… dagosan

Notice: After almost 6 years, 2500 postings, and a million visits,  f/k/a stopped publishing new material (and accepting new Comments) as of March 1, 2009.  The content is all still here in our archives, of course, so please browse to find unique and wide-ranging punditry, much of which deals with the foibles of lawyers and the rights of their clients, plus thousands of quality haiku by a couple dozen fine poets.  See our About page, to learn about f/k/a’s history, philosophy, honors, etc., and our Prof. Yabut’s Favorites Page for the closest thing we have to a Greatest Hits List.

Broken Link Warning:  Due to an involuntary webserver change in the Spring of 2009, some of our links to internal f/k/a material no longer work.  We regret this inconvenience.  However, all of our content still exists, and you should be able to locate the desired post by doing a Google Search of f/k/a [put a space and then your search terms after our URL in the Google search box].

….. david giacalone – Editor/Proprietor

Archive of Ages? This is the last new post that will appear at this web address.  As of March 1, 2009, f/k/a will be in “archival status,” existing only in its archives, with posts dating back to May 2003.

• Don’t miss our artsy goodbye, “a few farewell haiga” (photos with linked poems)
• . . . nor our personal thank you’s in “just getting to know you” and “all that great haikai“

• By the way: no one was willing to go through 2,472 posts to try to choose f/k/a’s Greatest Hits, so you’ll have to make do with our Prof. Yabut’s Favorites Page.  Go to the Honored Guest Poet Index for links to the individual archive of each of our haiku poets.  Clicking ethicalEsq’s Resources will bring you to our portal for legal ethics commentary (including extensive commentary on lawyer fees).  See “Our Resources” and “Categories” in the Sidebar for more topics.

As I type right now, there are fewer than 12 minutes until my self-imposed midnight shutdown deadline.  So, you’re in luck: There’s no time for a long-winded farewell apologia, nor even an attempt to answer Darren Rowse’s recent question: “If your blog died today, what would it be remembered for?”  Sad to say, however, the f/k/a Gang — your Editor and his various alter egos — have apparently learned little since we tried to quit this weblog in October 2003.  Our sentiments then ring just as true today.  Because we still haven’t learned how to pace ourselves, we’re going cold turkey on intense daily blogging, to free up time and energy for creating a more joyful, satisfying and meaningful journey.

• If interested, you can still find my new poetic offerings at “dagosan’s haiku diary“ and “simply senryu” (which should get a lot more attention in my post-f/k/a era), and published works here.

A parting note:  It’s been great to be able to opine on subjects as diverse as the Graying of the Bar, the meaning of “goomba,” and the importance of pink flamingos and Wendy Savage, while cultivating my artistic side, and bringing the joys of genuine haiku to a wider audience.  Many thanks to all who have made f/k/a their regular stop for one-breath poetry and/or breathless punditry, and to the generous and talented poets who let me share their haiku.  If I find a new online project or job, I’ll get the word out to my blawging and haijin friends.

One year ago today, I took this picture at the end of the block where the f/k/a Gang lives.  We hope to see a lot more of the Mohawk River from now on.

ides of March
floodwaters where
the snowman stood

… by David Giacalone

fireworks finale!
her eyes return
to the fireflies

… by David Giacalone – Simply Haiku, Autumn 2007, vol 5 no 3 -

afterwords: If you’re missing our photography, check out “suns along the Mohawk,” which features my photos from along the Mohawk River and around the Schenectady Stockade.

Doing ethicalEsq f/k/a has been a very rewarding experience, whether the correspondents agreed with me or not.  Until I started a web journal, [my f/k/a Gang of alter egos] thought the internet might be used to sustain established friendships and relationships (mostly with email), but couldn’t possibly create new ones of any significant value.  Well, I was wrong.

Comments and e-correspondence sparked by this website have put me in touch with some very good [talented and interesting] human beings, who can scarcely be blamed for being lawyers [or haiku poets].   Although they’re a lot busier than I am, I hope to continue to connect with them across cyberspace.

At the end of this posting, I’ve listed (alphabetically fairly randomly) a number of the web-log related folks who have become more than just pixelated names to me, due to the quality and/or quantity of their communications, insights, inspiration, or assistance.

sweet grapes
the conversation passes
between friends

… by Hilary Tann – The Heron’s Nest VIII:1

Far more often than I could have imagined 6 years ago, this weblog has sparked real conversations — the kind that nurture real friendships.   Before I list the names of people across the blogisphere who have been the most generous to me and this weblog, I want to share some haiku and senryu about conversations. 

The poems are written by poets who I only knew as highly-respected members of the haijin community when I approached them a few years ago (to ask if I could use their poems at f/k/a).  But, each has become a good friend, who will surely remain at the center of my emotional/social life for decades to come.

April shower –
making small talk
under the awning

video chat –
touching the gap
in her baby teeth

…. by Yu Chang
“April shower” – Upstate Dim Sum (2004/II)
“video chat” – Shiki Haikusphere 10th Anniversary Anthology (2007)

talking divorce
he pours his coffee
then mine

talking in bed
I forget his name…
second husband

talk of war
the spin cycle’s
steady hum

blackout–
my son speaks a secret
i always knew

……………………….. by Roberta Beary
“talking divorce” – The Unworn Necklace (2007)
“talking in bed” – Shamrock Haiku Journal (Issue 5, 2008)

Father’s Day
she tells me
I’m not the father

in the pollen
on my car
her signature

on the beach
the tracks of two
lounge chairs

dining alone
I rehearse
a conversation

… by John Stevenson
“Christmas Day” - Some of the Silence (Red Moon Press,1999)
“in the pollen” & “on the beach” & “dining alone” – Quiet Enough (Red Moon Press, 2004)

after the argument
restringing
the antique marionette

dim sum
we share
fish stories

morning rain
i apologize for something
i said in my sleep

small talk
at the end of a long day
fireflies

… by Ed Markowski
“after the argument” – mayfly spring 02

her words sting –
the mosquitos take me
just as I am

it’s pink! it’s purple!
sunset inspires
more bickering

silently
she lures me to the kitchen
peeled tangerine

…. by David Giacalone
“her words sting” – Frogpond, XXIX: 3 Fall 2006
“it’s pink!” – - Frogpond Vol. XXVIII, #2 (2005); haiga photo: A.J. Giacalone
“silently” – Walking the Same Path (HSA, 2004 Members’ Anthology

With our midnight deadline looming (and a real farewell post still “in the typewriter”), I want to quickly list the people who have made more than a passing impression on me, through their interactions around this weblog — from lots of “link love” and inspriation at their own blawgs, to thoughtful comments or consistent silent cyber-visits, to direct email communications, occasional phone calls, and even lunch dates in the “real” world.  Sincere thanks and best wishes to each of you.

In the “blawgisphere: Anne Reed at Deliberations; Anne Skove at Court-o-rama; Laura Orr at Oregon Legal Research; Scott Greenfield at Simple Justice;  Carolyn Elefant at My Shingle; Bob Ambrogi at Legal Blog Watch; the infamous and incomparable “Ed Post” at Blawg Review; Diane Levin at Mediation Channel; Walter Olson at Overlawyered.com; Elie Mystal at Above the Law;  Stephanie West Allen at IdeaLawg;  Gideon at A Public Defender; Eric Turkewitz at New York P/I Lawyer; Dan Hull at What About Clients; Alan Childress at the Legal Profession Blog; Marco Randazza at The Legal Satyricon

On the haiku side of the cyberspace: Matt Morden at Morden Haiku; Don Wentworth of Issa’s Tidy Hut; Curtis Dunlap at Tobacco Road Poet;

plus haijin frequent visitors: George Swede; Charlie Trumball; Ed Markowski; Roberta Beary; Collin Barber; John Stevenson; Carolyn Hall; Laryalee Fraser; & Yu Chang

Shout-outs to: Don Hutcheson at The Complete Lawyer; Tim Kevan at Barrister Blog, the bi-bloggy George M. Wallace; Greg Beck at Consumer Law & Policy Blog; Jo-Ann Schrom at RotterdamNY.info; Rev. David Hess; James R. Elkins of the Legal Studies Forum; Bob Eckstein of Today’s Snowman

]]> http://blogs.law.harvard.edu/ethicalesq/2009/02/28/just-getting-to-know-you/feed/ 3 http://blogs.law.harvard.edu/ethicalesq/2009/02/28/probably-not-our-last-slippery-slope/ http://blogs.law.harvard.edu/ethicalesq/2009/02/28/probably-not-our-last-slippery-slope/#comments Sat, 28 Feb 2009 09:15:57 +0000 David Giacalone http://blogs.law.harvard.edu/ethicalesq/?p=10666 reprise: “ethicalEsq’s first slippery slope” (posted Dec. 23, 2003)

giacalone giacalone & giacalone, Christmas 1950 (photo by Mama G.)

moving day
dust bunnies and shadows
left behind

…. by dagosan

What a strange coincidence: Just as I was announcing that this would be the last week of production for f/k/a, my friend “Ed Post” was putting together this week’s version of Blawg Review — #200!! — which opens with a link to Darren Rowse’s ProBlogger post, “If your blog died today . . . what would it be remembered for?“.  Happily, the 200th milestone for Blawg Review is not its last edition.  As its anonymous Editor puts it:

“Not to worry; we’ve come to praise Blawg Review, not to bury it. This moot funeral is not a morbid affair, but a celebration of everything good about Blawg Review.”

