Law Religion Culture Review

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

Thursday, September 29, 2005

If you can't hear me, please let me know.

While I was waiting in court today, the bailiff asked,

"Does anybody here need a Spanish interpreter?"

In English.

Silence ensued.

Wednesday, September 28, 2005

Book Review: The Masked Rider.

There oughtta be a law. Some people are so talented that they must be stealing from others.

Neil Peart's cup runneth over. Not only is he arguably the greatest rock drummer (Rush), his lyrics often transcend genius. (Check out "Limelight" from Moving Pictures sometime.)

Add to these nearly criminal talents an ability to turn a phrase in prose. Here's a descriptive example: "By mid-morning the heat had become an electric blanket, and even the trees appeared to droop over the roadway, wilting in the humid swelter." (p. 10.)

Mr. Peart's, The Masked Rider, Cycling in West Africa, constituted his first published effort as a prose writer. He chronicled his arduous bicycle trip with four others in Cameroon in 1988. The tour was billed as the "the most difficult bicycle tour on the market." (p. 5.) After two (2) years of marketing to North America, the guide could garner only four (4) customers. (Id.)

Somewhat surprisingly, the book took eight (8) years before it was published in 1996. The book offers his reflections as he interacted with the climate, culture, conditions and companions on the tour. It functions as a memoir, travel guide and autobiography.

As to the latter, we learn that Mr. Peart was raised in a "nominally Protestant" family. He provides religious and philosophical reflections that might surprise. For example, he expressed how he was touched participating in a vespers service in a Catholic church in Africa.

Also, he intersperses passages from Artistotle's Ethics, which he read while on the tour. He quotes from the timeless masterpiece thusly: "Every rational activity aims at some end or good." (p. 49.)

Then, he opines: "I might have stopped right there. That statement alone could give me enough to think about for the whole trip. If not for a whole life....Okay, what is 'good'? ...I knew that Aristotle considered the highest good to be happiness. That helps. So every rational activity should aim at happiness. That makes sense. Let's try the second sentence. But what -- is it always true? Reading Aristotle, for example, certainly one of the most rational of activities, does that really aim at happiness? Enlightenment; stimulation; distraction; hopefully education--are these happiness? Ah, no. But they aim at happiness. Every word counts." (pp. 49-50; emphasis added.)

Mysteriously, this type of philosophical rumination occurs mostly in the first half of the book. He appeared to lose interest in engaging in this type of cogitation as the book unfolded. Instead, he would return to almost unidimensional portrayals of his traveling companions. For example, he traveled with "The Complainer". He spared no space reminding the reader of her constant harangues. Perhaps he did this to make the reader as weary as he was enduring it in real time. He nearly succeeded.

In sum, the book demonstrates a gifted thinker and writer giving a glimpse into his unusual life. I recommend.

"Christian Carnival", No. 89.

The latest "Christian Carnival"--number 89--is up at In the Spirit of Grace. The host creatively has organized the posts, including mine, into "Mind", "Body" and "Spirit".

Monday, September 26, 2005

Blawg Review, XXV.

BlawgReview, edition 25, can be located at the ingeniously named, ambivalent imbroglio. Happy reading!

Obscure California Law, Part III.

"Persons in the courtroom should not dress in a [sic] inappropriate manner such as to be distracting to others of usual sensibilities. Counsel shall so instruct parties they represent, witnesses they call and persons accompanying them.

"Attorneys and court personnel should be dressed in accordance with current customs as to their business or work attire."

(Los Angeles County Superior Court Local Rule 8.2.)

Friday, September 23, 2005

O.J.'s Unique Talent.

In addition to garnering rushing yards, O.J. Simpson has a talent for generating lawsuits.

Add to the list a brand-new published opinion from the Ninth Circuit dealing with arcane legal principles of the McCarron-Ferguson Act, abstention, full faith and credit, and comity.

During Simpson's prosecution in the mid-90s, he borrowed against his Rockingham property (in Brentwood) and a New York townhome, according to the opinion. (See the background section, which is summarized below.)

