After the posting this morning over the controversy involving former Indiana Deputy Attorney General Jeff Cox, I had an opportunity to discuss the allegations with him in detail. Cox makes an interesting free speech case over his treatment and later termination for comments that he made on Twitter and on his blog. I wanted to share some of those details and the concern over a termination based on a lawyer’s statements in his private life.
Here are the salient facts that Jeff Cox revealed in our conversation:
First, Cox confirmed that he never connected his statements to his position at the Indiana Attorney General’s office. After he created his blog, he corresponded anonymously. Later, he added his name but never identified himself with his office. Indeed, he told me that Adam Weinstein from Mother Jones first contacted him at his work e-mail. He responded to that e-mail from his personal e-mail. When Weinstein again replied using his work address, Cox said that he answered his questions using his personal account.
Second, Cox says that his superiors knew that he had the blog and did not discourage him. Indeed, he said that he started the blog Pro Cynic in 2004 as an experiment for the Indiana Attorney General’s Office, which was still unsure of how to use blogs. He began to use his real name only after he was assured that he could not be punished for blogging so long as he did not associate his office or his position with the blogs. He recounted how, sometime in 2006, he had discussions with senior staff and was told that there was no need to keep his blog posts pseudonymous. He said that he viewed the blog as personal, not representative of the office, because he never identified it with the office, blogged on his own equipment and time and did not talk any issues that related to the office or state matters. The office simply asked him to avoid discussing local or state issues. Ironically, that meant that Cox focused on international issues like Afghanistan and out of state issues like that of the strike in Wisconsin.
Third, Cox insists that many of these comments are taken out of context. He said that he made a great number of comments designing to start debates and often meant in jest. He is not anti-union and actually comes from a union family (his father is a union member and his family is composed of steel workers and coal miners). He said that he was bothered by reports that the Sergeant of Arms told legislators that he could not guarantee their safety but that the reference to live ammunition was meant as hyperbole. He insisted that he liked to spar on the blog and often used incendiary language to spur debates. That is why, he insists, his site was called “Pro Cynic.” “Pro Cynic” was short for “Professional Cynic” and was “always intended to be a mixture of seriousness and humor, ‘cynic’ being a synonym for satire, sarcasm or irony.” He stated that the office was aware of his often off-the-wall commentary on the blog, which would sometimes be the subject of office joking. He says that he would make fun of himself on the site, such as proclaiming that the site was “one small step for man …”
Fourth, Cox did not work in any area remotely associated with the Wisconsin controversy. He handled eminent domain cases and was a member of the transportation practice group.
Fifth, he was terminated by the Attorney General’s office after a brief discussion with his superiors. He was told that he could be fired for simply bringing discredit upon the office — even due to statements made as an individual.
Sixth, Cox had a good record with the office. In fact, in 2010, he earned the “You Rock” award – a painted rock – for going above the call of duty in serving the people of Indiana. He had worked with the office since 2001 when he began as a law clerk and continued after his graduation.
In my view, these facts (if proven) would make for a strong free speech claim. We have been discussing the trend toward increasing discipline for public officials based on actions or statements occurring in their private lives. We have seen this regulation of private speech in cases that involve disciplinary actions against students (here, teachers (here and here and here and here and here and here), police officers (here and here and here) and other public employees (here).
The connection made in this context to the office was not apparently made by Cox but by Mother Jones magazine. Cox has since closed his blog and regrets causing the controversy. The question is why he was not simply given a warning about such comments and how they reflect upon the office. Now that his name has been associated with the office, he would likely have curtailed or stopped such comments.
There is obviously a great deal of anger over these comments, but the real question is whether a public employee like Cox has any protection for comments made as a private citizen.
In 2006, the Court decided the case of Garcetti v. Ceballos, in a close 5-4 decision against a public employee. In this case, Justice Kennedy ruled that the First Amendment does not protect “every statement a public employee makes in the course of doing his or her job.” However, this was a case where the assistant district attorney was making the comments are part of his duties and the Court ruled that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In this case, Cox made no association with his office. Notably, even in a matter involving statements made in the course of one’s duties, the vote was a close call with Justice Alito deciding the case as the fifth vote.
In Pickering v Board of Education (1968), the Court ordered the reinstatement of a teacher who wrote a letter to a newspaper critical of the local school board. The Court found that a public employee’s statements on a matter of public concern could not be the basis for termination without more of a showing, such as knowing or reckless falsehoods or the statements were of the sort to cause a substantial interference with the ability of the employee to continue to do his job.
I have great problems with the scope of the Garcetti opinion. Yet, Kennedy did note that:
At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v. Sindermann, 408 U. S. 593, 597 (1972) . So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. See, e.g., Connick, supra, at 147 (“Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government”).
This case would appear to involve matters of public concern and comments made as an individual citizen.
What do you think?
Jonathan Turley
Additional source: ABA Journal
If my being dismissed “as a crank” is the price of my attending to my conscience, then I rejoice at being given to pay that price. The future of the children of the world is worth impossibly more than I, as an ordinary person, can ever pay.
I am a member of Hope United Church of Christ, Sturgeon Bay, Wisconsin. I may have mis-struck a computer keyboard key, the relevant section of the Wisconsin Constitution is Article I, Section 18, which, copied and pasted from the State of Wisconsin web site, reads:
Freedom of worship; liberty of conscience; state
religion; public funds. SECTION 18. [As amended Nov. 1982]
The right of every person to worship Almighty God according
to the dictates of conscience shall never be infringed; nor shall
any person be compelled to attend, erect or support any place of
worship, or to maintain any ministry, without consent; nor shall
any control of, or interference with, the rights of conscience be
permitted, or any preference be given by law to any religious
establishments or modes of worship; nor shall any money be
drawn from the treasury for the benefit of religious societies, or religious or theological seminaries. [1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982]
I live in the State of Wisconsin and I find that the Anglo-Adversarial System of Law and Jurisprudence infringes on my right, in accord with the Wisconsin Constitution, to worship Almighty God according to the dictates of my conscience. Further more, I find that any attempt to compel me to believe other than according to the dictates of my conscience, in my worship of Almighty God is an unconstitutional infringement of my Wisconsin Constitutional right to worship Almighty God according to the dictates of my conscience.
That, dear folks, simply is not negotiable as I may be affected by the beliefs of others when the beliefs of others are as to require of me that I not worship Almighty God according to the dictates of my conscience.
To the law, I do not give or grant the right to “have it both ways,” such that the law defines me as not worshiping Almighty God according to the dictates of my conscience by complying with coercion in such ways as violate the dictates of my conscience.
According to the dictates of my conscience, it for the law to serve humankind and not for humankind to serve the law. Thus, in my worshiping Almighty God according to the dictates of my conscience, my conscience dictates that the law of mankind is unconscionably abusive whenever the law, as connotative constructs, is placed above any human person.
As I do not submit my conscience to other than Almighty God in accord with my understanding of Almighty God, so I do not seek that anyone else submit their conscience to me, anything I believe or disbelieve, or to my understanding of Almighty God.
The words of the hymns used at Hope United Church of Christ this mourning are all in the public domain:
O Master, Let Me Walk With Thee
O Master, let me walk with thee in lowly paths of service free; teach me thy secret, help me bear the strain of toil, the fret of care.
Help me t he slow of heart to move with some clear, winning word of love; teach me the wayward feet to stay, and guide them in the homeward way.
Teach me thy patience; still with thee, in closer, dearer company, in work that keeps faith sure and strong, in trust that triumphs over wrong.
In hope that sends a shining ray fr down the future’s broadening way, in peace that only thou canst give, with thee O Master, let me live.
Washington Gladden, 1897, alt.
Breathe on Me, Breath of God
Breathe on me, breath of God, fill me with life anew, that I may love what thou dost love, and do what thou wouldst do.
Breathe on me, breath of God, until my heart is pure, until my will is one with thine, to do and to endure.
Breathe on me, breath of God, till I am wholly thine, until this earthly part of me glows with thy fire divine.
Breathe on me, breath of God, so I shall never die, but live with thee the perfect life of thine eternity.
Edwin Hatch, 1878
Let Us Break Bread Together, (with the original “on our knees” changed by J. Brian Harris to “on our feet,” and the original “fall down on our knees” to “stand tall on our feet” and “sun” changed to “son”…)
Let us break bread together on our feet, let us break bread together on our feet.
(Refrain)
Let us drink wine together on our feet, let us drink wine together on our feet.
(Refrain)
Let us praise God together on our feet, let us praise God together on our feet.
(Refrain): When I stand tall on my feet with my face to the rising son, Oh, Lord, have mercy on me.
African-American Spiritual, 19th century, with some words altered by Rev. J. Brian Harris, Ph.D., P.E., 2011
The First Amendment of the Constitution of the United States (of America) does not allow the rule of law to establish or disestablish my religion or my right to worship Almighty God according to the dictates of my conscience.
All the lawyers of the world may jump up and down with raging fury at my defiance of the demand of the rule of law, to such extent as such demand may exist, that I act in discord with my conscience in my worship of Almighty God; and my conscience shall stand resolute except as demonstrably shown to me to be misleading me through reproducible scientific methodologies.