Like every issue of Blawg Review, this week’s puts the spotlight on the best material posted during the prior week at law-related weblogs.  As part of the 200th-edition celebration, Ed has structured this issue around an apt Traveling Wilburys metaphor — a musical group composed of rock-n-roll superstars whose collaboration magically “was greater than the sum of its parts.”

One of my favorite poems posted here at f/k/a is this senryu by lawyer-poet Barry George:

his quiet funeral—
a man who did
most of the talking

………………. by barry george

The faux funeral of “Ed Post” and his Blawg Review inspired dagosan to pen a new version this morning:

his noisy wake –
the man who let others
do most of the talking

…. by dagosan

Blawg Review, which is to say Ed and many of his hosts, has always been bery-bery good to this weblog — from giving us the Blawg Review “Creative Law Blog Award” in 2005 [see "thanks a lot (for all this pressure)," Dec. 27, 2005], to including f/k/a in Ed’s “Simply the Best” Top Ten Blawg lists [see our post, October 5, 2007], letting us host Blawg Review #52 (April 11, 2006), and mentioning our work often in the weekly Review.   Behind the scenes, Ed has also often acted as our long-distance proofreader extraordinaire (saving the Gang from many embarrassments), and as cheerleader and moral support when stress and fatigue and Weltschmerz made me want to throw in the towel.

Ed’s two stops in Schenectady to visit this cranky blawger — memorialized here and there — were testaments to the ability of the blawgiverse to create and nurture more than virtual friendships.

So, congratulations, Ed, for creating an enduring, high-quality blog carnival.  And, heartfelt thanks for all you’ve done to create and celebrate the blawger community, and done for this little weblog and its humbled Editor.

bookie’s funeral
the undertaker pays
his debt

…. by ed markowski

As usual, Ed has also reminded me that I have a lot work to do this week — crafting an auto-obituary and apologia for this weblog.   Because we tried to close down this little project once before, after only 19 weeks in busines, I guess the second (and last) time should go a little more smoothly.  See “exitedEsq: going dormant (gonna miss ya)” (October 11, 2003)  Re-reading that post, I see there were a lot of lessons I never learned and a lot of mistakes repeated since our premature death notice.

On the other hand, we got such nice obits from other bloggers (back before Denise had even coined the word “blawg”), it’s a wonder we ever started back up.  Living up to our death press was quite daunting.  See, e.g., this humble-making post by law-blog supertar Ernie Svenson, a/k/a Ernie the Attorney, “Requiem for a Heavyweight – ethicalEsq? is shutting down” (Oct. 12, 2003).   Actually, the blog-obituaries were so generous, it’s a wonder I haven’t sought even more long before now.

update: And, it’s happening again — nice words inspired by our leaving town. See Scott Greenfield’s “Phoenix Rising” (Feb. 24, 2009).

Wait, I’m supposed to be concentrating on lawyer fees this week.   I am so easy to distract.

Let’s close with a few topical poems written by lawyer-poets:

funeral dirge –
we bury the one
who could carry a tune

…. by David Giacalone – Frogpond, Vol. 31:2 (Spring/Summer 2008)
repub. “white lies: Red Moon Anthology 2008”

after the funeral
the seeds she ordered
in today’s mail

funeral over
the deadbolt
slides into place

his death notice. . .
the get-well card
still in my briefcase

… by Roberta Beary
“funeral over” – from the haibun “Stranger Danger” – Frogpond XXVIII:2 (2005)
“after” – Shiki Haikusphere 10th Anniversary Anthology (2007)
“his death notice” – New Resonance 2

“As easily imagined and as was already noted by the Legislature, these ‘not in  my backyard’ local residency restrictions create great difficulties for the Division of Parole, local probation and social service agencies to locate appropriate housing for sex offenders.”

The Times Union notes:

“The conflicting decisions from the same court could send mixed messages to city police.

“Attorney Terence Kindlon, whose firm is suing the county pro bono, said he believes it would be ‘more intelligent than not to refrain from prosecuting these cases’.”

” . . . Detective James Miller, a spokesman for the Albany Department of Public Safety, said officers in the city will keep making arrests.

As the Times Union Politics Blog noted yesterday evening, “Amid all this, state Supreme Court Justice Roger McDonough is still considering a constitutional challenge to county law nearly identical to the one made in Rockland.”  Justice McDonough has a summary judgment motion before him in the suit mentioned above brought by Terence Kindlon.

It’s clear that we need statewide action on sex offenders.  However, we also need politicians who will have the courage to oppose counterproductive and ineffective residency bans — like the fear-mongering S.01300, proposed by Senate Majority Leader Malcolm A. Smith — that prevent whole classes of sex offenders from living in most populated areas, rather than allowing professionals to locate housing most appropriate for each individual sex offender.  See our prior post “don’t let a bad idea go statewide” (Feb. 2, 2009).  If courage is lacking, perhaps politically-motivated leaders from rural areas of the state will rise up against S.01300, which will force many sex offenders to live in less-populated areas.

p.s. See the informative Wall Street Journal article “After Prison, Few Places for Sex Offenders to Live: Georgia’s Rules That Keep Some Convicted Felons Far From Children Create Challenges for Compliance, Enforcement” (Feb. 19, 2009; via Corey Yung)

Need a more inspiring subject to head you toward the weekend?  How about more haiku from the latest issue of Frogpond [Vol. 32:1 (Winter 2009)], written by our Honored Guest Poets?

windowless classroom
we talk about thinking
outside the box

Appalachian spring
can I still learn
to play the violin

…. by Yu Chang – Frogpond Vol. 32:1 (Winter 2009)

lovers still
a falling petal
catches moonlight

fern fronds
tightly coiled–
the fetus kicks

…. by Peggy Willis Lyles – Frogpond Vol. 32:1 (Winter 2009)

she would have
polished the silver
Mom’s memorial

dogwood blossoms
Mom’s ashes
lighter than expected

…. by Carolyn Hall – Frogpond Vol. 32:1 (Winter 2009)

late August
eel grass
breaks the surface

…. by Hilary Tann – Frogpond Vol. 32:1 (Winter 2009)

My plan to start spending a lot less time weblogging has run smack up against the intriguing coincidence of today’s joint birth bicentennial for Abraham Lincoln and Charles Darwin.  Some commentators think it’s too much of a stretch trying to link the two great men based merely on their birth date.  As with the use of juxtaposition in good haiku, however, I’ve found the comparison — including contrasts, similarities, and differences –  to be an interesting and illuminating way to recall what each man has meant to their own times and to ours, and to look at both men in new ways.

There have been two recent books focusing on Darwin and Lincoln together, as unique human beings and towering historical figures:

• “Rebel Giants: The Revolutionary Lives of Abraham Lincoln & Charles Darwin”
  by David R. Contosta (Prometheus Books, 2008)

• “Angels and Ages: A Short Book About Darwin, Lincoln, and Modern Life” by Adam Gopnik (Knopf, 2009)

If you’re too busy Twittering, actually working, or merely napping, to find and read either or both of them, I’d suggest making the time for two articles that do a good job with the task of comparing Lincoln and Darwin:

“Who Was More Important: Lincoln or Darwin?” by Malcolm Jones (Newsweek, July 7, 2009)

Illustration: Bryan Christie Design; photos: Corbis … ..

