Law Religion Culture Review

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

Tuesday, August 30, 2005

Justice Scalia and Me.

Supreme Court Justice Antonin Scalia and I got together last night for a discussion on textual interpretation.

He just didn't know it.

Actually, Justice Scalia came to The OC yesterday to deliver a lecture at Chapman University's law school. I was lucky enough to be invited to hear my favorite opinion writer. (Scalia Dissents by Kevin Ring is a tour de force, as noted here previously). However, as an added bonus, I got a seat in the front row.

I remarked to a friend of mine that even if I would be fortunate enough to argue a case before the Supreme Court I still would be farther away than the seat last night.

I'll post later on some Scalia witicisms from the lecture. I brought a legal pad so my readers would be able to enjoy the pearls afterward.


Monday, August 29, 2005

Book Reviews: The Meaning of Jesus.

The Meaning of Jesus represents a “conversation” between two leading New Testament scholars, Marcus J. Borg and N.T. Wright. Because I have reviewed N.T. Wright’s The Challenge of Jesus, this review focuses on Dr. Borg’s offerings. The first part summarizes the general themes of his part of book, and the second provides my critical interaction with the material.

1. Summary of Material

Distilled to its essence, Dr. Borg develops a few themes regarding Jesus and the gospels over his several chapters. First, he establishes immediately that he does not accept the gospels’ historicity (at least in their entirety), and then he emphasizes that position throughout his sections.

Second, as an adjunct of the first proposition, Dr. Borg argues that much of these scriptures and stories about Jesus are metaphorized, including the virgin birth. (p. 179.) “I do not think the virginal conception is historical…. He sees these stories “as literary creations” and “metaphorical narratives.” (Ibid.)

Summarizing these two strands, Dr. Borg writes: “Two statements about the nature of the gospels are crucial for grasping the historical task: (1) They are a developing tradition. (2) They are a mixture of history remembered and history metaphorized.” (p. 4.)

Third, Dr. Borg distinguishes between “the Jesus of history” and “the Christ of faith.” (p. 7.) He expounds on this distinction in chapter four with his description of Jesus before and after Easter. Before Easter, Jesus was a “Jewish mystic”, according to Dr. Borg. After Easter, he was a “Christian Messiah.” (pp. 53-54.) Dr. Borg revisits this theme in chapter 8 when he states: “Easter is utterly central to Christianity. ‘God raised Jesus from the dead’ is the foundational affirmation of the New Testament. … I agree.” (p. 129.) However, Dr. Borg returns also to another of his themes that questions “the historical ground of [that] affirmation[.]” (p. 130.)

Fourth, Dr. Borg argues that one’s worldview “affects how we see Jesus.” (p. 9.)

Fifth, Dr. Borg “see[s] the Christian life as a relationship to God, mediated by Scripture and tradition, and transforming our sense of ourselves and our relationship to the world of the everyday.” (p. 227.) Dr. Borg expands on this dynamic when he says that our understanding of Jesus is not just driven by scripture or history, but also “faith.” (p. 232.) This faith, then, in turn, necessarily “affects how we see Jesus”, as noted above. (p. 9.)

2. Critique of Material

Contrasted with N.T. Wright’s chapters which I found generally more persuasive, I disagreed with Dr. Borg on several points, and I was surprised at some of the positions that Dr. Borg took. For example, consider Dr. Borg’s lofty portrayal of Jesus and his work: “’God raised Jesus from the dead’…. Jesus lives, and Jesus is Lord.” (p. 129.) This surprise was born out of the fact that Dr. Borg ultimately cuts off the branch under which he sits.

As noted above, Dr. Borg’s general theme is that the gospels are not historically accurate (at least not in all respects), and that they are metaphorized. He suggests that they have been doctored by those with agendas. With this general approach in mind, if we focus on a core tenet of Christianity, Easter, we can see that Dr. Borg’s analysis is ultimately unpersuasive and flawed. He evidently realizes that Christianity is essentially moribund without Easter. “Easter is utterly central to Christianity.” (p. 129.) As a result, he freely acknowledges his assent to its reality, and then digs out its underpinnings--the gospels. (p. 130.) So, left with no historical or scriptural support, he is left to arguing that it is solely a matter of faith to accept the Jesus of faith. This inconsistency is not very persuasive.

