f/k/a . . . the archives

December 27, 2004

the heedless snowman

Filed under: pre-06-2006 — David Giacalone @ 1:44 pm

Holiday Bonus: I found a few more George Swede haiku in my Christmas Stocking


coldest day of the year
the lone skater laps
his breath

ice-ringed branches
the leg in the cast
starts to itch


in the howling wind
under the full moon
the snowman, headless


George Swede from Almost Unseen: Selected Haiku of George Swede .. snow pile


by dagosan:

coins inside walnuts -
great-grandchildren
cracking a smile


[Dec. 27, 2004, for Grandpa Bart]

one-breath pundit

coyote moon small Well, our Republic is much safer now, along with our consciences: Mark Sarvas at Elegant Variations calls for delinking our book cites from Google and un-subscribing from Time Magazine, while he calls the President a nitwit. With such clear-thinking laptop liberators as Mr. Sargas, our liberal Thermidorian Revolution must be right around the corner.

 

 

tiny check Mike Cernovich has been thinking about Blogger Ethics in the context of lawstudents writing on their weblogs about law professors. But, other than the question of privacy expectations, Mike’s hortatory “should” advice comes down to don’t do it, because your professor might retaliate. This approach doesn’t even rise to the status of etiquette,much less ethics, which has to do with right and wrong, obligations and duty. For the record: CYA and Lawyer Suicide Avoidance Tactics (LSAT) are not Ethics.

 

  • Any law student weblogger who doesn’t realize he or she needs to be circumspect with what is said on a weblog (whether anonymous or not) doesn’t have the common sense needed to be a lawyer.
  • Any weblogger who doesn’t have the courage to write about significant matters of principle, values or tactics, when his or her opinion differs from that of a professor or other authority figure, may not have the fortitude it takes to be anything more than a mediocre lawyer.

 

tiny check  Overlawyered.com‘s update on the California case of Rinaldi v. Pisano notes that an holy family

emotional distress case against a divorce lawyer has been rejected by the 1st District Court of Appeal.

I hope the client’s attorney is correct that the theory is still a viable one, even though the facts here do

not support the claim. In my own practice (representing children and acting as a mediator), I have seen

divorce lawyers frequently press their clients to raise issues, or use tactics, in custody and visitation

disputes that serve only one purpose — increasing lawyer billing time — while they have only one sure

effect: causing great emotional distress for the children and both parents. A few cases

raising this issue successfully against divorce lawyers might be just the right cure.

5 Comments

  1. David, I could pontificate, or I could present compelling reasons for non-diclosure. The latter shows people their “enlightened” self-interest (re: show why doing the right thing is in that person’s best interest.) Since I’m in the persuasion business, I chose track 2.

    When I’m old and grouchy, I’ll tell people they should do the right thing for its own sake. Then I’ll bang my head against the wall when nobody listens.

    Comment by Mike — December 27, 2004 @ 2:31 pm

  2. Sorry, Mike, but your version of Blogger Ethics is neither persuasive nor edifying — and adds nothing insightful to the discussion (how much spiked egg nog did you imbibe while doing your deep thinking on this topic?).  Any system of ethics that is only explained or based upon the actor’s “self-interest” is far too narrow — especially when “self-interest” is defined basically to mean financial interests (as opposed to integrity, self-respect, or similar characteristics). 
    All my life (starting in high school, long before I got either old or particularly grumpy), I have prefered to stick my neck out and point out the emperor’s lack of clothing, to remaining mute in order to protect my behind. It has, in truth, caused me major aggravation and trepidation, but never the aggravation of losing my self-respect.  I’ve also preferred to promote integrity over income.  To me, true ethics (and professionalism) will often require self-sacrifice. 
    Please don’t denigrate the term “Ethics” by giving it a shallow, narrow meaning.  And, please don’t assume that every law professor is so shallow or thin-skinned that she or he can’t take constructive, diplomatic criticism.  [I got some of my very best references and job opportunities over the year's from the people I have criticized and grilled the most.]

    Comment by David Giacalone — December 27, 2004 @ 3:21 pm

  3. And, please don’t assume that every law professor is so shallow or thin-skinned that she or he can’t take constructive, diplomatic criticism.

    Aha. Perhaps a re-reading my post would be helpful. There I wrote: “Unless you’re critically analyzing something a professor has said in public, nothing is probably the best thing to blog about.” You should also note that the reasons I gave for being quiet were in furtherance of a virtue. I wrote: “The best lawyers keep secrets and speak only when it serves a strategy: They are close-mouthed.” In other words, it is virtuous to keep secrets. Practice this virtue (as Aristotle suggested) early on. If you can’t tell the difference between critically analyzing legal statements a professor made, and things a professor said that he intended to be kept quiet, then you need to spend some time with Aristotle.