.. “How Lincoln and Darwin Shaped the Modern World” by Adam Gopnik (Smithsonian Magazine, February 2009; illustration by Joe Ciardiello)

Also see the first 16 minutes of Gopnik on Charlie Rose (Feb. 4, 2009; the remainder of the interview is an Appreciation of John Updike)

Lincoln and Darwin are both known for ideas (emancipation and evolution, respectively) that threatened powerful vested interests and deep-held beliefs.  The books and articles mentioned above describe the importance of their theories — and the importance of the personal characteristics and social environment of each man in shaping their life’s work.   I’m going to focus here on another important similarity.  As Adam Gopnik says:

“Darwin and Lincoln helped remake our language and forge a new kind of rhetoric that we still respond to in politics and popular science alike. They particularized in everything, and their general vision rises from the details and the nuance, their big ideas from small sightings. They shared logic as a form of eloquence, argument as a style of virtue, close reasoning as a form of uplift. Each, using a kind of technical language—the fine, detailed language of naturalist science for Darwin; the tedious language of legal reasoning for the American—arrived at a new ideal of liberal speech.”

In Newsweek, Malcolm Jones wrote:

“Lincoln united the North behind him with an eloquence so timeless that his words remain fresh no matter how many times you read them. Darwin wrote one of the few scientific treatises, maybe the only one, worth reading as a work of literature. Both of them demand to be read in the original, not in paraphrase, because both men are so much in their prose. To read them is to know these elusive figures a little better. Given their influence on our lives, these are men you want to know.”

” . . . The quality of Darwin’s mind is in evidence everywhere in this book, but so is his character—generous, open-minded and always respectful of those who he knew would disagree with him, as you might expect of a man who was, after all, married to a creationist.”

“. . . Lincoln, no less than Mark Twain, forged what we think of today as the American style: forthright, rhythmic, muscular, beautiful but never pretty. As Douglas L. Wilson observes in “Lincoln’s Sword,” his brilliant analysis of the president’s writing, Lincoln was political, not literary, but he was, every bit as much as Melville or Thoreau, “perfecting a prose that expressed a uniquely American way of apprehending and ordering experience.” What Lincoln says and how he says it are one. You cannot imagine the Gettysburg Address or the Second Inaugural in words other than those in which they are conveyed.

In addition to the notion of their “beautiful but never pretty” writing style, Jones also describes characteristics of the two men that remind me very much of some of my favorite haiku poets:

” . . . Like Darwin, Lincoln was a compulsive scribbler, forever jotting down phrases, notes and ideas on scraps of paper, then squirreling the notes away in a coat pocket, a desk drawer—or sometimes his hat—where they would collect until he found a use for them in a letter, a speech or a document. He was also a compulsive reviser.”

Putting yourself in your writing; valuing logic and clear prose; paying attention to details and being open to new ways of looking at the world; and advocating strongly-held beliefs even when some of your closest kith and kin disagree:  these are all characteristics worth emulating, as we think of two famous men who were born two hundred years ago today.

p.s. If you’re interested, we’ve written quite a few times on Lawyer Lincoln.

Our time is up for blogging today.  We’ll leave you with the next installment in our project presenting poems from past issues of Modern Haiku written by poets who later became members of our f/k/a Honored Guest family.

Here are three from Modern Haiku Vol. XXVIII: 1 (Winter-Spring 1997), written by our haiku friend Tom Clausen.  We’ll delve further into XXVIII:1 over the next few days.

freed from the cat–
baby meadow lark
all speckles

all the panes broken–
in and out of the mill
pigeons fly

garage door open
at the funeral home—
nothing there

… by Tom Clausen – Modern Haiku Vol. XXVIII: 1

Valentine’s Day –
a new sign says
“Thin Ice”

… by dagosan

.. Valentine’s Day has often brought out the curmudgeonly side of the f/k/a Gang.  [see, e.g., our posts "not really in a Valentine mood" and "off-peak romance"]   This year, JC Penney’s declaration of Doghouse Prevention Week has turned the secretly-romantic Prof. Yabut into a growling cur, rather than a lapdog.  Penney’s wants men to know that “No Bad Gift Will Go Unpunished,” and its Beware of the Doghouse website allows sweethearts to send their guy a warning or even list him as being In the Doghouse.  Naturally, in addition to graphic examples of what happens in the doghouse, there are many (expensive) suggestions on how to avoid or get out of Casa Canine.

We are not impressed.  Instead, we repeat our contention from 2005 that “Cherries in the Snow” author Emma Forrest makes a very good point:

“Love is so delicate, you can’t afford to risk it on fake holiday.” (AP/Nashua Telegraph,  “British author had no need for Valentine’s Day rubbish,” Feb. 20, 2005)

All quips aside about stimulus (or stimulated) packages, our economic crisis seems like a perfect opportunity for Valentine lovers (and even spouses) to let each other know it’s the thought not the price tag that counts.  Indeed, in today’s Schenectady Gazette article “Economy tops love this year: Retailers expect recession to cut into Valentine’s Day spending” (February 11, 2009), we learn that “Low-cost items this Valentine’s are expected to have greater sway over lovers on the prowl for gifts.”  For example, folks are buying half-pound boxes of candy rather than the larger heart-shaped offerings at Krause’s in Colonie. [Sharing fewer calories has many other advantages of course, in a nation where waistlines and bottoms keep expanding, even when the economy shrinks.]

The Gazette also reports that “The National Retail Federation said American adults are expected to spend an average of $102.50 on Valentine’s gifts and merchandise, compared with $122.98 a year earlier.”  In addition,

“BISWorld Research, a Los Angeles market research firm, earlier this month projected holiday card sales to rise over the year by 1.1 percent and candy sales to increase 0.9 percent. But holiday apparel, dining out and jewelry are forecast to take the biggest hits, declining 6.7 percent, 6.1 percent and 5.1 percent, respectively.

More cards and fewer diamonds sounds like a good trend to us.   However, if you’re heading for the doghouse, we suggest you click to hear Hank Williams’ plaintive request that his good dog “Move It on Over” and let the bad dog squeeze in, too.

If you’d like to tell your beloved how you feel in more than one language, click here for “Valentine’s Day phrases in 8 languages.”

Now’s a great time to reprise Roberta Beary’s haibun from Modern Haiku (Vol. 39:1, Winter 2008):

What I Mean Is

everyone knows everything old people know only the good die young and kids know parents don’t know it all and teachers know students wait until the day before the project is due and you and i both know that love doesn’t conquer anything in fact it doesn’t even come close

as if it mattered
i pocket
a red leaf

………………………………… by Roberta Beary, Modern Haiku 39:1 (2008)

And a couple of senryu by Ed Markowski:

valentine’s day
we do nothing
different

valentine’s day
the sensous curves
of a snow drift

…………. by ed markowski

p.s. National Inventors’ Day (February 11): If the love of your life loves creativity and service to humanity, Prof. Yabut suggests you remind her (or him) that February 11th is both Thomas A. Edison’s birthday and National Inventors’ Day. (via Securing Innovation weblog, which has a familiarly-anonymous editor).  If you really want to impress her, bring her to the far-too-little-known Edison Exploratorium in downtown Schenectady.   The Exploratorium aims to “preserve, promote and celebrate the unique heritage of Edison and the pioneers who gave birth to the electric age here in ‘The Original Electric City’.”  You might get sent to the doghouse for giving her an electric iron, washing machine or microwave oven, but you’ll light up her eyes with exhibits filled with those and other items pioneered in Schenectady.

Can’t make it to Schenectady?  You can find dozens of YouTube clips from the Edison Exploratorium, including one featuring Charles P. Steinmetz, General Electric’s Chief Engineer and Scientist (1865 – 1923), who wanted to use inventions like the production and distribution of energy:

“to develop the most perfect civilization the world has ever seen.  The civilization not for a minority depending on the labor of masses of slaves or serfs but a real civilization of benefit to all the members of the human race.”

…. finally, our lonely-guy 2008 Valentine haiga (photo Mama G. 1951):

– and out of their town, too!

Paula Mahan is Town Supervisor in Colonie, NY, the most populous municipality in the New York Capital Region (nestled between Albany and Schenectady).  Supervisor Mahan has upped the sex offender NIMBY ante, and shown other politicians she won’t be outdone pandering to the public’s overblown fears of lurking strangers.  Saying her Town has become a dumping ground for predators from other jurisdictions, she has proposed a new law that would, according to an article tonight in the Albany Times Union:

” . . bar adult Level 2 and 3 sex offenders whose victims were younger than 17 from living or staying within 1,500 feet of each other, or the same distance from [15 kinds of] places where children congregate.”