Simpson defaulted. As a result, a foreclosure sale ensued. One potential bidder, Jeff Bazyler, contacted Hawthorne Savings--apparently the same bank that had the Simpson loan--to obtain funds to bid on the property. Hawthorne's President, Scott Braly, approved a loan for $2.6 million.

However, Braly decided to have Hawthorne bid against Bazyler at the foreclosure sale. Further, Hawthorne outbid Bazyler at the sale, purchasing the property for $2,631,000 almost $1.2 million under its market price. Hawthorne then sold the property for $3.7 million.

Bazyler was not amused. He sued Hawthorne and Braly, alleging deceit, constructive fraud and constructive trust. Hawthorne settled, paying Bazyler $700,000.

Then Hawthorne tendered to its insurer, who covered only $10,181.59 of Hawthorne's claimed out of pocket loss of $1,054,377.94. Thus, the case turned into a insurance coverage dispute between the bank and its insurer, which in turn generated a host of legal issues and a 40 page appellate decision.

But, Simpson started it all.

(HT: California Appellate Report.)

Thursday, September 22, 2005

Did Jesus Claim to Be God?

Having a seminary professor as a Dad has its advantages. It is an advantage because it allows one to think critically about one’s faith perhaps earlier than one might have otherwise. One such example from my Junior High School years comes to mind. My father asked me if I could quote him a scripture where Jesus claimed to be God. After the initial shock of this challenge subsided, I had to admit that I was unaware of one where Jesus explicitly stated, “I am God.”

However, this quest caused me to investigate whether other sayings of his conveyed the same message. With some assistance, I focused on the “I am” sayings of John. This piece updates that early study by examining these statements within expanding concentric circles of context. First, these sayings in Chapters 4, 6, 8 and 13 will be examined on their own; then within their immediate context; then within the larger context of John; and finally within an Old Testament context.

Exploring Jesus’s “I Am” Sayings in John

A. John 4:26

John 4:26 provides: “Jesus said to her, ‘I who speak to you am He.” (NASB; italicization in original.) Viewed in isolation, this statement does not persuasively establish that Jesus regarded himself to be deity. In fact, it necessarily refers to the antecedent of “He”. In other words, Jesus was adopting something that a woman—the “her”—had just said to him. Looking directly above this verse, one finds that the woman, the Samaritan “Woman at the Well” had just declared: “I know that Messiah is coming (He who is called Christ); when that One comes, He will declare all things to us.” (John 4:25; NASB.)

Accordingly, the “He” should be read to mean that Jesus did accept the Messiah title. However, that Jesus had just adopted the woman’s appellation of “Messiah” does not automatically translate into an affirmation of his deity.

B. John 6:20

“But He said to them, ‘It is I; do not be afraid.’” (John 6:20; NASB.) Here, Jesus is seeking to comfort others by saying he is now with them. Examining the broader context of this passage demonstrates that Jesus’ disciples were fearful as they were (a) at sea; (b) in the dark; (c) during a storm; and (d) without Jesus. They were not questioning his deity. “Now when evening came, His disciples went down to the sea, and after getting into a boat, they started to cross the sea to Capernaum. And it had already become dark, and Jesus had yet to come to them. And the sea began to be stirred up because a strong wind was blowing. When therefore they had rowed about three or four miles, they beheld Jesus walking on the sea and drawing near to the boat; and they were frightened. But He said to them, ‘It is I; do not be afraid.’” (John 6:16-20; NASB.)

Viewed in this broader context, it is evident that Jesus was seeking to alleviate the disciples’ fear by telling him that he was with them during their travail inasmuch as they had become frightened in his absence. His announcement of “It is I” is more of an announcement of his presence than a declaration of his deity. It is not likely that his scared disciples, being jostled in the boat, were questioning whether Jesus and God were one, or were looking for an affirmation of deity to settle a theological debate among them.