The following will suffice very nicely to inform me that my conscience has misled me:
1. Truthfully describe some mistake actually and demonstrably made.
2. Truthfully and reproducibly describe and demonstrate an achievable process through which the mistake actually and demonstrably made could actually and demonstrably have been avoided such that it actually and demonstrably was not made.
3 If 1. and 2. have been reproducibly and truthfully demonstrated, I shall allow my having been misled by my conscience, as truthfully and reproducibly demonstrating 1. and 2. will be the scientific invalidation of the law of non-contradiction (aka, the law of contradiction).
In the presence of a new scientific paradigm which replaces part of all of a prior scientific paradigm, citing those parts of the old paradigm which the new paradigm replaces as disproof of the new paradigm is (what is a good word? how about 🙂 ) hogwash.
Brian,
Trying to talk about the law in the language of bioengineering is like trying to dance about architecture. You will not change any inequity you see in the law by talking about dissolving it. Because talking of dis-union? Is simply more anti-legal antisocial bullshit, Brian, and your “dictates of conscience” are merely looking to create tyranny and/or anarchy. If you want to discuss ways to improve the law? Great. If you just want to bitch and whine about the inequities and suggest solutions that all involve dis-union or removing the role of courts in society or dispensing with the need to laws altogether or some other such antisocial nonsense? You are either 1) insane, 2) a troll or 3) an insane troll. Take your pick. But the rambling about bioengineering and physics and all that shit has come to an end. None of that is applicable to law. Either stay on point or continue to be dismissed as a crank.
RE: J. Brian Harris, Ph.D., P.E., March 6, 2011 at 4:29 am
Oops… Left out what I intended to include. Got chased into a small room with a water closet facility because of being alive because of having no colon since 1986, and no colon cancer for want of a colon that could be terminally cancerous.
I use the principles of biophysics in my work in bioengineering, and the Unified Field Theory toward which I put effort is a biophysical unified field theory, and not anything nearly so inconsequentially trivial as the simple unification of electromagnetism with gravity.
Perhaps some operational-like definitions may be useful:
“Engineering is the solving of practical problems, efficiently, economically, and effectively, using scientific principles.”
“Bioengineering is engineering applied to the phenomenon of life.”
“The phenomenon of life is comprised of that deemed alive and its substrate.”
“Biophysics is a name for the entire collection of scientific principles useful in doing the work of bioengineering.”
The classification system deemed appropriate to the profession of law may contrast with the classification system deemed appropriate by one particular member of the profession of bioengineering…
It is because I find that the classification system I observe to be deemed appropriate by the profession of law infringes on the classification system I, personally and professionally, deem appropriate to my professional practice of bioengineering, that I also find, in accord with the gentle guidance of my conscience, a clarion call to bring to the attention of members of the bar the infringement of conscience which strongly concerns me.
Buddha Is Laughing 1, March 5, 2011 at 7:51 pm
Brian,
Let’s try to stay focused on ways to improve the legal system. Unified field theory would revolutionize physics and electrical engineering – possibly a few other hard sciences like nuclear medicine, but in the end, it will have zero impact on the law. If you want to talk UFT, I suggest the following blog as a more appropriate venue:
http://www.technologyreview.com/blog/arxiv/
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My reason, and my only reason, for posting comments here is my doing that which I find I am able to do which I observe has the highest a-priori probability estimate I can devise of actually improving the legal system and the pragmatic implementation of law with regard to what I, in accord with conscience, find to be the ultimate identifiable root cause of disrespect for law stemming from people finding it not feasible to be in fully conscience-based law violation avoidance.
In accord with my conscience and my understanding of biophysics as relevant to the structure(s) of human society, I find what is, to me, as-yet-unshakable biophysical evidence of something predating recorded human history which drives people into a system and structure of law(s) which is such as to preclude humans being able, in accord with conscience, to be truly law-abiding in the sense of not being violators of law(s).
Using the methodologies of biological pattern recognition of my thesis adviser and his colleagues, and my own enhancements of this aspect of biophysics, I find no possibility of any system of law and law enforcement which defies known and well-observed laws of biophysics which can include the possibility of actual human individuals being permitted to not be in violation of law(s).
That which a system excludes is not included in any system which excludes that which is excluded from the system.
I put in somewhat over five hours walking around the Wisconsin Capitol Building yesterday. There are at least two contrasting “kinds of walkers.” Perhaps 25,000 walkers walking around the State Capitol Building, and one Scott Walker not obviously present as I was able to observer, and therefore, while I was a talking, walking person, as were many others, there is also one Walker Talker whose talking troubles my sense of conscience, and does so in formidable depth and detail.
There appears to me to be a significant disparity of viewpoint separating the walkers from The Walker. That apparent disparity has piqued my conscience into gentle, peaceful, deliberate, diligent action.
I talked with a few hundred people who are, like me, rank and file union members. Towrd mid-afternoon, from a stage slightly to the northwest of the State Capitol Building, a woman sang a collection of union songs. Beautiful, inspiring, motivating…
She commented that she was not a union member. I found myself in disagreement with her view. If she is not a Union member, what is she?
“We the People of the United States, in Order to form a more perfect Union…”
I went to Madison, Wisconsin, yesterday, as an AFSCME Illinois Retiree Chapter 31 member and as a Wisconsin Resident, because I have terrible conscience pangs of alarm that “top tier people in power” are as though blindly and unwittingly striving to the limit of possibility to form a more perfect DIS-UNION, and that phenomenon-as-apparent-to-me is intensely troubling within my conscience and its gently resolute guidance (gently resolute guidance is my personal interpretation of “according to the dictates of conscience shall never be infringed” as found in Article I, Section 19, of the Wisconsin Constitution).
What I do and how I go about doing it is in conformity with the Wisconsin Constitution, in that, according to the Wisconsin Constitution as the framework of law in Wisconsin, I categorically and unequivocally disallow infringement by law upon the dictates of my conscience.
To the limit permitted by the existence of existence, I do not ever actually hurt people, and I bring to such attention is is attainable my observations regarding what does actually hurt people, so I do in accord with the dictates of my conscience.
Tell me of a higher pro-social standard by which any individual person can live in any achievable way as a member of human society, and I will put all of my available effort into mending my ways.
Brian,
Let’s try to stay focused on ways to improve the legal system. Unified field theory would revolutionize physics and electrical engineering – possibly a few other hard sciences like nuclear medicine, but in the end, it will have zero impact on the law. If you want to talk UFT, I suggest the following blog as a more appropriate venue:
http://www.technologyreview.com/blog/arxiv/
I am getting ready to head to Madison early in the morning, to see, hear, and learn as I find I am able to do. The comments here about my work are minor compared to how I was treated by come classmates and teachers during my grade, junior high, and high school days.
Perhaps I will garner some sort of notice in Madison; I am a mandatory child abuse reporter in Wisconsin, and have yet to find a police department that has much of a clue as to what child abuse really is. Sad. Especially for children being abused in ways to which law enforcement is blind…
I will be elsewhere for tomorrow, and expect to be back on Sunday. Funny thing, though, I know a retired physicist who worked at one of the premier national physics laboratories who has been unable to find where my notions of a Unified Field Theory might be in error.
Then there is that little book by Alan M. Dershowitz, The Genesis of Justice. I first got the 9 hours or so read by Dershwitz at a rummage sale, and later got the book.
The problem with scientific paradigm shifts is, they seem to happen whether some particular people wanted them or not…
Thank you, kind sir.
BIL:
“I hope this has been helpful.”
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As good a rule book for rational argument as I’ve seen. Kudos, my friend.
Yikes. Pardon the typos. Like I said, I’m really tired.
Brian,
In this message, I am going to address some general issues about your presentation. I’m going to save the “3 Points” until tomorrow. Mainly because it has been a long and rainy day and I’m beat. Before I get into the general issues though, I’d let to address your above digressions into metaphysics and quantum mechanics.
First, let’s dispense with the metaphysics. I have no issue with the concept of reality as illusion. Indeed, it is an underpinning of my philosophical system of choice. That the dichotomy between self and all is false presents no issue to our communication. This is reflected in my firm belief that the world is what we make it . . . to a point. There are always things outside human control. The best we can do is the best we can do with the any given situation. A more accurate statement would be the human social world is what we make it. Much of the rest is left to the vagaries of chance, randomness built in to the universe at the quantum level. I also believe most, if not all, outcomes are attainable as I’m a proponent of Everett’s Many Worlds Theory to reconcile how we can perceive non-deterministic events with the deterministic equations of quantum mechanics. The proper path at a branch holds the key to optimal outcomes, even if that path is not always predictable or controllable by human action. It has a more fractal appeal to it than seeing the universe as linear and bound by the collapse of the wave function. But I digress. Back to reality as an illusion. Although self and other are a false dichotomy, this does not negate that many, many others, indeed most, of humanity are trapped withing the cage of ego and self. This is not only the root of much suffering, it is also the root of much crime.
What is murder but the ego of one extinguishing the perception of existence of another? And for what? Revenge? Simple greed? The pure love of killing for the sake of killing? It doesn’t matter the specific motivation in the end as all of these motivations are related to ego. Illusory or not, the existence of others as unique points of perception and their insistence that they are distinct from the rest of the universe is key to understanding the problems of social justice.