……  …………….. 1500′ …………… …………………. 1500′……..

We’ve written often about the unnecessary, ineffective and un-American residency restrictions that communities have been placing on whole categories of sex offenders. See our recent post “don’t let a bad idea go statewide” (Feb. 2, 2009), which responds to a new, high-level proposal to have statewide 1000-foot no-residence zones for sex offenders, around schools, parks and day care centers.  The Colonie SOLD approach [sex offender low-density nuisance zoning] almost makes the laws in other communities look thoughtful — and is an interesting counterpoint to those who want to herd sex offenders into little cluster ghettos.   It clearly shows that Justice William Kelly was correct in Peo. v. Oberlander: Our State laws by necessity must pre-empt the additional efforts of localities, with their confusing, conflicting, and ever-escalating restrictions on where sex offenders can live (discussed in this post from Feb. 2, 2009).

According to the TU:

“But before having the Colonie Town Board vote on the new regulations, Supervisor Paula Mahan wants to assemble a task force to examine the issue and work off of her proposal.”

Stopping to think makes good sense.  However, Mahan’s task force sounds suspiciously like the tactics of Susan Savage, Legislative Chair in Schenectady County, who appointed a commission to study sex offender safety issues, but clearly wanted them to start with her own extreme position and then add more restrictions and regulations. (see our prior post)   Perhaps someone will suggest to Ms.Mahan that she read the Oberlander decision and check out proposals and solutions on the State level, before she convinces even the most conservative judges in the State that sex offender residency cannot be left to local politicians.

p.s. On the 6 o’clock news this evening, a reporter for WTEN in Albany said they checked out the state SO registry and 5 sex offenders were apparently living at one of the low-rent motels on Central Ave in Colonie.  Go here for information from the Colonie Police Department on how to find out where sex offenders live in that Town, using the State’s sex offender search index.

Motel Update (Aug. 7, 2009):  After considering various court cases declaring Sex Offender restrictions unlawful, Colonie gave up its original Low-Density Sex Offender proposal and came up with an even worse idea — restricting how many offenders can live at any one motel.  See “Colonie limits how many sex offenders can live in motels” (Albany Times Union, Aug. 7, 2009; and see CBS6Albany).  According to the TU, the law “will require hotels and motels that plan to house sex offenders to get a license” (costing $1500 or $3000) and then will use a point system to limit how many Sex Offenders may live at a particular motel (one to three points depending on the SO’s corresponding risk level designation, 1, 2 or 3).  Even the largest motels will be allowed only 9 points worth of offenders — e.g., three Level 3s or nine Level 1s, or combinations thereof.  It is hard to image that such a law could withstand the kind of state-preemption analysis that recently voided Albany County’s sex offender residency restrictions.

afterwords (Feb. 11, 2009): I woke up this morning thinking about ways enterprising persons could cash in on Colonie’s floating 1500-feet sex offender residency ban.   A landlord in an area that didn’t have “its SO” yet, could hold an auction (or raffle off) an apartment or motel unit, or simply demand a much higher rent, knowing that both offenders and Social Service employees would pay a big premium to secure a residence in an attractive neighborhood (or, more likely, any neighborhood).  Meanwhile, a sex offender leaving town might also earn a little travel money by selling off rights to (or information about) a prime location that was opening up.

…………………………… ……………………………. 1500′

update (Feb. 26, 2009): The town of East Rochester, NY, is only 1.3 miles long, but it has just passed a law banning sex offenders from living within 2,000 feet of schools, playgrounds and parks, recreation and community centers and day care facilities. (see this report from WHEC.com/Ch.6)

….. 2000′………… ……. 2000′ …

]]> http://blogs.law.harvard.edu/ethicalesq/2009/02/10/zanier-and-zanier-sex-offender-frenzy-in-colonie-ny/feed/ 1 http://blogs.law.harvard.edu/ethicalesq/2009/02/09/stein-and-hull-and-more-white-lies/ http://blogs.law.harvard.edu/ethicalesq/2009/02/09/stein-and-hull-and-more-white-lies/#comments Tue, 10 Feb 2009 01:54:25 +0000 David Giacalone http://blogs.law.harvard.edu/ethicalesq/?p=10580

. . We didn’t “phone this one in,” but we woulda if we coulda.

frigid night
the radiator wakes me,
lulls me to sleep

… by dagosan

.. How would you have answered Jacob A. Stein’s headline question in his newest Legal Spectator column, “Did You Read the Latest Opinion of the Supreme Court?” (Washington Lawyer, February 2009).  The sage columnist lists 37 possible answers, but you should feel free to add 38.  Other ______________ .

To give you a taste, here’s a dozen replies offered by Stein. (The f/k/a Gang are leaning toward #17.)

1.  I read about it in Linda Greenhouse’s story in The New York Times.

4. I read the headnotes, or was it the syllabus?
5. I read about it in the newsletter we send to clients.

7. Let’s just say I flipped through it.
8. I liked that strong language in the dissent.

11. Is it filled with original intent?

17.  I usually take it to bed with me. It must be under the covers.
18. Congress will take care of it, just you wait and see.
19. Was it another punitive damages case, or was it the gun case?

30. Why don’t they televise the arguments?

36.  How much of these opinions do the clerks write?
37.  I am going into the hospital for some minor surgery, and I will read it there.

……. What about Dan Hull? Forget the disparaging remarks of Ron Baker, Kevin O’Keefe and Enrico Schaefer, what am I ever going to do about JD Hull.  Over at his What About Clients? weblog, Dan insists on saying really nice things about me — or, at least about someone named David Giacalone at f/k/a who bears little or no resemblance to your cranky Editor.  For recent examples, see here (”the blawgosphere’s spiritual leader David Giacalone . . . is the only sensitive guy we ever liked even a little bit”) and there (”spiritual leader and technical adviser in one person . . . Keep reading him”).  When I leave comments asking for retractions, Dan forgets to post them.  So, let’s get a few of things straight:

• if you come here for either spiritual or technical advcse, you need a Plan B
• we’re trying to keep a low profile these days, and our pundit necks are more likely to be in our shells than stuck out very far trying to make waves, pass judgments, or garner links
• we’ve been unsuccessfully striving for haiku- and zen-like humility at f/k/a for almost six years;  Hull’s hallelujahs are not helping
• we know Dan is not merely fishing for mutual compliments, ’cause he’s got one of the most-praised weblogs in the entire blawgiverse (see the left-SideBar on his WAC home page); so, we’re starting to get paranoid about hidden agendas and anxious about living up to Dan’s high expectations.  Humbled and honored.  But, mostly humbled.

Despite the above lapse in judgment, Dan seems to be on the mark with his list of “The Big Six must-reading lawyer sites” for quickly and efficiently getting “all the news–and new ideas” from lawyer weblogs.  He also does a very good job there limning the legal profession’s young Slackoiesie.

spring thunder
dust from a slap
on the horse’s rump

… by w.f. owen – white lies: RMA 2008
orig pub. Mainichi Daily News #706

Fibs and White Lies:  Dan Hull’s praise quite naturally reminds us to continue to bring you selections from “white lies: Red Moon Anthology 2008” (by Jim Kacian and the Red Moon Press Editorial Staff, January 2009; see our prior post).  “white lies” contains some of the very best haiku-related poetry published in 2008, and our Honored Guest poets are, as always, well-represented.

checkout line
my dad
could talk to anyone

writers’ conference–
from a toilet stall I hear
someone quoting me

……….. by John Stevenson – white lies: RMA 2008
“checkout line” – Upstate Dim Sum 2008/I
“writers’ conference” – Modern Haiku 39:1

a cushion of pine needles
I recall my past
as pleasant

…. by George Swede – white lies: RMA 2008
orig. pub. Acorn 21

between flights
I summarize my life
for a stranger

…. by Hilary Tann – white lies: RMA 2008
orig. pub. Upstate Dim Sum 2008/II

..  .. Moving Day for Kaz: Looking a lot less jaunty than he did for his plea hearing last December (see our prior post for details), former Schenectady police chief Greg Kaczmarek was sentenced yesterday to two years in State prison for drug possession.  See “Former Schenectady police chief heads to prison” (Schenectady Gazette, Feb. 3, 2009); “Two years for ex-chief” (Albany Times Union, Feb. 3, 2009).  At the sentencing, both prosecutor Michael Sharpe, of the state Attorney General’s Office, and Judge Karen Drago felt they needed to respond to complaints in the community and from Kaz’s co-conspirators that he got off easy, and that Kaz only pled to keep his wife out of prison (she got 6 months in the County jail).