    I’m wondering…do you not keep secrets? If I share something personal to you, as you going to put it on your blog?

    Do you have friends? If so, are you one of the three ways people learn things: telephone; telefax; tell-a-David?

    Comment by Mike — December 27, 2004 @ 5:21 pm

  4. Do law students need a lot of guidance on this topic?

    Yes – sadly. We come from different generations, David. Finding someone my age who can keep a secret is very difficult.

    My post addressed a narrow issue. Prof. Rosen, in his NYT Magazine article suggested that law school conversations are a blog free zone. I suggested otherwise, and I laid down a few things law students should consider before blogging. Again, I’m not sure what’s shallow about my post. Maybe it’s cynical to think that most people don’t act unless it’s in their self-interest.

    I also wrote that “Moreover, the student who talks about his professors is unlikely to develop a close relationship with any professor.” I think that “talks about his professors” would lead a reasonable reader to conclude that this means gossiping. A lot of students talk how their professors teach, what they wear, whom they date, etc. That’s all garbage and should be avoided. But it’s the topic at many law student blogs.

    <me>By your own words, the lawyer keeps a secret unless “it serves a strategy.”

    Nope. You’re being an advocate rather than a truth-seeker by selectively quoting from my post. I said that the best lawyers say nothing unless it serves a tactical purpose. (Secrets are never revealed).

    Let’s try a little harder to say something that would actually help the inquirers do the right thing.

    Well, the post was not written for you, Orin Kerr, Ken Lammers, Evan Schaeffer, Tung Yin, or the numerous other people whose discretion can’t be questioned. It was addressed for a group (which is a lot larger than you might think) whose first inclination is to blog about the juice.

    Comment by Mike — December 27, 2004 @ 7:04 pm

  5. Well, Michael, I was thinking we were getting too adversarial, so I’m glad you’ve brought the conversation around to something upon which we both agree:  (As I have stated over at Evan Schaeffer’s Underground and elsewhere,) the content of most law student weblogs has more in common with the archetypal 13-year-old blogger than with adult weblawgers.  If one is looking for material that might sustain the interest of thinking adults — professionally, intellectually, politically, socially, or as entertainment and leisure fare — the law student weblogs that might be worth a visit are relatively few. 
    Please don’t go around thinking that I am unaware of the ethical obtuseness and lack of responsibility, maturity, and insight of your generation (regardless of IQ, the general EQ is staggeringly low).  [Prof. Yabut talked about such things in the post the ethics of the Whatever Generations.]  However, I can’t believe that Profs. Kerr and Froomkin, Will Baude, Evan Schaeffer and others took up this topic simply to remind remarkably immature, self-absorbed young adults that gossiping is not nice, that revealing secrets is generally bad, and that there is little anonymity in the blogosphere (so, blogged words can come back to bite ya).  Whatever such advice might be called (and “ethics” seems way too grand), it is difficult to believe (1) that it took a lot of thought to reach those conclusions, and (2) that the resulting pooled wisdom of “blogging ethics” is deep, rather than shallow.
    If you asked every law student weblawger, he or she [and, I must say that I'm assuming that most of the worst offenders are male] would tell you they already knew all of the important concepts stated in the last paragraph and in your posting.  The reality is they just don’t care because, like adolescents, they believe they are invincible, invisible, or at the least immune from all consequences.   They do not need a simple “don’t reveal secrets and don’t gossip, or else.”   I agree that they need a lot of guidance about dealing with confidences and about socially appropriate subject matter; but, you have provided them with very little. 
    I’m not going to go point by point with you about who’s is or is not taking your words out of context or failing to see the entire context (but, I’m pretty sure we disagree).  My bottom line:  Your distilled message gives little or no useful guidance, even if we assume the audience is ethically and intellectuall challenged ["Just Say Nothing" is the equivalent of preaching "Just Say No" to drugs or sex -- it might work for part of the choir, but it won't make any converts.].  As my original blurb says:

    Any law student weblogger who doesn’t realize he or she needs to be circumpect
    with what is said on a weblog (whether anonymous or not) doesn’t have the common
    sense needed to be a lawyer.

    In a way, Micahel, you are a victim of your reputation and prior work – seeing that you claimed to have something to say (in more than one post) on “Blogging Ethics,” I was expecting your usual insight and went away disappointed.   I’m not going to lower my expectations, but I will lower my voice, because I want the two of us in communication and listenting to each other.

    Comment by David Giacalone — December 28, 2004 @ 12:02 am

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