However, this statement is coupled with his ability to “walk on the sea” (John 6:19), which admittedly defies normal human experience and explicates some control over natural phenomenon. Nevertheless, it does not appear that Jesus is using this statement to communicate anything other than reassurance of his frightened disciples, and in this context should not be read to mean that Jesus was using this occasion to exclaim his deity.

C. John 8:18, 24, 28

John 8 provides several “I am” sayings. This paper examines, however, John 8:58 separately below as it comes thirty verses later than the last of the cluster in the middle of John 8, and is substantively distinct on its face.

First, “I am He who bears witness of Myself, and the Father who sent Me bears witness of Me.” (John 8:18; NASB.)

Like John 4:26, this verse again employs the formulation where Jesus is referring to himself as “He” following the “I am”, so we must understand to what the “He” refers in this immediate context. The “He” here is one bearing witness of or to himself. Viewed in isolation, this statement alone does not necessarily transmute into an affirmation that Jesus regards himself as deity. In other words, one could say that he or speaks on his own authority or testifies according to his own witness, but this does not necessarily mean that the speaker is claiming oneness with God. It could be interpreted as a statement of self-assuredness, for example.

However, it does bespeak a higher authority, such that others are not needed to underscore his authority. In addition, Jesus goes further to state that God Himself is his witness and has sent him. This position is undeniably elevated, but it does not necessarily establish equality with God. For example, Paul, who clearly did not claim deity for himself, repeatedly referred to himself as being sent by God, and also to God being his witness. (See, e.g., Phil. 1:8 and Rom. 1:1, 9.)

Second, “I said therefore to you, that you shall die in your sins; for unless you believe that I am He, you shall die in your sins.” (John 8:24; NASB, italicization in the original.)
Once again, this rendering shows Jesus referring to himself as “He”, so this requires an examination of the immediately broader context to ascertain to what “He” refers. However, the text is not explicit in this regard.

Here, Jesus converses with “The Adulterous Woman”. She has just been accused by the “scribes and Pharisees” of committing adultery, and they seek Jesus’ endorsement of her stoning. (John 8:3-5.) Jesus remarks that he does not condemn her, tells her to go her way and sin no more. (John 8:11.) He then underscores his authority by saying that he is the “light of the world” (8:12) , that he “bears witness of” himself (8:18, see above discussion), that God is his witness (8:18), that God sent him (8:18), that he is from above (8:23), and that she must believe that Jesus is “He” for forgiveness of sins (8:24).

Actually, the use of the “He” has apparently been added in the New American Standard translation by the denotation of italics. The fact that “He” has been added in the NASB translation comports with the fact that there is no readily apparent antecedent in this context. Moreover, according to this version’s notes, a more accurate rendering would be that Jesus told her that unless you believe that “I AM”, you shall die in your sins. (8:24, n. 1 [“Most authorities associate this with Ex. 3:14, I AM WHO I AM”].) This formulation, “I AM” is materially different from that of “unless you believe that I am He”, which may refer to “He” as the Son of God, the Son of Man, or the Messiah—titles which do not necessarily equate with an affirmation of deity.

We will discuss the “I AM” formulation in the discussion of the Old Testament context below. Nevertheless, even setting aside an Old Testament understanding of the phrase “I AM”, these words carry remarkable significance even to English-speaking and non-Jewish readers. “I AM” denotes no past and no future tense. It implies eternal existence. Only God can legitimately claim eternality.

Third, “Jesus therefore said, ‘When you lift up the Son of Man, then you will know that I am He, and I do nothing on My own initiative, but I speak these things as the Father taught Me.” (John 8:28; NASB.)