According to the Gazette, prosecutor Sharpe told the court that Greg Kaczmarek had the opportunity to spare his wife at least some jail time last summer, but he chose not to.  Sharpe also make it clear that there was plenty of evidence that Kaz bought drugs, using some and selling some to others. The Gazette also states that:

“Both Sharpe and Drago attempted in court to respond to rampant criticism of the Kaczmareks’ sentences. The Kaczmareks were among two dozen indicted as players in the drug organization headed by Kirkem and Oscar Mora. . . .

” . . . The attorney for one of the accused organization managers last week even filed a formal motion comparing his client’s involvement with Lisa Kaczmarek’s. Brian Toal, attorney for co-defendant Hazel Nader, argued that the Kaczmareks got unfairly lighter sentences, calling them ‘embarrassing’.”

The prosecutor and the judge agreed that the Kaczmareks were at the lower levels of the organization.  Sharpe noted that Kaz had used his law enforcement knowledge (gained from 27 years in law enforcement, six of those as Schenectady’s police chief) to advise the ringleader on avoiding the police.  The Gazette reports that Sharpe told the court:

“[T]hat allegation, and Greg Kaczmarek’s law enforcement background, warranted his two years in prison, over his wife’s six months. Greg Kaczmarek spent

However, Judge Drago disagreed about the significance of Kaz’s police background.

“While it is enormously disappointing that an individual who held a position of such esteem stands before the court convicted of a drug offense, the position as former chief of police in and of itself does not warrant a harsher sentence,” Drago said.

[Note: Your Editor leans toward giving harsher sentences to people who violate laws they used to enforce.]

Drago also said that the case is an example of how “drug addiction crosses all walks of life and how anyone can succumb to this.”

According to the Times Union,  Lisa Kaczmarek’s lawyer, Kevin Luibrand, called her behavior “aberrational.”  We’re pretty sure a fancy New York City criminal lawyer like Scott Greenfield would have used an actual word, perhaps “aberant.”

..  Sex Offender Law Web-cast:  If you hurry, you can still catch a live webcast that begins today, Feb. 3, at 10:45 AM EST, and is sponsored by the Editorial board of the Lower Hudson Journal.  It features Sarah Tofte, author of the 146-page Human Rights Watch Report “No Easy Answers: Sex offender Laws in the United Sates” (September 2007).  The forum (which will also be available for viewing after the event) should be an excellent follow-up to yesterday’s LoHud.com op/ed piece, “How far can  – or should – communities go to restrict sex offenders?” (LOHud.com, by Nancy Cutler, Feb. 2, 2009).  It asks:

What should communities do to protect children from convicted sex offenders? What strategies work and which ones don’t?

If you missed it, you could prepare for the Webcast (or otherwise bone-up on issues relevant to restricting where sex offenders can live) by reading yesterday’s f/k/a post “don’t let a bad idea go statewide” (Feb. 2, 2009).

.. .. The Turk’s Crystal Ball:  Eric Turkewitz wrote yesterday about “The Future of the Legal Blogosphere” (Feb. 2, 2009) at his New York Personal Injury Law weblog.  Eric says: “Having now trashed Twitter (Twitter and The Age of Information Overload) before using it and semi-trashed it again after using it (Twitter: A Review), and having concluded it is not the future, the question remains: What is the future of the legal blogosphere?”  Turk argues that the future will look like a combination of Listservs, a group weblog for and by lawyers and a social networking site.  More specifically:

1. “First, what is missing from the legal blogosphere is a group blog for practicing lawyers. While Volokh or Co-Op are possible as templates for group blogs, I see something more akin to the splashier Huffington Post, except that it would be written by and for lawyers.”
2. “Now mix in the social element, whether this is for swapping tips and links or engaging in political discussion away from one’s own practice area. It happens to some extent in comment areas, but this is limited. It also is happening in Twitter, but the format is anything but ideal. . . . .  A well-located and well-designed legal forum can be significantly superior to it.”

As an example of a model, Eric goes on to point to “Well designed discussion boards such as those operated by The Motley Fool financial site,” which could also incorporate profiles for those interested in social networking.  He then that such a site would “also have a reader base with some of the best advertising demographics in the nation. Advertising (cars, booze, travel, etc) would be an easy sell relative to other sites, as would law firm sponsorships.”  And,

“Thus, a savvy entrepreneur will one day blend the desires for blogging and the desires for a legal-social element into one web location, in an easy-to-use site.”

Eric is right.  Such a project needs to have content with substance and style, and it needs to offer value that exceeds the time spent perusing and using the site.  Turk predicts it will happen and brags that “you heard it first” at his weblog.  He forgot to say that Prof. Yabut and the entire f/k/a Gang would love to come out of retirement to put such a project together (and maybe show the Twittrepreneurs that we’re much more like phoenixes and eagles than pterodactyls ’round here).

.. White Lies? Well, only a little and temporary one.  As the day progresses, I’ll be adding poems by the f/k/a family of haiku poets from white lies: the Red Moon Anthology of English Language Haiku 2008 (see our prior post).   “white lies” contains some of the very best haiku-related poetry published in 2008. E.g., this trio from Tom Painting:

fall planting
the way my father
set them straight

peace vigil
one candle
lights them all

year’s end
the weight of the pennies
in the mason jar

…. by Tom Painting – white lies: Red Moon Anthology 2008
“fall planting” – Bottle Rockets 18
“peace vigil” – A Bomb Contest 2008
“year’s end” – Modern Haiku 39:2

spring at last 
letting the stallion out
into the pasture

razor wire
soldiers in the alley
tossing dice

… by Randy M. Brooks – white lies: Red Moon Anthology 2008
“spring at last” - acorn 20; “razor wire” – dandelion clocks (HSA 2008)

storm forecast__
the living room
in order

….. by Tom Clausen – white lies: RMA 2008
orig. pub. Wisteria 8

cherry blossom rain . . .
I take the convertible
back to the showroom

all the answers
in the back of the book–
summer solstice

a new light
on the dashboard
evening rain

…… by Alice Frampton – white lies: RMA 2008
“cherry blossom rain . . . ” – Vancouver Cherry Blossom Festival
“all the answers” – The Heron’s Nest X:3
“a new light” -  The Heron’s Nest X:2

behind our backs –
the sounds the ocean
covers up

…………………… by Gary Hotham -
orig. pub. The Heron’s Nest X:3

• “the Holidays aren’t even a dim memory any more”
• “no, I haven’t had time to get those Christmas cards written”
• “the Inauguration seems likes months ago”
• “Chinese New Year snuck up on me again”

• “I thought that two-hour concert would never end”
• “those 60 minutes on ‘24‘ zoom by much too quickly”
• “weren’t you supposed to fill out those W-2’s this week?”
• “it can’t possibly be February already?”

Speaking of time and its mysteries, Eric Turkewitz wrote this week about trying to use his time more wisely by avoiding “Twitter and the Age of Information Overload” (Jan. 25, 2009) Unlike our foray into the topic of Twitter, Eric has been able to voice his skepticism without being called a naive dinosaur, or worse, as has Scott Greenfield at Simple Justice.

On a related note, I clearly thought of Twitter and Info-Source-Glut when I saw the Trailer from “He’s just Not That Into You”. At 2:12 of the Trailer, Drew Barrymore’s character says:

“I had this guy leave me a voice mail at work, so I called him at home, and then he emailed me to my Blackberry, and so I text it to his cell, and now you have to go around checking all these different portals just to get rejected by seven different technologies. It’s exhausting.”

Before January deserts us, here are a few poems from

Snapshot Press Haiku Calendar 2009 .. ..

Colonel Mustard
in the library . . .
winter night

… by John Stevenson (winner, January)

oyster shells
a boy asks where
the wave began

…. by Peggy Willis Lyles (Hon. Men., January)

white wind the eyes of the dead seal missing

… by Carolyn Hall (winner. February)

ice floes
coming and going
the ides of March

… by David Giacalone (Hon. Men., March)

spring break –
the pale legs
of the motel spider

… by Roberta Beary (Hon. Men., April)

“He apparently froze to death because of a crime he committed nearly 20 years ago, and a niggling law that’s dogged him ever since his release from prison.