That being given, in order to maximize social justice, we must deal with the fact that others are bound to self and see no duty beyond self. Sometimes this manifests as simple blindness to the suffering of others. Sometimes this manifests as pathological sociopathy or psychopathy. Regardless, any solution must be presented in the “language of the self”.
Now a more direct address to your presentation.
Do you want to know why I cut you no slack for not defending your position? It wasn’t that you threatened my paradigm as the value of law and courts to society is a net positive and this is backed by linear logic that is applicable to a situation where all people think they are distinct from the universe. The true reason was three-fold.
First, I needed to know what kind of defense you’d put up to ascertain if you were truly autistic or simply a troll plant. We have had professional trolls here before, your identity as presented was a little too perfect a foil to be trustworthy given the nature of your anti-legalism message and I’m a naturally suspicious person. I needed to be sure and your reactions told me what I needed to know. If that caused you stress, I do apologize most sincerely. Like I told you before, not all who attack your ideas are your enemy. However, your idea would have merited challenge on the merits alone. It has inherent flaws that I hope you’ll see better as we discuss the “3 Points” later.
Second, there are those in this world who would treat some of your assertions much more harshly than I have. You may dismiss parts of Aristotle’s work, but he was right when he said, “Learning is not child’s play; we cannot learn without pain.” This is true for the majority of humankind. As a species, learning is a difficult and often painful experience. Most people don’t like to be disabused of their illusions, delusions, bias and prejudices. Personally, even when unpleasant truths are revealed, I have always felt learning as pleasure. In this, I suspect we have more in common that in difference. But you need to understand you (and I as far as learning goes) are different than most people and takes those differences into account even if you do not rationally understand them. Realizing that most people are brought to understanding kicking and screaming will help you realize there are more persuasive ways to present your information to make it “more easily digestible” to your audience.
The thrid was that, because social justice is a cooperative effort, you must bring others to view any solution proposed as viable and desirable for the benefit of all. This will meet with resistance. Resistance exactly like that which I gave you. If you are to be successful in your work, you need to realize two things about stating your case. You are trying to address fundamental baseline human behaviors, behaviors that you man not share or even properly understand, so to minimize resistance, you need to make some basic changes in the way you present your idea(s).
As to the mechanics of your presentation, first, you must – I repeat must – conform to the rules of logic in your presentation. Circular logic, false equivalences, misrepresentation of accepted history and resorting to religiosity will not help you. It will in fact harm you. Logicians will tear your fallacies apart, as they will with false equivalences and misrepresentation of accepted history. There is a simple list of logical fallacies on Wikipedia. I suggest you familiarize yourself with them so that you can avoid them in your presentation at all cost.
As far as history goes? You should look into the the Code of Justinian – the Corpus Juris Civilis – as it is both the model upon which modern civil law (as used in most of Europe and Louisiana) and regulations are built and it also accomplished something I think is in line with your goals of making the law more “knowable”. The Corpus Juris Civilis was complied by Justinian by looking at all the previous body of Roman law and distilling it. He reduced the volume of laws in Rome thirty-fold by codification. Also familiarize yourself with the history of English common law as it – not ecclesiastical courts – are the true root of American jurisprudence as used in the majority of jurisdictions and also the the basis of our adversarial court system (as contrasted to inquisitorial courts like those found in ancient civil law and ecclesiastical canon).
Speaking of ecclesiastical courts, religiosity should be avoided as well. It will harm you because simply not everyone shares the same beliefs as you do. Phrasing your case in standard logical terms and in religiously neutral language will help you. Belief, no matter how transcendentally perfect in an illusory world, will not help you win as many hearts and minds as neutral logic. One reason is logic is verifiable and has checks. Despite your desire to unify science and religion (which I still think unattainable), you must resist the urge to do so in the analysis of the law. Stick to standard logic and empirical proofs. To change the way people think about something, you must be using the “same language” as they are, even if your personal preference is for postpositivism.
Another reason is that by omitting religious language – no matter how well read you are in other traditions – will not lead others to think either rightly or by mistake that you are attacking their religious beliefs either directly or by omission. This is one of the reasons I am very careful to note repeatedly that I am a philosophical Buddhist and not a religious Buddhist. However, I couple this with my naturally skeptical nature and treat all religions with a critical eye. This is NOT an approach I suggest for you. Stick to religiously neutral language to present your case and you’ll fare far better. Also, keep the metaphysics to a minimum. The social construct you are addressing – law – is inherently distant from metaphysics. Philosophy may be a basis of law, but it is more a pragmatic exercise than speculation. Sticking to the pragmatic aspects of measurable cause and effect will serve you better. In addition, metaphysics is a bit like religion in that some people read it and their brain switches off. Minimal digressions into metaphysics will help keep your audience focused.
That is all I can offer for now as I’m tired and I need a drink.
I hope this has been helpful.
Ask if you have questions.
Buddha Is Laughing 1, March 4, 2011 at 7:40 am
Brian,
I’ll get back to you later in the day when I have time to compose a longer answers. I’m going to be in and out a lot today playing catch up from having the flu this week and will only be doing “drive by” shorter postings until I get caught up.
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BiL,
You have been beautifully helpful to me, and in a way better than I ever hoped would happen. Please rest as needed. I am going to be rather busy getting ready to head to Madison early tomorrow morning, and may not have much time to be on this blawg.
I could never have considered doing what I may do tomorrow, to be utterly peaceful with myself and others while learning if I have indeed plausibly found a way to take my work to the public such that it can safely be evaluated without setting off quite exactly the sort of civilization disaster which most concerned me before you profoundly validated the need for caution regarding that “undermining many established views” thing Dr. Irving F. Miller recognized in 1993 and wrote of in 1997.
I find society to be at a metastable “tipping point” whether or not I do anything. Therefore, I choose to that which I believe will best promote the public safety, doing so in full accord with the gentle guidance of my conscience.
There is neither need to make wasteful haste nor to dilly-dally until ruination overcomes humanity. There is a path between tyranny and apathy, and I am resolved to put my whole life toward its practical realization in an imaginary world and in such of the world as is also actually real.
Thanks, and be well.
RE: Buddha Is Laughing, March 3, 2011 at 6:52 pm
Brian,
Have you had time to think about those three areas I mentioned?
I want to get an idea of your grasp on how those areas result in much of the injustices you perceive before continuing.
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I was rather tired last evening when I made an effort to usefully reply, and now seek to simplify and improve my response.
The three questions of your posting of March 3, 2011 at 1:54 pm are so significant to my work as to lead me to write a short preface to my replies.
My work is of a bioengineering approach, using the scientific methods of biophysics, to the most serious social enigmas I have been able to identify; ones of intractable resistance to the grasp of prior science and methods of science.
Before I became of teen age, my family library included Pierre Lecomte du Noüy, “Human Destiny,” Longman Green, 1947 (my parents having the first 1949 paperback edition which I now have). Lecomte du Noüy (who died in 1947) was a biophysicist whose writing encouraged me to look for ways to unriddle problems of seemingly impossible difficulty. Lecomte du Noüy’s work led me to the hunch that, if I worked with unbreakable resolve against an impossibly difficult problem, there might be a tiny chance of my learning something useful.
Because the intense violence of World War II, starting with the invasion of Poland, came to my attention as I was beginning to make sense of the sounds of words, and because of my parents strongly expressed concerns about the carnage of war, I became willing to put my whole life into an effort to unriddle war, even though I saw no obvious way to ever do that.
The difficult may take forever, the impossible may need countless forevers. But what is a forever? My spell checker in use is as though unwilling to allow forever to be plural. Wonder why?
There is a property of being autistic as I find I am. My brain appears to be unable to stop; so that I work at least as hard when asleep as when awake, and I am absolutely unable to slow down or otherwise abate my thought processes.
The way I experience life has not changed since before I was born. What I experience changes beyond anything I can yet imagine as really being real. An event happens and I respond to the event in whatever way I am able to respond, and every response I make is itself an event to which I respond as I am able to respond. In this manner, I never experience even the slightest discrepancy between my response to an event and my ability to respond to the event.
Instead of finding myself having responsibilities, I have only response abilities and I only learn of my response abilities as I respond to the events which make manifest my ability to respond to each individual event and collections of individual events as events themselves.
In my life experience, I have the past only as a form of imagination for which “memory” is a useful word. In my life experience, I have the future only as a form of imagination for which “planning” is a useful word. In my life experience, I have the present only as a form of imagination for which “awareness” is a useful word. Indeed, I experience my own existence only as imaginary, in the sense of imagination in which “existence” is a useful word.
Perhaps I can put that more simply yet. Within my life and life experiences, even my life and its experiences are at best only imagined. All of reality is a proper subset of what is imaginary.
There is some very traditional mathematical basis for my regarding all reality as a proper subset of what is imaginary, and that proper subset is as though itself of vanishing reality.
I recall that TonyC. decided to find out what I know of “e raised to the (i times pi) power,” and the “answer,” put one way, is the ordered pair (real, imaginary) in the complex plane of (-1,0).
I is done did study some maths. I done learnt that complex variable stuff in grade school, the better to do the work of applied quantum mechanics commonly known as electronics engineering.
Albert Einstein described reality as a four dimensional space-time continuum, but could not attain that “Unified Field Theory” which allegedly is as though the holy quale of physics.