Without a high view of scripture, there is really nothing to support the view of Easter that Dr. Borg holds. Then coupled with the fact that each brings his or her worldview into the picture, and then he or she freely views and interprets these matters only through these worldviews, there is little confidence inspired by Dr. Borg’s analysis that his view is worthy of acceptance.

Further, I did not find that Dr. Borg posited cogent reasons for his proposition that the gospels are largely metamorphized. This conclusion seemed to be a byproduct of Dr. Borg’s own admission that one brings his or her own worldviews as the lens through which they view reality. This is a telling admission, because I thought it most accurately explained Dr. Borg’s approach to the gospels and his view of Jesus.

Of course, Dr. Borg’s apparent view is that the gospels cannot credibly record any supernatural explanations for events. For example, the virgin birth does not comport with the modern understanding of procreation, so therefore, it must have been a mere “metaphor” or a subsequent creation or gloss administered by exuberant followers. Then, to save the faith somehow, Dr. Borg resorts to creating a “Christ of faith” to explain the matters that he has explained away beforehand. Again, this inconsistent approach leaves one with nothing, except perhaps an experiential faith that operates on a psychological level for the benefits of its followers. But reduced to this level, there are many other means to get there. Even Dr. Borg, perhaps unwittingly, allows for this grossly devalued religion when he contends that the statement from John, “I am the Way, the Truth and the Life, no one comes to God except through me” does not actually mean an exclusive means to the Father, nor his divinity. (p. 156.) The probably could be no better example of Dr. Borg’s biases driving the interpretation to the result he wanted.

Sunday, August 28, 2005

Book Reviews: iCon Steve Jobs: The Greatest Second Act in the History of Business.

Are three times a fluke?

Jeffrey S. Young and William L. Simon don't think so. Writing iCon Steve Jobs: The Greatest Second Act in the History of Business, they explore Steve Jobs' ascendancy in three highly competitive fields: computers (Apple), movies (Pixar) and music (ipod/itunes).

While it's true that these fields overlap, it is beyond legitimate cavil that Jobs has shaped these fields. For that multifaceted achievement, one must be impressed. The authors are. However, they cannot decide if Jobs is a positive figure.

The book alternates between laudatory language that would make some publicists blush, and punishing portrayals.

However, this dichotomous mode carries their message of contradiction. They argue that Jobs is an oxymoron--a selfless humanitarian and a self-involved, ruthless leader.

This two-faced portrait is foreshadowed in the title. Through creative capitalization, "iCon" carries a double meaning (especially when viewed in the context of the pages that follow). Is Jobs a business icon who has achieved the "Greatest Second Act in the History of Business"? Or, is the small "i" to distinguish it from the "con" so that they are a personal pronoun and verb in the context of an "act"?

After reading the text, I can't decide the authors' ultimate conclusion. They appear content to leave both images linger.

Thursday, August 25, 2005

Book Reviews: The Challenge of Jesus.

1. Summary of Material

As an overarching and organizing thesis of Dr. N.T. Wright's The Challenge of Jesus, he states “Christian traditions have often radically misunderstood the picture of Jesus in those Gospels, and only by hard historical work can we move toward a fuller comprehension of what the Gospels themselves were trying to say.” (pp. 10-11.) He then extends this thought, as follows: “I regard the continuing historical quest for Jesus as a necessary part of ongoing Christian discipleship.” (p. 15.)

Examination of these two concepts together exposes at least a couple of subtheses. First, Dr. Wright believes that the historical Jesus can be known through rigorous application of historical methods; and second, that this understanding can improve one’s relationship with Christ and his mission.

Operating under this rubric, Dr. Wright then breaks his analysis down into chapters dedicated to “The Challenge of Studying Jesus,” “The Challenge of the Kingdom, “The Challenge of the Symbols”, “The Crucified Messiah,” Jesus & God,” “The Challenge of Easter,” and “Walking to Emmaus in a Postmodern World.”

In chapter six’s “The Challenge of Easter”, Dr. Wright built a persuasive case that Easter’s “[r]esurrection meant reembodiment” and more. (p. 135). He supported this thesis with several arguments coming from the Gospel accounts, 1 Corinthians 15, logic and reason. I thought this section generated the most persuasive power and demonstrated the most coherence.