“In the days prior to the discovery of his body Monday morning at a recycling operation in the 600 block of South Division Avenue, he reportedly attempted to score a bed at either or both the Guiding Light Mission and Mel Trotter Ministries, just blocks away.

“But officials at both facilities reluctantly acknowledge they would have turned him away because registered sex offenders can’t reside for even one night within 1,000 feet of a school, in this case, Catholic Central High.”

Workers at both shelters noted that “their missions risk fines and loss of license if they admit sex offenders.”  We’ve complained often about the Scarlet Letter that our society has been branding on sex offenders.  Because they are treated as less-than-human bogeymen, politicians pander to unrealistic fears of sex offenders with restrictions that are unlikely to increase the safety of our children (and many experts argue will make matters worse) — and, they draft laws without including exceptions otherwise demanded by common sense and common decency.  I’d like to think that Thomas Pauli’s unnecessary death will help bring a touch of humanity and logic to the discussion of sex offender residency restrictions, but I am afraid that Rademacher is right when he says:

“I’ll bet that even before readers got to my fourth paragraph, some were thinking that Thomas Pierrie Pauli, who was born on Christmas Eve 52 years ago, got what he deserved. OK, so he spent time [11 yeras] in the joint. Big whup. A sex offender should pay forever.”

Given such consistent voices of fear, will the voices of compassion and reason be loud and long enough to affect needed changes?

.. .. Test-taking “Burgler” — Love or Money? Deandre Ellis was arrested for burglary yesterday here in Schenectady, for taking a New York State Regents exam on The Living Environment.  As the Gazette reports, in “Police: Regents taker an impostor” (January 29, 2009), Ellis “allegedly disguised himself as a girl to take a Regents exam for a current student.”  His skill as a disguise artist are somewhat lacking; it appears he wore a wig but other details of his make-over have not been released. Although he’s only 17 years old, Ellis is a former Schenectady High Student, so I’m not sure just how successful he has been in the past with taking Regents exams.  We’re not told whether he was taking this test out of romantic or entrepreneurial motives.  The unidentified “female student’s status — the real student — is under review, an official said.”

We are rather surprised that Deandre Ellis is charged with one felony count of third-degree burglary.  As the Gazette describes the rationale:

“Burglary is defined as knowingly entering a premises that you’re not supposed to be in with the intent to commit a crime, Police Department spokesman Sgt. Eric Clifford said.

“In Ellis’ case, he was not supposed to be at the school and he intended to commit the crime of forgery, Clifford said.”

Apparently, Sgt. Clifford told the Gazette they were using “a strict interpretation of the burglary statute.”  There are no criminal law experts in the f/k/a Gang, but it sounds more like a loose interpretation of the statute to us.

update (Feb. 19, 2009): The print version of the Daily Gazette has an article today on p. B3 titled “Imposter suspect in Regents exam faces lesser charge”.  It says District Attorney Robert Carney won’t be charging Ellis with burglary for entering a Schenectady school to take a Regents exam in disguise for another student.  Instead, Ellis is being charged with misdemeanor criminal impersonation, which he denied at his arraignment yesterday. DA Carney explains that “There has to be some sort of notice or communication to [a] person that ‘you’re not welcome’ to convert [entering a public building like a school] to a trespass,” on which to hang a burglary count.  According to Gazette reporter Steven Cook:

“But Carney likened the case to a shoplifter.  Anyone is allowed in a store, until they’re asked to leave. But a shoplifter isn’t charged with burglary, Carney said, even though they may have entered with the intent to steal.”

Tonsorial-forensic experts should note a mystery raised in the case:  Ellis wore a wig when posing as a female student in January.  As you can see above, he has short spiky hair in his mug shot.  But, three weeks later, he appeared in court with “long hair, past his shoulders.”  Neither Ellis nor his public defender were willing to comment on the issue.   Could it be Ellis will claim he always goes around in the long wig and therefore was not trying to impersonate the female student?

.. ..  Before & After Bellies: The human belly can be a most lovely sight.  Unfortunately, as we are all-too aware in modern America, it can also be a dreadful eyesore — and, one that the f/k/a Gang attempts to avoid as much as possible, whether be they dressed or undressed.  [Thus, you won't find Prof. Yabut nor dagosan hanging out near the food courts of large shopping malls.]  We’re getting very tired, therefore, of being bombarded with all the internet ads lately for diet supplements and exercise machines that promise flat stomachs, and that somehow feel they have to depict bulging, pastey, toneless “before bellies“.

To Jacky and all the other hucksters of such products, we say “after bellies only, please“  (and, preferably, aspirational models who never really needed the products anyway).

You might not get the results promised in those Flat Stomach ads, but we try to keep our promises here at f/k/a.  So, here is another installment in our new project to present haiku and poetry from the back issues of the mostly-offline Modern Haiku journal.

The following haiku and senryu from our Honored Guest poets all appeared in ..  Modern Haiku XXVII:1 (Winter-Spring 1996; above cover image by John R. Reynolds):

the paisley lampshade
by the broken cabin window,
dusted with snow

shadowy barroom–
dirt in the wrinkles
of the saddlemaker’s hand

…. by Michael Dylan Welch

fast water–
our shadows cross
the melting snow

the doctor’s office still air–
my name written down
as I spell it

…. by Gary Hotham

a robin
on the oak’s bare branch . . .
cold morning sky

… by Peggy Willis Lyles

First light
the white moths on the screen
turning white

… by George Swede

new bed
a foster child’s
recurring dream

hugs everybody
never putting down
her drink

… by John Stevenson

back from vacation . . .
fiddling and fiddling with
the combination

minimal order–
the waiter looks out
the window

… by Tom Clausen

]]> http://blogs.law.harvard.edu/ethicalesq/2009/01/29/from-sad-to-silly-to-sublime-on-a-wintry-thursday/feed/ 0 http://blogs.law.harvard.edu/ethicalesq/2009/01/19/the-sun-sets-on-the-bush-presidency/ http://blogs.law.harvard.edu/ethicalesq/2009/01/19/the-sun-sets-on-the-bush-presidency/#comments Mon, 19 Jan 2009 22:58:34 +0000 David Giacalone http://blogs.law.harvard.edu/ethicalesq/?p=10515 After years of troubled and cloud-covered skies, a subtle sunset marks the last day of George W. Bush’s presidency.

.. …. along Riverside Park

moving day
dust bunnies and shadows
left behind

. . . by dagosan

– sunset, along the Mohawk River, at Schenectady, New York, Jan. 19, 2009; photos by D. Giacalone –

.. an ice fishing parent and kids on the Mohawk .. ..

. . Cucumber Alley, dead end, at the Mohawk River

it’s pink! it’s purple!
sunset inspires
more bickering

… by David Giacalone - Frogpond Vol. XXVIII, #2 (2005) – click for a subsequent haiga

Thank you, John Mortimer, for creating Rumpole:  As today’s New York Times reports, “John Mortimer, Barrister and Writer Who Created Rumpole, Dies at 85” (Jan. 17, 2009).  The famous “champagne Socialist” will be much-praised and discussed in the media.  I want to thank him for creating, Horace Rumpole, who Bloomberg’s appropriately describes as “the curmudgeonly London trial lawyer renowned for his roguish way with the law, his love of small cigars and cheap claret, and his fear of just one person, his wife Hilda, a.k.a. ‘She Who Must Be Obeyed’.” No other fictitious character has given me so much enjoyment over the decades as Rumpole, on television and in novels.

As a lawyer and observer of the legal profession, I particularly appreciate Rumpole’s battles with the folks we call the Dignity Police.  As we said here three years ago, after listening to the audiobook of John Mortimer’s novel Rumpole and the Penge Bungalow Murders:

Throughout this enjoyable memoir of Rumpole’s first big case, he is chided by Queen’s Inns and Equity Court versions of the bar’s dignity police – pompous Heads of Chamber, like Wynset and Ballard, worried more about their own perquisites and appearing in “the finest traditions of our great profession” than in working diligently to keep a client from the death sentence or in helping to nurture the career of a young “white wig” lawyer.

Rumpole, of course, refuses to see his role as being “a safe pair of hands” wearing the correct color of pants.   Yes, he never does become rich or famous, or even Head of Chambers, but he serves his clients and profession with his zeal and his soul intact.