This verse helpfully provides the antecedent of “He” within itself. The “He” here refers to the “Son of Man.” (John 8:28.) As we have noted previously, that Jesus referred to himself as the Son of Man does not necessarily equate to a claim of his deity. However, this phrase is joined or juxtaposed with Jesus’ reference to God as his Father. Separating out the broader context of Scripture, which can provide a fuller Christology or a systematic theology of the Trinity, this statement of being a son does not alone establish Jesus as deity, because Jesus himself told others—his thoroughly human disciples--to pray to God as their “Father” as well. (See, e.g., Matt. 6:8-9.) He clearly did not intend to imply that they (or we) somehow enjoyed oneness with God as God’s children.

D. John 8:58

“Jesus said to them, ‘Truly, truly, I say to you, before Abraham was born, I am.’” (John 8:58; NASB.)

In my judgment, this verse makes a direct and unmistakable claim of deity. First, as noted above, Jesus is clearly stating that he existed before Abraham. Anyone hearing this with some knowledge of Abraham (who predated him by approximately two thousand years) would recognize that Jesus was claiming to be eternal. In fact, they incredulously asked him, “You are not yet fifty years old, and you have seen Abraham?” (John 8:57.) No sane (and mere) human can make such a claim.

Second, Jesus’s use of the present tense to describe a past occurrence carries a special significance in the context of the Old Testament. In other words, instead of simply saying before Abraham existed, “I was”, Jesus used the powerful “I AM”. In so doing, he skillfully conveyed his meaning that goes even beyond a claim of eternality. While claiming eternality, he also claims equality with God or YAWHEH, who referred to himself as “I AM” in the following scripture: “And God said to Moses, ‘I AM WHO I AM’; and He said, ‘Thus you shall say to the sons of Israel, ‘I AM’ has sent me to you.’” (Ex. 3:14; NASB.)

It should be noted that this verse, as translated into English, does not add the “He” after the “I AM”. As we have explored above, the “He” might have injected some ambiguity as to what “He” was intended to convey, such as Son of Man, or something similar. The absence of any “He” or anything else tracks identically with YAHWEH’s own formulation set forth in Exodus 3:14; God has referred to himself in verse 14 as “I AM”, and moreover tells Moses to tell others that is His name.

Further, the immediate context to this verse amply shows that this meaning—an equation with God--was successfully conveyed. In the following verse, it is written: “Therefore they picked up stones to throw at Him; but Jesus hid Himself, and went out of the temple.” (John 8:59; NASB.) Stones were picked up to hurl at Jesus because the listeners—those apparently in the Temple who would understand what “I AM” meant—deemed this statement blasphemy. If it were untrue, it would have been.

Third, the broader context of John 8:58 also shows that Jesus was crafting a polemic for his deity. In verse 51 for example, Jesus says that whoever “keeps [his] word shall never see death.” (John 8:51; NASB.) Jesus accordingly demonstrated his power over death—a position only God enjoys.

This passage, the use of “I AM” in this context, leaves little room for legitimate cavil that Jesus claimed to be God. Recognizing this fact, the debate then moves to whether this saying can be deemed authentic or has been added by overly zealous followers of Jesus. We will examine that debate later.

E. John 13:19

“For now on I am telling you before it comes to pass, so that when it does occur, you may believe that I am He.” (John 13:19; NASB, italicization in original.)

Unlike John 8:58 which employs only “I AM”, and not the appended “He”, this verse incorporates some of the ambiguities found in the pronoun’s use. Looking immediately above verse 19 shows that Jesus was quoting Psalms 41:9 with respect to David’s betrayal and analogized it with his own. (John 13:18.) The fact that Jesus was one to be betrayed or perhaps was a suffering servant as foreshadowed in other Old Testament texts (see, e.g., Is. 53), this position or status does not necessarily equate to a claim of deity.

F. The Context of John

John generally has been regarded as the Gospel most overt in its claims of Jesus’ deity. One such example comes at the outset: “In the beginning was the Word, and the Word was with God, and the Word was God.” (John 1:1; NASB, emphasis added.)

While this is not a saying of Jesus, it provides a fuller context to his sayings that follow it. In other words, if John demonstrates a low or skeptical view of Jesus’s claims to deity, it would make little sense for him to report sayings that imply his deity. Moreover, it would make little sense for a reader to understand or interpret Jesus’ sayings to the contrary conclusion.