2. Critique of Material.

While I generally agree with Dr. Wright’s thesis that historical (and other academic) methods can be marshaled and applied to gain a more accurate portrayal of Jesus than perhaps is otherwise prominent in the church today (see, e.g. p. 10), this book did not meet his stated thesis. The book was not remotely a historical work, although the author constantly referred to himself as a historian. (See, e.g., pp. 192.) It contained very few footnotes or support for his conclusions. Related to this general criticism, I found The Challenge of Jesus to contain three (3) fundamental flaws.

First, the book was remarkably derivative. Dr. Wright admits up front that the book was compiled as a result of lectures given some years ago. (pp. 9-10.) On top of this fact, the book draws from other of Dr. Wright’s works. (See, e.g., p. 121; 122-23; and p. 90.) Dr. Wright discloses much when he says: “I can do no better than repeat what I have written elsewhere.” (p. 121.) As such, I thought the book was largely superficial, and it read like a transcript of a talk or sermon.

Second, given these foregoing realities, this book was not a particularly scholarly work. That observation in itself does not doom it. However, given the subject matter of the book and the stinging criticism that “[m]any Christians have been, frankly, sloppy in their thinking and talking about Jesus, and hence, sadly, in their praying and in their practice of discipleship” (p. 10), I consequently was hoping for a more scholarly treatment in the pages that followed.
Third, the book repeatedly refused to delve into related or troubling issues or complexities. It simply cast them aside with words to the effect of “That’s beyond our scope.” (See, e.g., p. 147 [“there is no space here” for details].) I found these regular “dear reader” notes to be obstructive and noninstructive. Perhaps a brief summary, or short of that, some sourcing so the reader could actually investigate the issues for himself or herself would have been a better choice. Otherwise, it cements the perception that the book is a mere recapitulation of a series of talks.

Notwithstanding these critiques, the book provided a succinct and salient discussion of postmodernism in chapter seven. Dr. Wright’s summary hits the target: “Where modernity thought it could know things objectively about the world, postmodernity has reminded us that there is no such thing as neutral knowledge. Everybody has a point of view, and that point of view distorts; everybody describes things the way that suits them. There is no such thing as objective truth. Likewise, there are no such things as objective values, only preferences.” (p. 151.)

While Dr. Wright is no postmodernist (see, p. 170) he does seem to sympathize at some level with the critique. For example, he characterizes it as a “necessary judgment on the arrogance of modernity.” (p. 154.) I agreed with Dr. Wright that the postmodernism cannot be ignored. To blithely continue to try to sell modernity to postmodernists is futility. As a result, I particularly resonated with Dr. Wright’s practical suggestions about how Christians can bridge the divide, or at least attempt to. (pp. 185-86.) This was perhaps the book’s best innovation.

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Wednesday, August 24, 2005

More Mentoring.

Over the past couple of weeks I have relayed some lessons learned from my trial mentors.

Similarly, Texas trial attorney William Dyer, who writes BeldarBlog, recently shared an amusing anecdote involving one of his mentors, the great Walter E. Workman.

"When I was a pup, new to the practice of law as an associate at Houston's Baker Botts, among the many superb trial lawyers I tried to learn from was Walter E. Workman. [A] ... story that I've heard from multiple sources — all purporting to have been eye-witnesses, or to have gotten it from someone who was, of course! — is about the time Walter was soundly whipped in the mid-1960s while defending a worker's comp case in Angleton, some miles south of Houston down in Brazoria County.

"Apparently, for whatever reasons and despite Walter's best efforts, this particular jury just hated Walter and his client — and they showed it by answering every single question they were asked against Walter's client just as forcefully as the judge's instructions permitted. The judge was reading aloud their entire verdict, and each successive answer from the jury was just like another punch landing squarely on Walter and his client — uppercut to the jaw, jab to the nose, jab to the nose, roundhouse to the temple, bam-bam-bam, they're down for the count!

"When the distinguished trial judge had finished transmitting this methodical thrashing from the jury, he looked up from the verdict form and solemnly asked the lawyers present for both sides the ritual question: "Do I hear any motions?" The judge and everyone else was expecting the plaintiff's lawyer to give the ritual answer appropriate to the big win he'd just been handed — something to the effect of, "I move that the jury's verdict be duly received by the Court and filed among the papers in this cause."