As for Mortimer, I particularly enjoyed Clive Davis’ remembrance yesterday in The Spectator, which includes this passage from his autobiography “The Summer of a Dormouse” (which Davis calls a “beautiful, slender book about the tribulations – and occasional – rewards of old age”):

After this encounter with various religious beliefs, I remember that C.M. Bowra wrote, “A people gets the gods it deserves. The grinning, gloating ogress of the Aztecs mirrors a race brutalized by incessant war.” So the Greek gods are as louche, and often as charming, as their worshippers. The God of Israel is extremely nationalistic and frequently cross. The Scotch God is prim and meticulous and the American God, at any rate on the Networks, wishes to be taken literally, lacks a sense of irony and prefers large financial contributions to burnt offerings. When I was at school I was introduced, in the Chapel, to the Church of England God, a well-intentioned old gent who doesn’t care too much for religion.

A final thought from Prof. Yabut: If you’re thinking of giving me a lifetime achievement award, please don’t wait until I’m 85.  If I don’t deserve one before then, I don’t deserve one.  Googling about John Mortimer today, I discovered that the mystery magazine The Strand announced it was giving John Mortimer a Lifetime Achievement Award on January 14, 2009, two days before the author died.

Flight 1549’s Landing Was Not a Miracle:  As we wrote two days ago, the f/k/a Gang was grateful and impressed by the outcome of the collision of US Airways Flight 1549with a flock of geese.   But, in response to the verbal reaction of America’s politicians, press and public, we voice a hearty “no!” to the headline in Rex Huppke’s Chicago Tribune article “Have we set the bar too low for miracles?” (January 16, 2009).  Huppke notes:

“The safe Hudson River landing of US Airways Flight 1549 was remarkable enough to push passengers and public officials, headline writers and talking heads straight into the realm of the supernatural. . . .  It was a tragedy narrowly averted, but was it really a miracle?

“The pilot, we now know, is highly trained and has years of experience. From a pragmatic standpoint, with an expert at the helm, the result was just what it should have been.”

Using the word more precisely in a religious context, John C. Cavadini, chair of the theology department at the University of Notre Dame, told the Tribune: “Strictly speaking, the term ‘miracle’ would be reserved for an event for which there is no natural explanation.”   And, Loyola University theology professor Dennis Martin noted that the Latin root from which “miracle” is derived merely means “a marvelous thing.”  He adds:

“I think it comes down to whether you believe in God’s activity in the world or not. Those who do would say that even with the skill of the pilot, if just a little something goes the wrong way it could all turn out quite differently. When a person of faith says it was miraculous, really what he’s saying is, ‘I believe God was involved.’ “

In response, Ruppke asks a very logical question: “[W]hat of the Canada geese officials think flew into the jet’s engines, causing the plane to go down? If there were divine intervention in the safe landing, why were the geese there in the first place?” And, Prof. Martin replies:

“No mainstream theologian would say God either directed those geese into those engines or that God didn’t act to stop them. God permits this to happen. The birds did what they did. The pilots did what they did.”

The skeptics here at f/k/a do not believe in divine intervention in human affairs. (If we did, we would have quite a few bones to pick with a supposedly all-loving but demonstrably arbitrary and capricious Supreme Being.)  For us, the safe landing of Flight 1549 was a “miracle” using the meaning of “an unexpectedly marvelous thing”.  It was not the result of divine intervention — nor angelic assistance.  We’ll leave you with two points to ponder:

• If a reasonable God were going to choose to grant a particular airliner a death-free crash, why in heavens would he choose one filled with employees of the Bank of America, just one day before BofA got a $20 billion bailout (and two weeks after it charged Your Editor a $39 fee for being a few hours late making an $18 minimum charge card payment)?
• To those who always tell me God allows evil and unfair things to happen, because he gave humans free will and has to respect it, I ask: “Did he give the geese free will, too?”

update: Almost miraculous:  Erik Turkewitz has been watching to see whether lawyers are complying with the New York ethics rule banning the solicitation of victims of a mass disaster within 30 days of the event. [DR 7-111 (22 NYCRR 1200.41-a)] So far, Turk has found only one lawyer looking for client with a Flight 1549 ad.  Only one!  Really.  Follow-update: Eric has done a great job explaining some of the problems that exist with the NY 30-day solicitation ban, in the post “New York’s Anti-Solicitation Rule Allows for Ethics Laundering and Must be Modified“  (January 22, 2009).

Marvelous but not unexpected: It’s only halfway through January, and Matt Morden has already posted more memorable poems and photos at his Morden Haiku weblog this year than I can fit in one post.  Here’s a sample:

lingering frost
i paint a wall
a new shade of white

.. [orig. Jan. 11, 2009]

winter breath
enough to obscure
the stars

all day in the ice
on fringes of the river
colour of the moon

down from the hills
a taste of mist
on my beard

… by Matt Morden at Morden Haiku

Matt’s year-end sunset inspired dagosan to dig up one of his own:

year-end sunset
we head East
into pinks and blues

……. by dagosan
(photo taken at Riverside Park, Schenectady, Dec. 28, 2009)

On Being a Female Phoenix

Not only do I rise
from my own ashes,
I have to carry them out!

by Marilou Awiakta, from Selu: Seeking the Corn-Mother’s Wisdom (Fulcrim Publishing, 1993)

.. Despite my allergy to Blawg Review themes, so many people have mentioned Susan Cartier Liebel’s phoenix-themed version of Blawg Review #194, with its focus on innovation in the practice of law, that I had to head over there, even if belatedly.

Although there’s nothing new about the f/k/a Gang flying around from topic to topic, that’s what we’re gonna do in this post about fresh starts and fresh eyes.

January storm
last year’s snowbank
slowly whitens

………… by dagosan

Kinky’s Presidential Phoenix:  After Hurricane Katrina, former presidential candidate (and chronic comic, author, and canine rescuer) Kinky Friedman had a few words to say that I would like to recycle and edit slightly, as the GWBush Administration ends and Barrack Obama’s rises:

A Message from Kinky

I wish to express my sincerest sympathy to those who lost loved ones, homes, jobs or hope as a result of hurricane Katrina [8 years with George W. Bush as President]. We should keep in mind that from every tragedy emerges valuable knowledge for our future, allowing us to correct those things that didn’t work as well as they might have. There also arises a Phoenix-like renewal of faith in the human spirit, when people give of themselves and their resources to help.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

unemployed
the uneven edge
of a quahog shell

a spring wind
coins in the cup
of a sleeping beggar

……. by paul m.
“unemployed” – The Heron’s Nest Award (Sept. 2005)
“a spring wind” – The Heron’s Nest (June 2000)

Chuck Newton on Clear Speech: Blawg Review #194 and some of its fans have mentioned third-waver Chuck Newton’s weblog posting “Clarity (Or The Lack Thereof),” as a plea for lawyer innovation based on the use of plain English.  Chuck says:

“What is wrong with some lawyers (many lawyer) (maybe most lawyers).  We are suppose to be the epitome of argument and persuasion, and we just lack clarity.   Argument is not the opposite of clarity.  Clarity should be the basis for any good argument.”

He then skewers a lawyer he calls Bob for his lack of clarity in a telephone conversation that related to a settlement negotiation, where “The Defendant had previously offered $2,000.00 to resolve the matter and I countered at $4,000.00.  The cuss never had the resolve to call or email me back as promised, so I called him.”  Here’s the core of the discussion:

Chuck: “Where do we stand on the settlement offer”.

Bob: “Presently, all I have authority for is $2,000.00″.

Chuck: “What does that mean, Bob?”

Bob: “What do I mean?  I do not know how I can be more clear”.

As an early proponent and practitioner of mediation, I agree with Chuck that gamesmanship is rarely good negotiation.  But, I’m not at all sure that the problem with Bob was lack of clarity.   Here’s my take:

• This is not a “Plain English and Lawyers” issue. The Plain English in the Law movement is about “legal information without the legalese.”  See Adam Freedman’s Party of the First Part weblog.  When legalese is not the cause of the lack of clarity, we’re in the realm of everyday unclear, obtuse bad writing or speech.

• Bob seems to me to have said exactly what he meant — and to use words that had the correct connotation and denotation for the context.  He told Chuck loud and clear that he could not go above $2000 at that time.  For Chuck, the problem was that he was not hearing what he wanted to hear, and the negotiation was not progressing, but that is different from blaming unclear speech.  Indeed, Bob really wasn’t using “argument” either — he wasn’t trying to explain his situation, and indeed did not want to explain.