My dad, in the late 1940s, a scientist having majored in philosophy and minored, so he said, in biology and, by doing independent research in astronomy which evidently never appeared on his transcript.
My dad worked on the idea of a Unified Field Theory and concluded while I was in grade school, that Einstein had gotten the dimensions of the problem wrong. My dad did not have the mathematics background to figure out what the dimensions of a viable Unified Field Theory need to be. I do have the needed mathematics background.
The Unified Field Theory is minimally of eight dimensions; any less and any odd number of dimensions necessarily excludes from possibility any useful form of Unified Field Theory.
Some simple mathematics stuff I now provide. TonyC. pointed to the issue with his “e raised to the (i times pi) power” question. The mathematics of the actual world is of complex variables as commonly expressed as ordered pairs of real and imaginary orthogonal components.
For the Unified Field Theory to unify, the four dimensions of the space-time continuum are all mutually orthogonal complex variable planes.
In the ordinary complex plane as typically used in doing routine contour integrals, the abcissa is the horizontal, or real, axis, and the ordinate is the vertical, or imaginary, axis.
In the complex plane the total area of all of the real numbers is identically zero. The volume of the intersection of the real axes of the four space-time complex variable planes is also identically zero.
Therefore, the “real” world does not actually exist — except as a dimensionless singularity that has been named, The Eternal Now!
Of course, I am no Einstein or Galileo. I am a Wisconsin Certified Master Electrician, No. 660912. Galileo and Einstein were not Wisconsin Certified Master Electricians, and I am; therefore I am absolutely not a Galileo or an Einstein.
However me is perchance done gotten thet thar Unified Field Theory before any other Certified Master Electrician has?
Silly Unified Field Theory, it is so simple that it took a really stupid autistic person to look where it was waiting to be found? Or, I may be really wrong about this; being really wrong is inherent within and intrinsic to, a world in which quantum mechanics is the defining observable physical basis of said world being even infinitesimally possible?
I plan to be in Madison, Wisconsin, tomorrow, weather and other factors permitting. I plan to talk with people as I find talking possible. I will do nothing in any way of violence. I expect to learn and I will not know what I will learn until after I have learned it.
I find, as a Wisconsin Registered Professional Engineer, that Wisconsin Governor Scott Walker is a victim of severe child abuse which likely occurred during his transition from infancy to conventional childhood, said abuse having taken the form of a very severe and dangerous form of mental illness, the same sort of condition as led Jared Loughner to act as he did; that condition being rather well described in Nick Cumming’s “Focused Psychotherapy,” (Brunner Mazel, 1995) as schizophrenic catatonic stupor and in Lance Dodes, “Breaking Addiction” (Harper, 2011) as an Addiction. I further find that Wisconsin Governor Scott Walker is mentally ill in such a way as to present serious risk of danger to himself and others and especially to pose a threat of serious to severe child abuse through projecting his innocently-acquired child abuse onto children not yet abused through his intended, abusive fiscal policies. I put my license as a Wisconsin Registered Professional Engineer “on the line” in stating this, and I so state within my established professional competence within the lawful status of my being licensed as a Wisconsin Registered Professional Engineer, and do so without deception and do so only in the public safety interest, especially with respect to child abuse.
The answers to your three questions, BiL, I plan to live out to their end, to actually learn through experience and not only as theory merely espoused.
Please excuse any overlooked typographical blunders on my part.
Brian,
I’ll get back to you later in the day when I have time to compose a longer answers. I’m going to be in and out a lot today playing catch up from having the flu this week and will only be doing “drive by” shorter postings until I get caught up.
RE: Buddha Is Laughing, March 3, 2011 at 6:52 pm
Brian,
Have you had time to think about those three areas I mentioned?
I want to get an idea of your grasp on how those areas result in much of the injustices you perceive before continuing.
###########################
BiL,
Yes, I have been working with all the practical effort I am able to make. I had to deal with some family health issues during much of today, and just finished doing enough reply, now.
I will next quote your first post and interdigitate my comments therein, using italics much as I have been doing for a while.
1) equal enforcement of laws (which involves primarily the Judicial and Executive functions of government but is rooted in the Legislative functions),
I find it useful to regard the law as written as connotation and the conduct of people as denotation. In object relations theory, there is the object, and its most direct presence in the awareness of the mind is its denotation, and denotation does not involve words; therefore, acquiring denotation requires the immediate presence of the object. Connotation symbolizes denotation in such a way as to allow communication about the object without the object being present. Because denotation is not the object itself, but is the most direct and immediate mental model of the object, denotation tends to be much more accurate than connotation, even though, at significant distance, denotation tends to vanish and only connotation remains.
Unequal law enforcement (whether of disparity through by ancestry or socio-economic status or educational achievement, or other factors) results in people becoming unable to trust the law, and such distrust leads to further disparity when those who seriously distrust the law act out their distrust.
I regard disparity of law enforcement as the most severe of all factors I have yet identified in terms of the risk to the future of humanity.
It is my view, one I welcome being able to test and challenge, that equality of enforcement of law is a function far more of how law is interpreted in specific contexts than a function of the written form of statutes and regulations.
The way I observe law enforcement, as now constituted, to most often function is of the form of variable-ratio reinforcement (the most effective form of operant conditioning of which I am aware), with the result that willful violation of law may unnwittingly be increased through misunderstanding of how punishment as reduction of the future likelihood of an undesired behavior is compromised by punishments which, in being hurtful, actually reinforce the motives for hurtful behaviors.
I will gladly explain this in whatever detail may be needed for others to be able to verify the mechanism themselves.
The way I see to resolve unequal law enforcement is through adequately separating situational factors from those usefully deemed dispositional. This work has been going on in scientific psychloogy for decades, and there is now accumulated a very solid body of readily tested tools for sorting out situation from disposition.
Happenstance assignment of situational factors to disposition is among the most damaging of the inequality mechanisms I have identified within the structure of law and law enforcement.
I find a desperate need for laws, more than we have now, yet the the structure and implementation of law and law enforcement sabotages itself when people discover that no effort possibly achievable allows avoiding being found in violation of a law. Alas, finding law as though in contempt of life enough times with enough intensity may take some people into being both in contempt of life and law.
2) equity in formulation and drafting of laws and equal (which involves primarily the Legislative functions of government) and
To me, equity in administration of law is far more significant in terms of the application of law than in the formulation of law, in the sense that it is denotation which is most closely connected with conduct, because people respond to how the law and law enforcement directly affects then far more than to the words of the law without direct effect.
The question of equity of law and equity of law enforcement is the most difficult of these three questions, and the one into which I have put the majority of my research effort.
3) open access to the courts (which is a subject that touches upon all three functions of government as well as economics and sociology)
Open access is the only means I can find to allay even totally unintended judicial tyranny as some may find their experiences suggest may have happened with unfortunate outcomes.
In the sense of open access, if Professor Turley and you do not object, I prefer that we communicate, using various thread topics, to explore the core issues and what may resolve them decently while not unleashing unprecedented violence through not attending adequately to what is needed to safely improve the law before another revolution puts humanity into a terrible setback of violence.
I would add another item, 4) to the list you made, and that item is of doing the work of sorting out how best to improve the system of law so people will increasingly find the law to be fully worthy of respect in an open way, such as this sort of Internet communication allows. While tradition may suggest that all-out-winner-take-all battle is the easiest way to prevail, those who survive being losers-take-none may become very resentful, thereby setting off another round of winner-take-all/losers-take-none inequity (and iniquity?).
Were I asked about my sense of the difficulty of improving the law in the public safety interest, I would tend to state my view that no more difficult, yet worthy problem may ever exist. Whatever else I may state as an observation, I have found making biophysical sense of law and law violation by far the most profoundly difficult problem ever to come my way.
What does it take for someone to be willing to fly an airplane into a building because of hateful revenge? What is actually possible that has a chance of making whatever happens to such people vanish into the annals of history such that the day when no none will ever consider doing such a thing ever again?
BiL, that you are as concerned as I find you to be, that you challenged me and my work with fierce resolve is, to me, rather exactly what I was hoping might happen here.
When laws are misused, bad things tend to happen. Physical laws were broken in the design of that first Tacoma Narrows bridge (Galloping Gertie), that Hyat-Regency Skywalk, the Challenger booster O-rings, and the list is very long.
The core difficulty with doing what may turn out to be as though ahead of the cutting edge research is finding someone who is really willing to learn whether it is junk or whether it may be of some real use. For myself the answer is quite clear, for I have tested the ideas through my own life experiences. If I were working to prove my notions correct, my life would have been nowhere near to a reasonable form of evaluation. However, the null-hypothesis/alternate-hypothesis approach, with proper hypothesis construction can be plausibly valid as a way to support the alternate hypothesis if it takes but a single, seemingly very common, exception to a well-established general principle to rule out rejection of the null hypothesis.
My concern is a sense of human society, worldwide, as being like a gunpowder magazine in the midst of a raging wild fire. While my word use may be characteristic of someone who is autistic, and my word use may be difficult for many people, I have been able to get words work fairly well if I am allowed what i need to learn to use words better.
The possible merit of my concern about public safety factors and the ways of law and law enforcement has been strongly validated for me by many of the topics which have started many of these blawg threads.
Brian,
Have you had time to think about those three areas I mentioned?