Conversely, because the Gospel of John clearly regards Christ as divine, the interpretation that “I AM” denotes deity fully comports with that broader context.

G. The Old Testament Context

As explored above, Exodus, not only referred to YAHWEH or God as “I AM”, but showed that God instructed the use of that name for Himself. (Ex. 3:14.)

David Mark Ball in I Am In John’s Gospel: Literary Function, Background and Theological Implications has argued that the “I Am” sayings above also correlate with those used by YAHWEH in Isaiah. For example, Ball notes that Isaiah 52:6 provides: “Therefore My People shall know my name; therefore in that day I am the one who is speaking, ‘Here I am.’” (Is. 52:6; NASB.) Also, Ball also relies on Isaiah 43:13 which states: “’Even from eternity I am He; And there is none who can deliver out of My hand; I act and who can reverse it?’” (Isaiah 43:13; NASB.) These (and other) Isaianic references further underscore, or at least allude to, YAHWEH’s use of the “I AM” formulation, and find their parallels in the I am sayings of John 4, 6, 8 and 13, that we have discussed hereinabove, according to Ball.

Tuesday, September 20, 2005

Obscure California Law, Part II.

"Innocent recollection is not uncommon."

California jurors generally received this instruction to guide their deliberations.

Until now.

As part of the California Judicial Council's recent overhaul of jury instructions, this instruction has been rewritten to read: "People sometimes honestly forget things or make mistakes about what they remember."

Others included: "A witness who is willfully false in one material aspect of his or her testimony is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars."

Now: "If you decide that a witness deliberately lied about something important, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about toerhs, you may simply accept the part that you think is true and ignore the rest."

Nicely done.

(HT: California Bar Journal, Sept. 2005.)

Monday, September 19, 2005

Low-Key and Truthful Trials.

In a federal case, I just received from the Court a Scheduling Order ("SC"). The Court apparently issues SCs in all of its cases set for jury trials.

Two intriguing points lept off the page under the heading "General Decorum".

1. "Please keep the trial low-key." What's "low-key"? No definition was provided.

2. "It [the trial] is to be a dignified search for the truth." Truth? That's often the first casualty in a trial.

Can we candidly say that any recent high-profile case has been either "low-key" or a "dignified search for the truth"?

Blawg Review, No. XXIV.

BlawgReview, edition 24, is up at Jaybeas Corpus. JC has creatively organized a broad spectrum of entries, including one from yours truly. Enjoy!

Friday, September 16, 2005

Book Review:The Jesus Quest: The Third Search for the Jew of Nazareth.

1. Summary of Material

Because Ben Witherington III's The Jesus Quest: The Third Search for the Jew of Nazareth largely surveys others’ portrayals of Jesus (see Chapters 2-8), its thesis is not readily apparent or even central to the work. Nevertheless, the book intersperses enough of Professor Witherington’s views for an overall thesis to emerge. Its overall thesis is probably most fairly demonstrated in the following quote:

“[T]he historical Jesus remains elusive. But some roads, even if less traveled, may provide the keys to fruitful further discussion of what Jesus was actually like. I suspect that when scholars finally come to grips with Jesus the prophetic and messianic sage, the embodiment of Wisdom, they will have a clearer understanding not only of Jesus of Nazareth, but also of why his movement developed as it did.” (p. 248.)

In this summary, we can unpack several subthemes. First, Witherington rejects the view of earlier questers (which he usefully surveys in the preface) that the study of the historical Jesus is futile. For example, Witherington writes: “The result of the double salvo by Schweitzer and Kahler was that for much of the first half of the twentieth century the scholarly quest for the historical Jesus was assumed to be dead.” (p. 11.) To the contrary, Witherington believes that an historical investigation of Jesus can lead a fruitful understanding of the actual Jesus.