"But before the plaintiff's lawyer could speak, Workman bounded to his feet. "Yes, Judge, I do have a motion!" The judge was startled; the plaintiff's lawyer froze in his seat, stunned. "You have a motion, Mr. Workman?" the judge asked incredulously — perhaps figuring that Workman was already planning his motion for new trial or some other clever if premature set-up for an appeal.

"Yes, Your Honor!" said Walter Workman earnestly, "I respectfully move the Court to grant me and my client a fifteen minute head-start toward the county line before you discharge this dad-gummed jury!"

(HT: BeldarBlog: Report from the trial court trenches.)

Tuesday, August 23, 2005

A Financially Ruinous Cocktail.

On ESPN radio this morning, sports talk host Colin Cowherd was a bit off topic.

While off the sports topic, he was on the truth target.

He pointed out that the big three avenues of financial ruin:

1. Divorce;
2. Addiction; and
3. Lawsuits.

He said that those who manage to avoid them will usually find financial security in their retirement.

This riff reminded me of a somewhat startling statistic I read in 1996's The Millionaire Next Door by Thomas J. Stanley and William Danko.

As part of their study of millionaires, they reported that over 90% millionaires are married-and married to their first spouse.

While it's perhaps unfashionable, here's to married teatotaling nondefendants.

Thursday, August 18, 2005

Cognitive Dissonance.

Harvard Law Professor Alan Dershowitz once said that attorneys must do things professionally that they would find distasteful personally.

I observed an example this week. Waiting for a law and motion calendar to commence, two attorneys in front of me were catching up. They evidently were old friends from law school, and shared some laughs over their shared experiences.

The guy on the right presented himself as especially jovial and avuncular. All of that abruptly ended when his matter was called. Once before the judge, he became belligerent and rude. Unlike in the conversation just minutes before with his law school buddy, this guy repeatedly interrupted the court (which resulted in a somewhat belated censure from the judge). He failed to listen to the court's statements, failed to respond to them, and refused to accept that the ruling had long since been made. The matter ended with the attorney threatening to take the matter to the appellate court with a writ, an insulting manuever.

One of my mentors in the law likened the practice of litigation or trial work to a diplomacy. Over the course of a case you want to develop rapport with the court. You want the court to see you as trustworthy and reasonable. Part of achieving this status requires one to pick his or her spots. Knowing when to argue and when to listen is valuable discernment.

I never have seen a judge change his or her mind simply because the attorney overcame the court's patience with long-winded speeches that would rival Clinton's infamous 1988 polemic at the Democratic Convention. If anything, the opposite effect is engendered.

In the final analysis, though, I don't think that an attorney needs to act contrary to, or outside of, his or her character to be effective. Nevertheless, the jovial guy apparently believed so.

Sunday, August 14, 2005

Get 'Em While They're Hot.

In the aftermath of the crash of NBC's The Law Firm, Yeoman has suggested some brilliant ideas for substitute shows to highlight the glamourous practice of law.

"1. Subrogation! Young beautiful lawyers spend all day suing people for small amounts. They prevail in Court, and don't get anything as the people they are suing are judgment proof. All this work cuts into their billable hours, and they don't make enough to pay the rent, let alone own a decent car.

"2. Chapter 7. A drama about the exciting fast paced world of bankruptcy. Every week would feature an extended courtroom scene in which lawyers for both sides in a Chapter 7 drone on in a monotone about provisions in the code until the Judge, equally monotonal pronounces his decision all in code.

"3. Secured Transactions. Young beautiful lawyers spend all their time at the clerks office filing Uniform Commercial Code statements, or looking them up. In between, they meet, fall in love, and have raging arguments about the proper place of filing."

(HTs: Evan Schaeffer's Legal Underground; and Yeoman: The Vast Wasteland III.)

Thursday, August 11, 2005

Inconsistently Consistent.

Two septuagenarians sat behind me at a local movie theater.

During the preview for that impending filmic masterpiece, Deuce Bigalow: European Gigilo, they vociferously complained about the sad state of movies. They expressed their disgust with comments like, "I can't believe they put that garbage in movies today." And, "It's a wonder anyone goes to the movies anymore."