I want to get an idea of your grasp on how those areas result in much of the injustices you perceive before continuing.
Brian,
I’ll be glad to address further the problems with your foundation, but realize that they are problems with your foundation, not just the expression – which while often cumbersome were often clear to me. However, I will have to do so later as I am fighting the flu and a nap is calling. In the mean time, consider what I said about the other areas of focus if you really want to reduce undue adversity and violence and to improve the quality of justice in the world. Those three areas:
1) equal enforcement of laws (which involves primarily the Judicial and Executive functions of government but is rooted in the Legislative functions),
2) equity in formulation and drafting of laws and equal (which involves primarily the Legislative functions of government) and
3) open access to the courts (which is a subject that touches upon all three functions of government as well as economics and sociology)
are all far more productive areas of focus than attempting to do away with adversity ab initio (which is literally impossible for the sum of humankind) or undermining the role of the courts in dispute resolution (which is indispensable for a just and equitable legal system to operate).
But now I have to sleep.
RE: J. Brian Harris, Ph.D., P.E., March 3, 2011 at 1:08 pm
Something went astray during my posting this referenced comment, and the following is a mix of my writing before editing it and it as edited, and it makes no sense to me as it appeared on the blawg, and the ending was somehow truncated:
“I am in search of someone who will “take no guff from me,” and who really cares about the future of humanity. If my work is wrong, someone needs to find a way for someone else in the future to go down the path I have taken if it really is the path of the destruction of humanity.”
Reads better as:
“I am in search of someone who will “take no guff from me,” and who really cares about the future of humanity. If my work is wrong, someone needs to find a way for stopping someone else in the future to go down the path I have taken if it really is the path of the destruction of humanity.”
The word “stopping” somehow vanished; it is in the WordPad copy of the text before I posted it…
What was truncated from the comment was to the effect that, if you can realize the very great difficulty I have in getting words to work as I tend to expect them to work, I would be truly grateful if you would be able to continue to help me to put my concerns into decent form, such that my concerns may be evaluated for their actual merit instead of being proof of my being autistic.
The bits and pieces of the work I am doing are scattered about in various books, scientific journals, and elsewhere, and, although I did develop some rather original research methods, they are described in my doctoral dissertation, hence someone may come upon the dots and connect them, even if I fail to accomplish that.
Someone who is very hate-filled and who otherwise understands what it appears to me I may have come to understand might turn out to be very terribly violent and destructive, for the danger to humanity is real, and I seek to avert the danger, not cause it, before someone else who is hateful causes truly terrible danger to people.
I am of the view, BiL, that you profoundly care about people, that you decry destructive behavior, and that my word-finding limitations may have led you to very reasonably misunderstand my writing only because of the way in which I am actually autistic.
Almost always, during my life, when I start to describe that which most deeply concerns me, people disconnect and I am left as though alone. That is not very helpful to me. You, BiL, are one of a very few people who has the courage and character to stand your ground, requiring satisfactory evidence instead of capitulating to real or imposed authoritarian bullying, who has the depth and breadth of law and law practice which I find I really need.
Please, if you are able, continue…
RE: Buddha Is Laughing, March 2, 2011 at 9:57 pm
Brian,
Congratulations! You finally put up. The bad news is that you are still in error. The good news is you are close enough to being right that you can almost touch it. First, a brief digression about your “types of students”.
Of course, I am “still in error”! That is why I continue to strive for ever greater learning and understanding, and why I really do welcome your responses to my posted comments.
When everyone else here as though “perhaps gave up on me,” you have had the decency to not disengage as almost everyone else during my life has done.
BiL, methinks we share a concern about the future of humanity, yet have come to think may be our shared concern via quite contrasting paths. I truly would welcome learning if I really am in serious error regarding the possibility of learning usefully from you… My hope for the future remains intact for now.
On August 12, 2010, which, as I recall, was before I began my serious effort to discover what of use I might be given on this blawg, I wrote a small “poster” with some words I deemed might help me to accept whatever might come my way through my posting comments. The text, as printed in a rather large font, is:
Whenever I attempt to tell of
the difficulty I encounter
in the way some other
people connect with me, I
find some people are as
though they demand that I
play a game I cannot win.
Some others are as though
they demand that I win a
game I cannot ever play.
Perhaps that is, perhaps that is not, a useful window into my experience as a profoundly and normally autistic as though living in a society in which my mere existence is often reflected back to me as though my mere existence itself is perchance worse than horrible.
I fully agree that “I am in error.” It is because of my both knowing and understanding such that I began posting comments here, after reading the blawg for quite some time, initially without “subscribing” to it by merely reading the archives.
It took me months of effort to learn enough about how this blawg works to even fantasize that I would not be banned from posting comments because of being far to inappropriate in terms of the content of what I would be able to post.
My interest here is about legal theory and is actually about nothing else. In 1961, while I was working at Allied Radio Corp., in Chicago as a repairman, an engineering student whose parents were acquainted with A. D. Davis, then president of Allied, came to work as a repairman as a summer job. After this engineering student returned to college in the fall, his dad’s stereo system quit working. The dad called his son for help and the engineering student told his dad to find a way to reach me directly for getting the stereo system repaired, and to not take ask anyone else to repair it.
His dad did call, did bring the defective equipment to the apartment my brother and I shared at 3552 W. Congress Parkway, Chicago, and I did repair it. My brother and I were in a two and a half room apartment, bathroom shared with other apartments, and half our bedroom was an electronics shop.
The dad was Murray Berg, a hospital administrator, he knew a city planner, Jerry Lubin, who had some stereo difficulties I fixed, Jerry Lubin knew Dr. Bessie Lendrum, a pediatric cardiologist whose undergraduate degree was Phi Beta Kappa physics from the University of Wisconsin – Madison, and Bessie had recently married a widower, Sidney M. Perlstadt, a senior partner of the Sonnenschein, et al. law firm in Chicago. Dr. Lendrum knew a teacher, Esther Bernstein who was born with a congenital heart condition which was uncorrectable until some time after Esther had attained adult age. Esther taught in Chicago and worked in a special education program in which my not yet wife worked.
Repair radios, get a job at Allied Radio, meet someone who tells of me to someone who tell of me to someone…and I am the dad of an adopted boy whose life had met what the Illinois Department of Chidren and Family Services deemed intolerable neglect and/or abuse, and I am the dad of a daughter born to my wife and me, who gets labeled as of Asperger’s Syndrome, in spite of my protests that she is neither more nor less “normal” than is anyone else.
The renowned Oak Park and River Forest High School decides to track my wife’s and my daughter so as she might never be able to get into a junior college, and that so raised my dander that I set about in search of a high school where my daughter would be treated as though she had the possibility of being an actual person. That high school turned out to be the Sturgeon Bay High School, in a much newer building than the one in which I was devastatingly molested by a classmate coerced by the gym teacher into effectively hating me.
I have a hunch that the attitude of the folks at Oak Park and River Forest High School was in error, my daughter graduated from Carleton College cum laude.
I may know something about error and about human error in particular. I have, and autistic members of my family have learned much about human error by being terribly abused by other humans who were in error not identical with the error of some of those of my close family.
James Reason, in “Human Error,” Cambridge University Press, 1990, as I understand his book, observed that human error is a universal individual human trait. In that sense, I am in error as an individual, as everyone is in error as an individual.
Given as foundational fact that I am in error, I work to ferret out and rectify error as I find practicable.
As a “for instance” example of the ubiquity of human error, consider the following from your comment to which I am responding:
First, a brief digression about your “types of students”.
It is error to deem those types of students as it appears to me that you did, for they were never my students nor my types of students, in a sentence with the word sequence, “First, a brief digression about your “types of students”..” The typology schema was and is only of Robert Benson; I had nothing to do with it save for reporting it.
Benson left out a fourth group of students. Those who are idealists, realize they are being indoctrinated yet resist indoctrination in favor of free thought to become skeptical critics of legal education and the law and feel an obligation to re-engage their consciences (or in my case, never abandon), understand that the law is a constructed tool and yet still through logic and reason come to the conclusion that it is a necessary tool for civilization to continue and that – while the tool can be reconfigured – there are some features that cannot be dispensed with. I will stipulate I was not a typical student. Having a strong sense of conscience that I got from my grandfather, the indoctrination did not have any effect other than to make me even more skeptical and critical.
Were I to bother, I imagine I could come up with hundreds of groupings of students not including Bensons three or your four.
As a skeptical legal analyst, one who without fail questions authority for when you cease to question authority you invite tyranny, that your supposition about dispute resolution in the adversarial mode causing adversity and not being the best tool available for dispute resolution is still wrong.
I allow that, within your mental models of existence, all you state you state correctly. And yet, I do not identically share your life with you, because you and I are not a single individual person. I allow for the contrast between your life and life experiences for mentally modeling experience much as it is to me as though you allow only for your life and your life experiences as valid for mentally modeling existence.
I continue to sense that your mental model of existence may tend to exclude me perhaps about as much as my mental model of existence tends to include you. That, however is a mere guess on my part.