Second, Witherington argues for a view of Jesus as the embodiment of Wisdom—a perspective he expounds in Chapter 7 (pp. 185-194). For instance, “Jesus’ teaching about the kingdom, or even implicitly about himself is grounded in a story, the story of Wisdom and its progress, acceptance and rejection among and by God’s people.” (p. 195.)

However, to be fair, the book is not advocating for a mere knowledge of Jesus for the sake of academic inquiry. He posits (hopefully) that this investigation will lead to one’s “own pilgrimage toward Jesus—toward both the Jew from Nazareth and the exalted heavenly Christ of Christian faith.” (p. 13.) He continued with this theme in his discussion of Jesus as the embodiment of Wisdom: “We must immerse ourselves in this long-neglected material, and maybe then we will see more clearly, follow more nearly and love more dearly the historical Jesus who came to be revered as the Anointed Anointer of God, the Spirit-bearing, Spirit-sharing Savior, the very fullness of God on earth.” (p. 195; emphasis added.)

2. Critique of Material

Beginning with the beginning, Witherington’s Chapter 1 entitled, “Galilee & The Galilean Jesus in His Social Setting” is probably the finest aspect of the work. In short, this chapter provides a useful survey of the social, economic, political and religious context of Galilee at Jesus’ time. Although the product of quality scholarship, this chapter reads as easily as a novel or other similarly entertaining genre and truly injects material that one would not encounter by just reading the Gospel accounts.

Moreover, this information humanizes Jesus for the reader (without detracting from his deity). As I read through this chapter, I became increasingly optimistic about the pages that would follow. However, the subsequent chapters departed from the direction set forth in the initial chapter, and left me somewhat disappointed.

Chapters 2 through 8 essentially focused on what others have had to say about Jesus. More accurately, they represented what Witherington said they said. As such, they did not flow naturally from the initial chapter. Additionally, they largely did not reflect Witherington’s views of Jesus.

In other words, Witherington expends the vast majority of his work delving into how seemingly everyone else has painted a portrait of Christ (which includes his critique of their approaches).

While Witherington provides a portrayal of his own in Chapter 7, his portrait comes as a mere subset of a larger chapter on Jesus as Sage, and ostensibly places it on par with others’ errant (according to him) his views. I thought his organization detracted from the persuasive power of his polemic.

In addition, Witherington spent considerable time discussing the Jesus Seminar and its major architects or participants, such as Borg, Crossan and (newly deceased) Funk. While I recognize that this emphasis was probably a reflection of the timing of the book (originally published in 1995 in the Seminar’s heyday), one picking up the text now would be under the impression that these are the leading scholars on Jesus, and that they consequently deserve the lion share of one’s attention if one considers himself or herself a serious student of Jesus. As a result, I thought this overemphasis gave them more credibility than they rightly deserved in the study.

Overall, the book was a worthy contribution to the topic, but it was disjointed.

Tuesday, September 13, 2005

Movie Review: The Exorcism of Emily Rose.

Scott, let's do lunch. Have your people call mine.

You see, Scott Derrickson directed and cowrote the number one film in the country, The Exorcism of Emily Rose, starring Laura Linney and Tom Wilkinson.

Scott and I went to a small Christian college together. In fact, he was one of the first people I met in Freshman Orientation.

So this (admittedly tenuous) connection coupled with its advertised courtroom drama motivated me to see the film. Based on a true story, the film explored the trial of a priest charged with negligent homicide of Emily Rose on whom he tried to perform an exorcism.

These dual nexuses might affect my review. As Scott's friend, I probably overlooked its faults. As a trial attorney, I probably focused on its faults.

Starting with the courtroom scenes, I couldn't help but notice the mangling of the evidence code and other trial protocol. In one example, the prosecutor objected to a question to an expert witness. There was a "sidebar" (remember Judge Ito?), and then the witness inexplicably answers. No ruling was made on the objection on the record (no court reporter recorded the sidebar), and no instruction was provided the witness. The expert just began talking when the attorneys walked away from the bench.