The movie they were waiting to see? Wedding Crashers.

Not only did these critics pay, they stayed.

Wednesday, August 10, 2005

Deposition Decorum.

Well, that was a first.

Today, I attended a deposition where the required attire was a surgical mask. The witness is recovering from cancer at the ripe old age of 31. His immune system is shot--hence, the masks.

This alone would be cause for pause. However, I knew the deponent. I met him a couple of years ago when surfing. (Although he is not a client, his company and my client are on the same side of a business dispute.)

Then, he was a vibrant, funny and healthy young man.

Today, he is a shell.

Tuesday, August 09, 2005

Law in a Sentence or Two, Part II.

The other law already has been summarized in a sentence or two.

"One of them, a lawyer, asked Him a question, testing Him,Teacher, which is the great commandment in the Law?


"This is the great and foremost commandment.


"On these two commandments depend the whole Law and the Prophets."

(Matthew 22:35-40 ; NASB [capitalization in the original].)

Monday, August 08, 2005

Law in a Sentence or Two.

Columbia University law professor Michael Dorf creatively has attempted to summarize the first year law school curriculum into a few paragraphs. It's called, The Five-Minute Law School: Everything You Learn In Your First Year, More or Less.

Taking this reductionist approach to the practice, it reminds me of one of my trial mentors. He was a brilliant, theatrical and persuasive trial attorney.

He knew no law, however. This did not impede his nearly unbroken string of trial successes. To him, there were only about two (2) overarching questions to answer for the jury.

One, what's fair? The jury will be looking for this result, regardless of what the picayune jury instructions purport to say in nearly impenetrable legalese. Two, who's telling the truth? If he could show that the other side or its witnesses were trying to pull the wool over their eyes or mislead them even in small matters, he would argue the jury couldn't trust them for the large ones. This was all the law he needed to know.

Thursday, August 04, 2005

Fire and Ice.

After Alaska, I went with some clients to the Colorado River where it cleaves Bullhead City, Arizona and Laughlin, Nevada for some wave running.

On the surface, the disparate locales provided a study of climate contrasts. From the Great White North's 60 plus degree weather to the desert's 115, this was the summer of fire and ice.

However, the analogy became even more literal. Right in front of our beach set up, a power boat burst into flames. The gentleman on the boat futilely tried to put out the flames with a small fire extinguisher. A jetskier tossed his even smaller extinguisher up to the boat, but this also failed to control the conflagration.

Then, a smart and skillful personal watercraft rider gathered speed and turned sharply to create a wave of cool water that doused the flames. Kudos to him.

Tuesday, August 02, 2005

Back from Alaska, Part II.

Here's a quick recap of my trip to Alaska.

1. Saw humpback and killer whales.

2. Enjoyed the amazing Hubbard Glacier.

3. Met interesting people. For example, the couple from New York whose were involved in litigation with a municipality regarding a regulation that resulted in a "taking" of their real property. The ten (10) year litigation odyssey ultimately resulted in a ruling in their favor. Silver lining? The property vastly appreciated during the tenure.

4. Observed a questionnaire for an excursion that asked for one's weight--and provided four (4) places for the digits.

5. Read two (2) good books: (a) iCon Steve Jobs: The Greatest Second Act in the History of Business by Jeffrey S. Young and William L. Simon; and Rough Edges by former Congressman James Rogan. Reviews to follow.

Monday, August 01, 2005

Hoisted on His Own Petard.

Last year, I tried a business litigation case and secured a six figure judgment for my client.

This year, we found the judgment debtor's bank account and attached about $20,000.

Recently, the judgment debtor filed a claim of exemption. California law provides a series of exemptions of certain assets, including 75% of "wages" that find their way into a debtor's bank account.

In this case, the defendant claimed that the bank account was exempt. Hence, he wanted the court to order that all but 75% of it be returned.

At the oral argument last week, I noted that defendant declared under penalty of perjury that this account had only $12. The court held the defendant to his earlier representation and exempted 75% of $12, which is $9.

Good thing the judgment debtor paid his attorney hundreds (if not thousands) of dollars in fees to prepare and argue the claim of exemption.

He saved $9.