of earlier roles, Eastwood's Walt Kowalski in Gran Torino manages to make Inspector Callahan seem genteel by contrast. Growling, racist, mean and self-absorbed, Eastwood appears beyond redemption. However, redemption lies at the core of this movie.

Gran Torino's derivitive nature also arises through its importation of Christology so overt that it even includes a crucifix pose. Similarly, religious themes abound in Gran Torino, with frequent appearances by an earnest and persistent priest played by Christopher Carley.

It's fresh because its relative newcomer screenwriter, Nick Schenk, brought a new twist to a familiar story arc about redemption, forgiveness and sacrifice. Among other things, Gran Torino explores Hmong culture--not a common topic of American movies. Further, its creatively offensive, authentic dialogue seemed fresh because its raw and racist language's largely absent from today's politically correct cinema. Most theatergoers in my screening reacted to it with nervous laughter. (Admittedly, this is somewhat of a throwback too because Dirty Harry tossed off some racial epithets, but nothing approaching the pervasive level here. The language deserves a special warning; so you've been warned).

Likewise, the movie somewhat unusually elevates the importance of male influence in the lives of young men, even through Walt Kowalski's damaged, imperfect vehicle, who evidently failed as a father to his own, alienated sons. Kowlaski intervenes to help a young man, after concluding he "doesn't stand a chance" without a father-figure. But the saving isn't one-way. Kowalski undergoes his own transformation.

The movie's likely to divide viewers into two camps. You will either love or hate it. Count me in the group loving it.

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