The burden of proof and the elements of the charged crime were conspicuously absent from the arguments of counsel. In the defense attorney's closing, the criminal standard--beyond a reasonable doubt--somehow transmuted into, "It's possible" Emily was demon possessed.

The story crystallized the larger religion versus science debate. The movie tried to be even-handed in its presentation by playing lip service to purely nonreligious explanations for the manifestations besetting Ms. Rose. However, the filmmakers' point of view pierced through this veneer of ambiguity. They left little doubt that they believed the manifestations of evil to be real and not merely perceived.

The movie packs a wallop for a PG-13 horror film. However, the somewhat conventional sound track was overwrought and overused to heighten the effect.

Emily Rose receives a B+.

Friday, September 09, 2005

Hubris is Dangerous.

"And so hubris turns to false certainties, everyone expects to be a winner, and each morning is a mind-blowing surprise."
--Stephen Vizinczey

I seem to get more than my share of civil (as opposed to criminal) trials. Last year, I tried and won three. This year, I tried one a couple of weeks ago (and answered ready for another on September 6). This year's trial was a "specific performance" and fraud case pertaining to the sale of a commercial/industrial building, where the sellers purported to "cancel" a written purchase agreement.

This case resulted in trial because the defendants, a limited liability company, a limited partnership and an individual, rejected every attempt to resolve it informally. I guess they thought they had a "slam dunk". I thought then they failed to evaluate the case properly. Now I know they did.

I'll spare the details of the trial, but there was a "Perry Mason" moment when I elicited a damaging admission on cross-examination from the key witness on the other side (which he had previously denied in an earlier deposition). Keeping a poker face, I quickly moved on to an innocuous question.

Because of the type of relief sought, this matter was tried before a judge instead of jury. The judge told us to return for his decision one morning last week.

When we arrived, I suspected the other attorney thought he was going to win. He brought his wife, all of his clients and the individual defendant's father to the proceedings. I guessed he thought he was going to take a victory lap.

My client was out of town, so I was there alone with my legal pad.

The attorney did not jog that victory lap.

Instead, the court ordered that defendants complete the transaction at the contract price (entered into two years ago). The judge further found that the defendants, including the individual, committed fraud. Not surprisingly, the court quoted the exact admission I knew was the defendants' case killer (the "Perry Mason" moment). As a coup de grace, the court further deemed my client the prevailing party for purposes of recovering attorneys' fees on our complaint.

If that weren't enough, the Court used the following language to describe defendants: "they were hoisted on their own petard" (a phrase I did not use in my closing arguments), and "they played fast and loose with the facts", among other gems. All in front of his entourage.

As I said, hubris is dangerous.

Monday, September 05, 2005

Movie Review: Grizzly Man.

I love documentaries.

At least, good ones, like Hoop Dreams, Roger & Me, Stevie and

I pulled in another worthy documentary over the Labor Day weekend: Grizzly Man.

This movie chronicles the story of Timothy Treadwell. Without any weapon, Mr. Treadwell lived among bears in remote Alaska for 13 summers. He recorded his interactions with them on video. He named them, and talked to them like friends. In the off-season, he traveled to schools to show his footage to children without charge.

Mr. Treadwell gained a level of notoriety; he appeared on David Letterman's show once. However, he became a news item when a bear fatally mauled him and a companion in the Alaskan wilderness in 2003.

The film operated on two levels. On the surface, his remarkable footage gifted the movie with the quality of a unique nature documentary. The movie is replete with up close and personal images of bears in their habitat.

On a deeper and more complex level, the movie presented a psychological study of Mr. Treadwell. About half way in, the movie elucidated Mr. Treadwell's life leading up to his unconventional decision to go to Alaska and live like bears.

The movie revealed that he had a substance abuse problem; he described it as alcohol. Some said he struggled with other drugs. One explained that Mr. Treadwell spiraled downward when he lost out to Woody Harrelson for the bartender role on Cheers. Mr. Treadwell reported that he tried everything else to free himself from the grip of addiction, and only gave it up when he gave his life to the animals.