If your goal is to “endeavor to raise from beneath the muck of human error is whether there is a way to improve the law without changing it so much that the law is destroyed by yet another revolting revolution in which hordes of people become the dead victims of the murderous side of revolting hatred”, then doing away with adversarial courts is a step in the wrong direction. Their functions as checks against tyranny and anarchy are indeed just as I described. The problems, and I’ll get to this in the next paragraph, have less to do with the mode of dispute resolution than with the materials they are working with – namely the law. As an analogy, the courts are a saw and hammer, the dispute is the wood from which the item (resolution) is to be made, and the law is the blueprint from which the resolution is to be built. One cannot build a resolution without the proper tools and the courts are those tools. One cannot change the nature of adversity anymore than one can change the nature of the wood one has to work with – you have to deal with what you have. One can, however, use better blueprints to maximize the use of the materials and tools. And it is on the blueprints you should focus because 1) they are malleable and ergo easiest to change and 2) not indispensable from the goals of reaching a resolution.
I continue to observe that my understanding, in terms of mental modeling includes your mental model as best I can make what is, to me, adequate sense of your mental model; whereas your mental model appears to not particularly include the mental model available to me. In that sense, it continues to be my view, which I fully allow may be very mistaken, the model I am able to use much transcends the model you are able to use. Tht makes me no more accurate than you and no less; to me it is simply an inescapable consequence of the quantum-mechanical aspect(s) of existence itself.
The personal conundrum my thesis and dissertation present to me is quite simply that little thing about the possibility of undermining many established views as cited by Dr. Irving F. Miller in his 1997 letter about his view in 1993.
If anyone has a sense of possible danger to human society and civilization with respect to the findings of my thesis and dissertation, please consider as possible my being far more concerned than anyone else may be. It has come to my mind that my work may act in the manner of checking the fuel level in a hundred gallon gasoline storage tank by using a lit stick of dynamite as a match and looking for the reflection from the surface of, say, 30 gallons of gasoline in the tank. Because gasoline in a storage tank is normally of vapor concentration far above the upper explosive limit, it is quite possible that dropping a lit stick of dynamite into such a tank will do nothing much until the dynamite explodes. If it were to work that way, my guess is that the shock wave from the exploding stick of dynamite would disperse the gasoline to well below the lower flammability limit so quickly that the gasoline would neither burn nor explode. The danger would not be from the gasoline, but from the dynamite.
Similarly “dynamiting” society with a dreadfully explosive idea would be terrible beyond terrible, and that mere thought has ruled out my doing much of anything with my thesis and its associated dissertation.
However, all the pieces of my work are lying about where someone is eventually likely to collect all of them and put them together. And that brings to my attention the core law theory issue of my posted comments here.
Is it better to wait for someone to “show how the dots are connected” who is “socially normal” in the sense of not being profoundly autistic if such a person accepts the adversarial principle and uses the connected dots in a way actually adverse to the existence of humanity, or is it better for a social misfit who rejects the adversarial principle so well as to be awfully concerned about the future of humanity to such extent as to be willing to put the whole of one’s life into an effort to communicate the latent danger which may lurk hidden within the adverse nature of the adversarial principle?
In rejecting the adversarial principle I reject the desirability of whatever may actually be adverse to the continuing existence of humanity, regardless of what established views, however sincerely held, appear to be as though of an unlit stick of dynamite near a box of strike-anywhere matches…
There are ways to improve the legal system. Undermining the function of adversarial courts is not one of them. If you want to look at areas that need improvement? I suggest you not waste your time on that and consider the following areas: equal enforcement, equity in formulation and drafting of laws and equal and open access to the courts.
Without courts, especially without the court of public opinion, I can see no future for humanity. However, a court system which financially destroys a family who only made a decent effort to provide a safe and decent home for an eleven-year-old boy said to be in need of a safe and decent home where the boy might become an adult well recovered from identified-as-severe neglect and/or abuse is hardly the way to build a decent and safe future…
Adversity comes from disputes and no court system that does not reflect that reality is going to be efficient or stand a chance of being fair. If you truly understand the differences between inquisitional courts and adversarial courts, you’ll see that this is true because adversarial courts give every side a hearing and work to ensure that said hearing is impartial. If you want to make the law better (and by this I am assuming you mean “make outcomes and resolutions more equitable and just), making sure that laws are equally enforced regardless of social or economic status of individuals, that laws are just and equitable in their drafting and that everyone has full and fair access to the courts regardless of social or economic status? These are better places to start rather than try to undermine the role of courts in society. To be clear though, on the issue of better drafting of laws and equal enforcement, you’ll have to shift some if not all of your focus to the legislature and its various malfunctions (like the inequities created by campaign finance and lobbying) to address these issues. However, your fundamental assertions about courts creating adversity and encouraging tyranny and anarchy are still faulty. Bad laws do indeed encourage tyranny and anarchy though as well as encourage adversity where absent said bad laws there might not be any (for example our current outmoded patent law systems encourage litigation that better laws would avoid all together such as the various SCO/Linux lawsuits) and our outmoded copyright systems (such as the flood of RIAA litigation).
I have, and have read, Jethro K. Lieberman, “The Litigious Society,” Basic Books / Harper Torchbooks, 1981, 1993.
If you want to build a more just and equitable world, you’ll need the tools of the court.
I merely seek to offer to the courts a tool I find sorely missing.
You just need to find the better blueprints that achieve those results and still have the flexibility to deal with variations of materials that human interaction between themselves and the environment are going to create simply by their nature.
I am not aware that I do not have better blueprints, only no one seems willing to adequately examine them.>/i>
Do you have any problems understanding this?
Perhaps yes, perhaps no, “could be.” Do you have any problems understanding the nature and plausible viable use of what is pictured in “the blueprints of my work, which is actually directed toward saving the courts from becoming so adversarial that the court of public opinion sets out to replicate in enhanced form every disaster of legalism of the past many time over.
If so, I’d be glad to answer any questions or address any concerns you might have.
If we can set aside epithets and such, I would rejoice in being given a real opportunity for you to demolish any and every aspect of my work, provided that you have first come to understand it well enough to understand that my actual purpose is veritably not as you have come to believe, this being, as best I can yet discern, only because the way I am autistic has prevented me from finding words adequate for what I seek to have tested by you and others.
I have no fight with you, I really do respect you profoundly for what I find to be profound expertise in the field of law, expertise at a level previously not available to me in any useful form.
Your relentless insistence that my view is wrong is what I need more than anything else from someone who really cares about people, in such manner as I observe you doing.
I have found no significant “scientific revolution” in which the process we have been using is other than the best possible way to test a new scientific idea properly before it “gets loose and wreaks dastardly havoc.”
If you are willing to put the test, no holds barred, the issues of my work regarding the future safety of humanity, while not actually hurting anyone in any physical sense, then there may be useful and decent work which we may yet accomplish.
Scattered about in the scientific journals and books and people’s lives are all the elements of what my work is and is about. I learned most of what I know and understand by reading the works of others and by learning how to talk with thousands of people in depth and detail about the most hurtful experiences of their lives.
In my work and findings to date, criminal behavior is actually the result of subjectively experienced abuse which has produced forms of schizophrenic dissociative catatonic stupor, such that all people convicted of crimes are, from a biophysical view, people having forms of mental illness which make them identifiably dangerous to self and others. All the laws we need are already in place.
Anyone mistakenly convicted of a crime is likely to be someone falsely convicted or someone who is blatantly dangerous to self and others. Proper evaluation will determine who is falsely convicted and who is dangerous to self and others so as to need protective aslyum for their safety and the safety of others.
Finding all criminals innocent and simply releasing them would be orders of magnitude worse, in my mind, than the present mess.
We have all the laws really required, yet the actual problem I find is that there are not nearly enough laws, so laws which fit one past situation are applied to a present situation because of some similar aspects of the situations. That, reading many of the items which start the threads of this blawg, is a serious problem in my mind.
Nevertheless, I do not find the human predicament to be about the law per se, but rather about how to interpret the law so that it becomes ever more helpful and ever less hurtful.
Before some really violent person connects the dots and humanity is a tiny dot in the eventual history of the failures of existence…
BiL, I find no fault with you. I have never found fault with you. Neither do I find fault with my being autistic and my having profound forms of language delay, which are manifestly obvious to me on reviewing some of our comment interactions.
Because I apparently cannot be not autistic, and you cannot be as I am, that may be why there could be something useful to do, if you are willing to find that out…
I am in search of someone who will “take no guff from me,” and who really cares about the future of humanity. If my work is wrong, someone needs to find a way for someone else in the future to go down the path I have taken if it really is the path of the destruction of humanity.
Brian,
Congratulations! You finally put up. The bad news is that you are still in error. The good news is you are close enough to being right that you can almost touch it. First, a brief digression about your “types of students”.
Benson left out a fourth group of students. Those who are idealists, realize they are being indoctrinated yet resist indoctrination in favor of free thought to become skeptical critics of legal education and the law and feel an obligation to re-engage their consciences (or in my case, never abandon), understand that the law is a constructed tool and yet still through logic and reason come to the conclusion that it is a necessary tool for civilization to continue and that – while the tool can be reconfigured – there are some features that cannot be dispensed with. I will stipulate I was not a typical student. Having a strong sense of conscience that I got from my grandfather, the indoctrination did not have any effect other than to make me even more skeptical and critical.
As a skeptical legal analyst, one who without fail questions authority for when you cease to question authority you invite tyranny, that your supposition about dispute resolution in the adversarial mode causing adversity and not being the best tool available for dispute resolution is still wrong.
