Sometimes it is nice to revisit a novel you have not read in a long time:
“The procedures of the law are much discussed, and people know about lawyers and courts and prisons and punishment and all that sort of thing, but that is just the apparatus through which the law works. And it works in the cause of justice. Now, justice is the constant and perpetual wish to render to everyone his due. Every law student has to learn that.”
Robertson Davies, The Manticore (1972) (p. 62 in the Penguin ed.).
Some people find the re-reading of novels to be odd, but it seems to me not unlike listening to a favorite piece of music, or viewing a well-loved painting, or returning to a known hike, or visiting an old friend. You do not return for an identical experience, for you yourself are different.
Another nice passage, this one about about advocacy from David Staunton’s legal mentor:
“I think you’ll make an advocate,” said he. “You have the two necessities, ability and imagination. A good advocate is his client’s alter ego; his task is to say what his client would say for himself if he had the knowledge and the power. Ability goes hand in hand with the knowledge: the power is dependent on imagination. But when I say imagination I mean capacity to see all sides of a subject and weigh all possibilities; I don’t mean fantasy and poetry and moonshine; imagination is a good horse to carry you over the ground, not a flying carpet to set you free from probability.”
I understand that this is long, but there may not be anything better you can do with the next five minutes of your life. You can read the commentaries later. Remember that this man is writing out of the context of just being fired from a job he held for twenty years.
Open Letter from Zachary Fardon, March 13, 2017
Today I submitted my resignation, effective immediately, as United States Attorney in Chicago. As I walk out the door, there are a few things I’d like to say.
I am not a political person. I belong to no political party; never have. I am not a Democrat. I am not a Republican. I am not a liberal. I am not a conservative. I never found a need or interest in associating myself politically. I have no interest in political office.
For the past three and a half years, I’ve been lucky to be in a position of power as the US Attorney in Chicago. That means I’ve gotten to lead what I think is the best prosecutors’ office and maybe the best public office this country has to offer.
During those three and a half years, by my own choice, I focused my greatest attention on violent crime. I came into office in 2013 not long after Hadiya Pendleton was killed by an errant bullet in a public park. Like most folks, I was horrified and confused by Hadiya’s death and the constant drumbeat of seemingly random deaths of so many others, including kids, on the south and west sides of Chicago.
Continue reading “Unshackled”
More support for Neil Gorsuch, from someone who served as Acting Solicitor General under President Obama:
Right about now, the public could use some reassurance that no matter how chaotic our politics become, the members of the Supreme Court will uphold the oath they must take: to “administer justice without respect to persons, and do equal right to the poor and to the rich.” I am confident Neil Gorsuch will live up to that promise.
Neal K. Katyal, “Why Liberals should back Neil Gorsuch,” New York Times (Jan. 31, 2017) [link].
This is certainly on point:
It has long been frustrating to me that the only criterion by which Americans — almost without exception — evaluate judges is: Did he or she make decisions that produce results I’d like to see? Virtually no one asks whether the judge has rightly interpreted existing law, which is of course what the judge is formally required to do. Americans — again, almost without exception — want judges to be politicians and advocates. The idea that a judge should strive to interpret existing law regardless of whether it does or doesn’t promote politically desirable ends never crosses anyone’s mind, and if by some strange chance it did, the person whose mind was so crossed would reject the proposal indignantly. Americans in this respect resemble toddlers and their own President: they evaluate everything in terms of whether it helps or hinders them in getting what they want.
This devaluation of interpretation amounts to a dismissal of the task of understanding: everything that matters is already understood, so the person who would strive to understand is not only useless, but an impediment to the realization of my political vision. To the partisan, the absence of partisanship is always a sin, and perhaps the gravest of sins.
Alan Jacobs, “Judging Judges,” Snakes and Ladders (Jan 31, 2017) [link].
Critics of Justice Scalia often accused him of inconsistency. And insofar as he was a methodological originalist he sometimes was inconsistent. But I think the heart of his jurisprudence was disciplinary originalism, and with his death the most powerful embodiment of that vital principle was lost. I do not think we shall look upon his like again. And that means that our Supreme Court will continue to make the kinds of decisions it has been making for decades, but will have no one on its bench to remind it of what it’s really doing. Antonin Scalia was the conscience of SCOTUS, and I don’t see how it’s going to get another one.
Alan Jacobs, “Scalia and Disciplnary Originalism,” The American Conservative (Mar. 7, 2016) [link].
Jacobs makes the point that if we want the Constitution to mean anything at all in our conversation, we have to allow it “to speak” to us. There is a followup at [link].
“This is theft. And this — stealing the color white — is a very good example of the problem. It’s not a national security secret. It’s about stealing something you can make a buck off of. It’s part of a strategy to profit off what American ingenuity creates.”
John Carlin, Assistant Attorney General, U.S. Department of Justice (National Security Division. Del Quentin Wilber, “Stealing White: How a corporate spy swiped plans for DuPont’s billion-dollar color formula” Bloomberg Businessweek (Feb. 4, 2016)[link]
This story has everything—simple chemistry, industrial espionage, criminal prosecution, and international travel! The details seem criminal—hacking private computers, bribing disgruntled ex-employees, secret safe-deposit boxes, lying to federal agents—but there is something about the basic chemistry which seems like it should not be protectable. So simple: Ti + O + O. But like many things it is more complicated than that.
Further reading: FBI press release: “Walter Liew Sentenced to 15 Years in Prison for Economic Espionage” (7/11/2014) [link]; “U.S. v. Liew: Opening Statements and FBI Testimony Kick Off Seven-Week Industrial Espionage Trial” Orrick (1/8/2014) [link].