In this interview, he made a telling confession: the animals gave his life meaning and purpose. Several times he remarked that he was not a religious person (but he did pray to whoever would listen for rain for the animals).

Mr. Treadwell was a complex and diverse personality. The movie reflected this reality because it was not totally laudatory in its portrayal. In fact, it distanced itself from some of his beliefs, and included some unflattering footage. Nevertheless, the movie was generally sympathetic to this man so passionate about what he was doing that he would risk death to save those who could kill him.

I'll conclude with an aside concerning Orange County, California. I saw the movie in an Irvine theater. Unexpectedly, one of his close friends mentioned in the film that she met him when they worked at Gulliver's restaurant--around the corner in Irvine. He also worked just up the road at the Queen Mary in Long Beach.

Grizzly Man receives a B+.

Friday, September 02, 2005

Justice Scalia and Me, Part II.

John Eastman, a former Supreme Court clerk and current Chapman law prof, introduced Justice Antonin Scalia for Monday night's Madison Lecture at Chapman.

In the introduction, Prof. Eastman read passages from Justice Scalia's opinions, many of which were in Scalia Dissents. Eastman then remarked ruefully that almost all of them were dissents.

"Dissents Are More Fun"

Justice Scalia acknowledged that he had often written dissents, but noted: "Dissents are more fun."

He said that when one writes the majority opinion, some of the best material is cut out and left on the cutting room floor.

Historical Sketch

In the first part of the speech, Justice Scalia reviewed some history. He said that the federal government's "alphabet agencies", board and commissions demonstrated an obsession with the "expert." This obsession led to a "headless fourth branch".

Justice Scalia observed that it is impossible to take politics out of policy decisions, so this "headless branch" of experts were making political choices, through their policy decisions.

He said that this belief in the "expert" has transmuted into "judge moralists" occupying the bench, who are deciding political questions, such as abortion, suicide and gay marriage, couched in legal language.

Natural Law

Then, Justice Scalia discussed natural law. He said: "I believe in natural law." However, he confessed that his view of natural law differs from others. He said that there is no moral expert to answer these questions.

Justice Scalia asked, "Who in a democratic society has the power to determine what the natural law is?"

He said that divining natural law is often a matter of debate and persuasion. He rejected that there scientifically definable answers to such questions.

Modern Jurisprudence

Justice Scalia condemned modern society as one "addicted to abstract morality". He noted that it is a dangerous practice when reflected in documents of a nation state.

He then upbraided the European Court of Human Rights, lampooning its decision finding a right of privacy to engage in orgies of at least five (5) individuals, who even videotaped their exploits. He said that Court's privacy rule would seemingly protect a group of somewhere between five and the number of people that could fill the coliseum.

Justice Scalia observed that there is nothing in law school or private practice that would qualify him to deal with abortion or assisted suicide.

He said, "My Court has invented the concept of a living constitution".

Justice Scalia criticized Roe v. Wade because while it purported that it was unnecessary to decide when human life begins, he that that question is "central".

Alluding to the current judicial confirmation process in the Senate, "One is tempted to shield his eyes from the upcoming spectacle".

He lamented that "originalists like me cannot get 60 votes to sit on a circuit court" today.

Funny Stuff

In a line that produced one of the biggest laughs, Justice Scalia wondered what a "moderate" interpretation of the constitution would look like. "Is that halfway between what it says and what one would like it to say?"

Justice Scalia reported that Democratic strategist and fundraiser James Carville (ostensibly in error) sent him a fundraising letter during the last election cycle with the envelope emblazoned with the words, "Can you imagine a Chief Justice Scalia?"

Concluding Remarks

Justice Scalia said he was not happy with the politicization of the judicial confirmation process, but he asserted that it was inevitable if judges make moral judgments.

Justice Scalia concluded that he preferred the politicization to a judicial aristocracy.