If your goal is to “endeavor to raise from beneath the muck of human error is whether there is a way to improve the law without changing it so much that the law is destroyed by yet another revolting revolution in which hordes of people become the dead victims of the murderous side of revolting hatred”, then doing away with adversarial courts is a step in the wrong direction. Their functions as checks against tyranny and anarchy are indeed just as I described. The problems, and I’ll get to this in the next paragraph, have less to do with the mode of dispute resolution than with the materials they are working with – namely the law. As an analogy, the courts are a saw and hammer, the dispute is the wood from which the item (resolution) is to be made, and the law is the blueprint from which the resolution is to be built. One cannot build a resolution without the proper tools and the courts are those tools. One cannot change the nature of adversity anymore than one can change the nature of the wood one has to work with – you have to deal with what you have. One can, however, use better blueprints to maximize the use of the materials and tools. And it is on the blueprints you should focus because 1) they are malleable and ergo easiest to change and 2) not indispensable from the goals of reaching a resolution.
There are ways to improve the legal system. Undermining the function of adversarial courts is not one of them. If you want to look at areas that need improvement? I suggest you not waste your time on that and consider the following areas: equal enforcement, equity in formulation and drafting of laws and equal and open access to the courts.
Adversity comes from disputes and no court system that does not reflect that reality is going to be efficient or stand a chance of being fair. If you truly understand the differences between inquisitional courts and adversarial courts, you’ll see that this is true because adversarial courts give every side a hearing and work to ensure that said hearing is impartial. If you want to make the law better (and by this I am assuming you mean “make outcomes and resolutions more equitable and just), making sure that laws are equally enforced regardless of social or economic status of individuals, that laws are just and equitable in their drafting and that everyone has full and fair access to the courts regardless of social or economic status? These are better places to start rather than try to undermine the role of courts in society. To be clear though, on the issue of better drafting of laws and equal enforcement, you’ll have to shift some if not all of your focus to the legislature and its various malfunctions (like the inequities created by campaign finance and lobbying) to address these issues. However, your fundamental assertions about courts creating adversity and encouraging tyranny and anarchy are still faulty. Bad laws do indeed encourage tyranny and anarchy though as well as encourage adversity where absent said bad laws there might not be any (for example our current outmoded patent law systems encourage litigation that better laws would avoid all together such as the various SCO/Linux lawsuits) and our outmoded copyright systems (such as the flood of RIAA litigation).
If you want to build a more just and equitable world, you’ll need the tools of the court.
You just need to find the better blueprints that achieve those results and still have the flexibility to deal with variations of materials that human interaction between themselves and the environment are going to create simply by their nature.
Do you have any problems understanding this?
If so, I’d be glad to answer any questions or address any concerns you might have.
RE: Buddha Is Laughing, March 1, 2011 at 8:22 pm
You are simply wrong, Brian.
AND
RE: Buddha Is Laughing, March 1, 2011 at 8:23 pm
“Popper’s approach may be acceptable for some branches of science”
Perhaps, and I am unable to actually test this, I have begun to find a few words that could actually work. While I observe that you, BiL, have truly excellent communication skills, the way I am autistic denies, denies almost perfectly, to me the ability to communicate with any semblance of your skill.
Because you have been helping me improve my communication skills by continuing to challenge what I write while almost everyone else on this blawg gave up “trying,” I am grateful for your continuing help.
My writing that I am grateful for your help is not sarcastic, is not cynical, and is not of retaliation. For your continuing help I have only genuine, real appreciation.
BiL, you wrote:
“You are simply wrong, Brian.”
I completely agree that I am simply wrong. I have known and understood that since rather early in my infancy, as the sounds I now name words began to collect in my brain and form patterns.
“Having known and understood that I am simply wrong,” since early infancy is the foundational basis for how I endeavor to live my life. So very many people have worked at treating me in “nice” ways, and I have always found it very damaging to me when folks do that, for, in being “nice” to me, I find people only strengthen the ways in which I am simply wrong, and the ways in which I am wrong become complicated and even more challenging for me to recognize well enough to be able to seek effective correction of the errors of my life.
It is because (and only because?) I am simply wrong that I interact with people in the ways I interact. I have never found any viable alternative to such.
When I arrived at the age when very little children begin to talk, my parents observed that I was not talking. This, they later told me, greatly troubled them, as it tends to trouble all parents of children exceptionally profoundly autistic in the sense of autism described by Dr. Leo Kanner.
There were some statistically unusual aspects of my parents’ lives. My dad’s mom, Rev. Emma Blanchard Harris, died when my dad was about two years of age. My mom’s mom, Amanda Julia Faust Lundquist, died when my mom was six months of age. My dad’s older brother, Addison, took up much of the parenting role for my dad, and my motheros older sister, Florence, took up much of the parenting role for my mom.
In terms of critical personality formation factors, my parents were effectively and largely raised by siblings not all that much older than were my parents. Put another way, my parents were significantly parented by children, and, throughout their lives, predominantly saw the world through the eyes of children and heard the world through the ears of children.
My parents were both autistic, my dad in the Dr. Hans Asperger sense, as his mom lived only until my dad was about two; my mom in the Dr. Leo Kanner sense as her mom lived only until my mom was about six months of age. However, the work of my mom’s and dad’s parents, and their approach to living in the world, is blatantly, as I have been able to review the family records I have inherited, that of people very much autistic in terms of brain biology indicators as available to me.
In my connecting with other autistic people, in person and via the Internet, I have yet to find anyone whom I experience as being “more autistic” (if that be meaningful?) than I find myself to be.
People have long observed that they experience me as being extremely “self-centered.” Alas, that is the essence of the way I am autistic, as best I can yet discern. I cannot give what I do not have. I cannot have what I have not been given. I am as I am as I am not as I am not.
As I cannot not be who I am, so I cannot be who I am not.
Such is the nature and form of the autistic prison of freedom in which I find myself condemned to live a stunningly very beautifully subjectively experienced personal inner life.
For me, the alternative to being self-centered is being not-self-centered.
For me being not-self-centered is having self displaced from itself, as I find self to be the center of persons.
For me, self being displaced from itself is of the form of the psychological defense mechanism of “displacement.”
For me, the psychological defense mechanism of displacement is the essence of the biophysics of addiction.
Harvard psychiatrist, Lance Dodes, wrote extensively about “the heart of addiction” being the psychological defense mechanism of displacement in his book, “The Heart of Addiction: A New Approach to Understanding and Managing Alcoholism and Other Addictive Behaviors,” Harper Paperbacks, 2002. Between writing “2002” at the end of the prior sentence, I needed to take my wife’s car to Sturgeon Bay for replacement, new tires, and the rural mail carrier brought today’s post. In it was Lance Dodes’ new book, one I had pre-publication ordered, “”Breaking Addiction: A 7-Step Handbook for Ending Any Addiction,” HarperCollins 2011. So, it being here, next comes a short book review.
Lance Dodes’ “Breaking Addiction” continues the work he described in him prior book, “The Heart of Addiction.” While The Heart of Addiction describes the mechanism of addiction very well in the view of this reviewer, Breaking Addiction carries Dr. Dodes’ addiction work into the realm of the process of resolving addiction, with methods this reviewer finds well grounded in biophysics, though Dodes describes his work within his field of addiction psychiatry.
Two brief excerpts from Breaking Addiction may help the reader to recognize the importance of Dodes’ recent work:
From page 7:
[begin excerpt from page 7]
Everyone knows that addictive behavior is not good for you. People who suffer with addictions may know this best of all, because they’ve lived it. But addiction persists. Strange as it may seem, it must serve some purpose. In fact, its purpose must be so great that it is even more essential than avoiding the bad consequences of addiction. It has to be more important than losing marriages, families, friends, jobs, and health. It has to be more important than losing your license to drive or to practice in a field that you care deeply about, more important than the pain of hurting people you love. What could possibly be worth all of that?
In terms of the outside world, the world of careers, family, and success, there is, indeed, nothing worth losing at all. The purpose of addiction must lie in the inside world, where what is at stake are feelings central to emotional survival itself. If this is the case, then nobody would be surprised to find that it overrules even the most important of external causes.
[end excerpt from page 7]
Dodes defines addiction on page 12, bold in the original:
[begin excerpt from page 12]
Addiction is a behavior intended to reverse a profound, intolerable, sense of helplessness. This helplessness is always rooted in something deeply important to the individual.
[end excerpt from page 12],
On reading through Breaking Addiction, about 200 pages, in the ten or so minutes I could so far spare, I find no evidence yet that Dodes has grasped the the biophysical basis of addiction, yet his book by far the best I have yet read regarding what professional therapists can do in practical ways within the norms of recent psychology and psychiatry professional practice.
This reviewer, Rev. J. Brian Harris, Ph.D., P.E., Wisconsin Registered Professional Engineer No. 34106-6, recommends, without reservation, Breaking Addiction to anyone interested in gaining access to what may well be a profoundly significant advance in addiction treatment methodologies. Addiction presents very serious issues for law and law enforcement, and the better informed are those who make and enforce laws, the greater becomes the opportunity to more than punish people who, as Dodes has written, have somehow found their lives confronted with, and often terribly damaged by, “a profound, intolerable, sense of helplessness.”
In 1993, I made an effort, for the second time, to return to the University of Illinois at Chicago (UIC), to complete the work of my Ph.D. in Bioengineering. In contrast with my earlier effort, in 1990, which was rejected, I was readmitted to UIC to complete the Ph.D.
However issues anticipated when I was readmitted arose after I had defended my dissertation with unanimous committee approval, and I was in the process of being dismissed as a Ph.D. candidate with a dissertation unanimously approved by my committee. That this happened may suggest its being an indicator of my dissertation being exceptionally unusual.
This morning, March 2, 2011, I telephoned Dr. Irving F. Miller, UIC Professor Emeritus, and informed him of my desire to publish a letter he sent to me on December 12, 1997. I hold that this letter may have been decisive in my being allowed to attain Ph.D. standing.
I emailed the text of that letter to Dr. Miller and he replied,
Hi Brian:
I have no problems or concerns with you making my letter public over the
internet. I stand by what I wrote in 1997. Good luck.
Irv
The text of that letter follows:
[begin text of letter from Dr. Miller]
Office of the Dean
College of Engineering
Akron, OH 44235-3901
(330) 972-7816 Office
(330) 972-5162 Fax
December 12, 1997
To Whom It May Concern:
I am writing at the request of Mr. Brian Harris to describe the circumstances under which he returned to UIC in 1993 as a doctoral student in Bioengineering. At the time, I was Director of the Bioengineering Program, and it was my decision to readmit him.
When I met Brian in 1993, he was recovering from mental illness, and he was ready to resume his studies. Since the work he had done prior to his illness was no longer available, he had to undertake a new dissertation topic. He presented me with an idea for a thesis dissertation that I found to be original and intriguing. I believed then, and I believe now, that it is worth pursuing. However, I warned Brian at the time that he would need to convince skeptical people of its validity. Whether the topic was appropriate for Bioengineering was not an issue because the idea of modeling mental illness clearly fits, as Brian’s doctoral committee agreed.
My concern about Brian’s dissertation topic stemmed from the fact that it is such an original idea. Most dissertation topics are simple extensions of settled work, and would not arouse the concerns of the people who must judge the dissertation. In this case, success could be just as damaging as failure, because such success could undermine many established views.
I believed in 1993, and I believe now, that Brian should be allowed to complete his dissertation work. Although it has taken considerable time, four years is not too long for a doctoral dissertation, particularly considering the fact that Brian has handicaps that need some accommodation.
Sincerely yours,
(Signed)
Irving F. Miller
Professor and Dean
The University of Akron is an Equal Education and Employment Institution
[end text of letter from Dr. Miller]
Of penultimate importance may be the observation of Dr. Irving F. Miller, made in December of 1997, to the effect that my work being successful could be just as damaging as failure, for the reason of success possibly “undermining many established views.
I have been vividly aware of the core conundrum my work may be understood as posing to human civilization and society. I find that Wally Byam, who founded Aristream and designed the original Airstream travel trailers, had a useful thought, “Let’s not make any changes, let’s make only improvements.’ I do not have the date for that quote, but it and the next Wally Byam quote are found in “Airstream: The History of the Land Yacht,” Chronicle Books, San Francisco, 2000. The following Wally Byam quote is dated 1960, and I find it terribly relevant to the world as it now is more than fifty years later (all caps in the original quote):
“WHETHER WE LIKE IT OR NOT, ANY FOOL CAN SEE THAT THIS
EARTH IS GRADUALLY BECOMING ONE WORLD.
NOBODY KNOWS WHAT THE FORM OF THAT ‘ONE’ WILL BE,
BUT IT’S GOING TO BE ONE OR NONE.”
On page 80 of the March, 2011, Scientific American, is a one page caution, “Death by Asteroid.”
On pages 55-59 of the March, 2011, Scientific American is an article named (bold in the title), “DEMONS ENTROPY AND THE QUEST FOR ABSOLUTE ZERO” and it was in that sense of “demons,” that I had in mind in a posted comment some time ago, “Demons are make-believes that make people believe in demons.”
On pages 29-33 in the March, 2011, Scientific American is an article about neurological resilience (caps in the original), “THE NEUROSCIENCE OF TRUE GRIT: When tragedy strikes, most of us ultimately rebound surprisingly well. Where does such resilience come from?”
It is terribly clear to me that, if my work is correct and also sufficiently misunderstood, such that it is recognized that guilt is of the form of a delusion because no mistake ever made either could or should have been avoided, and all the now-labeled-violent-criminals are simply released because of not being guilty as charged, the future of human society surely will be “NONE,” as in that Wally Byam quote. That obviously would be disastrously worse than anything which could have preceded it.
There is, however, a pathway to the future which is safer than the one I find humanity now is on, one which is already in place and working just fine, but not yet sufficiently well understood as to have become recognized as truly practical. That method is, from a Law Professor Emeritus standpoint, rather well written in Robert Benson, “The Interpretation Game: How Judges and Lawyers Make the Law,” Carolina Academic Press, 2008.
I am going to type and include the whole of “P.S. for Law Students” from Chapter 8, “Post-Scripts” from Benson. Yes this may lean heavily on the boundary of fair use, yet I seek to make very clear the merit of Benson’s book and encourage every law student, law professor, lawyer and judge who has not studied it in depth and detail to do so, with urgency.
[begin P.S for Law Students, pages 139-140]:
P.S for Law Students
As a law student, you’re one of a select group of academic achievers who surely know when you’re being indoctrinated. And yet, generation after generation, most law students fail to spot it. Your professors tell the Old Story with such a facile blend of confidence and mystery–and you are so dazzled and worn out–that you follow them over the brink and into the myth that law is found and not made.
It’s not that the professors are out to deceive you deliberately. Many of them were indoctrinated themselves, never studied the Legal Realists or their successors, and idealistically believe that the Old Story is a noble one. Others are too busy keeping up with the mechanics of the Old Story as applied to some specialized field to worry about whether it’s all built upon false premises. Most of them also find it easier to follow orthodoxy as set out in casebooks and curricula. Even the modernists and postmodernists on the faculty can find it tough to know what to teach if they tear the Old Story out of their course materials.
Unfortunately, the illuminati of your school are going to grade you on your ability to think inside the box of the Old Story, so you have little choice gut to learn it. The trick for you is to go in and out of the box without getting trapped inside. This can be done if you stay alert, and it’s very liberating. Once yu pierce through the Old Story indoctrination that is going on in most of your courses, law school becomes easier. Gone is the confusion about what the rule is or what a case really stands for: the answer is always “could be.” Gone is the control the professor has to make you seem foolish, because you can always reach into the Old Story’s bag of tricks yourself and make a plausible retort, or else shoot the professor a horse dose of Legal Realism: “Don’t you think the result would be different if the judge weren’t such a mossback conservative (or flaming liberal, or morally anesthetized fence-sitter, or …)? Or, Professor, since there is no official definition of what constitutes a holding of a case, the doesn’t that turn all holdings into possible dicta and all dicta into possible holdings, so that the whole notion of stare decisis is just a lot of applesauce? That sort of thing.
In my own classes where I tell the story I’ve told in this book, I find students usually divide into three camps. Some feel the scales fell from their eyes, sense of a breath of fresh air blow across their stifling law books, and become skeptical critics of legal education and the law. They feel empowered as legal analysts. More, they feel the liberty, in fact the obligation, to re-engage their consciences that law school has suppressed. So, this insight actually enables hem to make law and life more value-based, not less.
The second group is comprised of disappointed idealists. They acknowledge the reality of human subjectivity in interpreting the law, but hey still yearn for the ideal of the “rule of law” rather than rule by human beings. Candor about what’s really going on, hey fear, would just encourage more bias, ideology and politics, so we’d better keep it quiet. As a disappointed idealist myself, I share their yearning. But it is naive and dangerous to believe there will be less subjectivity if we cover it up. Since all interpretation is unavoidably subjective at some point, there is not less but merely different subjectivity and it is imposed by people who are obscure and manipulative about what they are doing rather than transparent and forthright. I myself cannot reconcile such a coverup with the values of egalitarianism and democratic government.
The third group of students is unfazed. They see the notion that the law is made, not found, a blasé common sense already shared widely by the public. These students are content to be learning the tricks of the trade even if the tricks are something of a sham, because society accepts that as the way the legal system works. They will be only too glad to make a lucrative living by continuing the professional tradition of the Old Story.
The choice is yours.
[end P.S for Law Students, pages 139-140]
As for that Karl Popper thing, the methods of orthodox science (aka normal science) depend on prior art upon which simple extensions and complicated extensions can be built.
Given a sufficient punctuation mark in the punctuated equilibrium creatively evolving structure of human society, a sufficient punctuation mark punctures the balloons of the Old Story of science so decisively that there are not enough Old Story balloons left upon which to build the new paradigm effectively and the ways of Old Science need to be enhanced by things like null-hypothesis/alternative-hypothesis approaches because nothing else can even begin to work at all.
The question of legal theory I endeavor to raise from beneath the muck of human error is whether there is a way to improve the law without changing it so much that the law is destroyed by yet another revolting revolution in which hordes of people become the dead victims of the murderous side of revolting hatred.