• Unclear on Purpose: Thirty years ago, in a minor management position at the Federal Trade Commission and as a supervising attorney, I reviewed the work of hundreds of lawyers — usually memos in which they were trying to persuade the Commission to sue somebody or pass a particular rule.  It very quickly became clear to me — even using my neophyte cross-examination skills — that lawyers writing ambiguous or otherwise unclear sentences were almost always hiding something.  They didn’t want to lie, but they were willing to fudge and obfuscate, in the hope that no one would notice that the facts or the law weren’t quite as strong as they were insisting.  Despite Bob’s answering Chuck’s direct question by saying he had so spoken with his client about the $2000 offer, I would not be the least bit surprised to hear that, in fact, he had not, and that was why he could not go higher than his client’s first offer.

Yes, we need more Plain English from lawyers (who need to remember their audience), and in our laws and regulations.  Yes, win-win negotiation is usually in the best interests of our clients (and our sanity), while zero-sum negotiations using gamesmanship is often counterproductive, and not (despite what some swaggering and blustering attorneys seem to believe) the sign of Lawyer Mastery.  But, gamesmanship is not necessarily an example of unclear use of the English language.  If you want to improve your Plain English skills and your general ability to write clearly, see Adam Freedman’s essay “Can I Write Plain English?“.

………………. Fresh Eyes and Beginner’s Mind:  Susan Cartier Liebel picked a winner when she included “Fresh Eyeglasses” (What About Clients, Jan. 7, 2009) in her list of recent posting worth noting, and she was clearly right when she said:

“Sometimes innovation comes from simply putting on ‘Fresh Eyeglasses‘.” In another wonderful post over at What About Clients, Dan Hull talks about his ideal:

“Few of us can have Albert Einstein’s talent for Western logic, or IQ. But Einstein’s advantage over other physicists may have been that he was a “new soul”; he looked at everything as if he were seeing it for the first time.

“Work. He approached it from a wellspring of joy. There are others like him in that respect. Those are the kind of people I want as friends to inspire me, and as co-workers to solve clients’ problems. I’ll take an IQ a lot lower than Einstein’s (for associates, though, Coif or Law Review would be nice). Reverence and a child’s awe. That’s the outlook I prize. Energy, intensity and creativity always seem to come with it.”

. . . . . . . . . . . . . . . . . . . . .

blind date
she never mentions
my stripes and plaids

… by dagosan

Despite my sitting on Einstein’s lap thirty years ago, and writing and sharing haiku for over 5 years, I surely haven’t yet figured out yet how to see the world every day with “fresh eyes,” nor how to bring joy to my work (much less to infect others with joyous wellbeing).

.. But, Dan Hull’s praise for fresh eyes and new souls reminded me of the related (and perhaps nearly identical) characteristic taught and lived by many zen teachers: Beginner’s Mind.  I know virtually nothing about zen, but I have known from the moment I heard about beginner’s mind that working toward it is a journey I need to take in my far-too-opinionated and judgmental life.  And, finally giving up weblog punditry — which, frankly, brings me little joy — is probably where I need to start.

The tagline of the Beginner’s Mind weblog is this quote:

“In the beginner’s mind there are many possibilities, but in the expert’s there are few.” – Shunryo Suzuki-Roshi

Here’s a beautiful description of Beginner’s Mind, that I hope will whet your appetite (and re-kindle mine). It’s an excerpt from “A Lecture on Beginner’s Mind” by Abbess Zenkei Blanche Hartman (emphases added), to a class of zen students:

“Beginner’s mind is Zen practice in action. It is the mind that is innocent of preconceptions and expectations, judgements and prejudices. Beginner’s mind is just present to explore and observe and see “things as-it-is.” I think of beginner’s mind as the mind that faces life like a small child, full of curiosity and wonder and amazement. “I wonder what this is? I wonder what that is? I wonder what this means?” Without approaching things with a fixed point of view or a prior judgement, just asking “what is it?“

” . . . I don’t know about you, but when I started to sit [in zazen meditation] I really began to see how many fixed ideas and fixed views I had. How much judgment was ready right on the tip of my tongue. How much expectation, how much preconception I was carrying around with me all the time, and how much it got in the way of actually noticing what was happening. I don’t want to tell you that after thirty years I’m free of all that, but at least I notice it sooner and I sometimes don’t get caught in believing it.

” . . . In her poem “When Death Comes,” Mary Oliver has a few lines that say, “When it’s over, I want to say I have been a bride married to amazement, I’ve been a bridegroom taking the world into my arms.” This is beginner’s mind: “I’ve been a bride married to amazement.” Just how amazing the world is, how amazing our life is.  . . . This is our effort. This is our work. Just to be here, ready to meet whatever is next without expectation or prejudice or preconceptions. Just “What is it?” “What is this, I wonder?”

“So please, cultivate your beginner’s mind. Be willing to not be an expert. Be willing to not know. Not knowing is nearest. Not knowing is most intimate. . ..”

naughty child–
instead of his chores
a snow Buddha

“Gimme that moon!”
cries the crying
child

….. by Kobayashi Issa, translated by David G. Lanoue

this summer night—
she lets the firefly glow
through the cage of her fingers

in both hands–
the water she carries
from the ocean

…. by Gary Hotham from breathmarks: haiku to read in the dark

Tonko Rises Again and the Gazette Reiterates:  Congratulations to Paul Tonko, (Dem.-NY. – 21st Distrist), my new Congressman.  After two dozen years in the NYS Assembly, Paul resigned in 2007 to become President and CEO of New York State Energy Research and Development Authority (NYSERDA).  At the time, I think he considered his days seeking and serving in elective office to be behind him.  But, the surprise retirement of Mike McNulty from Congress opened up a much-coveted seat, and brought Paul Tonko’s political career back to life in a new form.

I’ll be keeping tabs on Cong. Tonko’s new career, and I hope he manages to bring both his lifetime of experience and a beginner’s mind to Washington.  But, tonight (despite my having just written about cultivating non-judgmental Beginner’s Mind) I want to note a phenomenom related to his new job that I have never seen in a half century of reading newspapers: The Schenectady Daily Gazette apparently thought it so important that “Tonko snags House panel slots in science, education” (by Edward Munger, Jr.), it printed the 12-column-inch article in full on both page B2 and the facing page B3 in the January 15, 2009 printed edition.  Why, however, it simultaneously failed to post the article at its website, I cannot say.

after renting the house
moon-gazing there…
twice

my world–
rice pounding echoes
over evening snow

….. by Kobayashi Issa, translated by David G. Lanoue

]]> http://blogs.law.harvard.edu/ethicalesq/2009/01/16/phoenixes-and-beginners-mind/feed/ 0 http://blogs.law.harvard.edu/ethicalesq/2009/01/15/flight-1549-fatalities-a-big-goose-egg/ http://blogs.law.harvard.edu/ethicalesq/2009/01/15/flight-1549-fatalities-a-big-goose-egg/#comments Fri, 16 Jan 2009 00:09:15 +0000 David Giacalone http://blogs.law.harvard.edu/ethicalesq/?p=10485 US Airways Flight 1549:  It’s very cold here in Upstate New York, but I’m still taking off my hat to praise the pilot (Capt. Chesley “Sully” Sullenberger, of Danville, Calif.), crew and passengers of US Airways Flight 1549, and all of the rescue workers (fire department, police department and Port authority police).  Together, they were able to bring today’s plane crash into the Hudson River to a remarkably happy ending — with all aboard surviving (most not even getting wet) and no apparent serious injuries. “All 155 survive plane crash in NYC’s Hudson River” (AP/Charlotte Observer, Jan. 15, 2009); “Jet Ditches in Hudson; All Are Said Safe” (New York Times, Jan. 15, 2009) [Click for "latest updates on the Hudson jet rescue" from the NYT City Room weblog.]

NY Gov. David Paterson got it right, when he said:

“This is a potential tragedy that may have become one of the most magnificent days in the history of New York City agencies.”

Apparently, the plan encountered a flock of geese. We now know what a “double bird” means to airline and safety workers — a bird or several birds entering engines on both sides of the plane.  According to a side article in the Charlotte Observer, there were at least 6 bird-plane collisions in 2008 — geese, hawks, owls and more.

– we’re left with yet another perspective on flocks of geese –

update (Feb. 12, 2009): The U.S. National Transportation Safety Board reported today that experts at the Smithsonian Institution have determined it was indeed Canadian geese that brought down Flight 1549, after examining 25 samples of bird remains found in the plane’s engine.  See AP report on CTA.ca, and CNN.

Master Issa wrote hundreds of haiku about geese, in the 19th Century.  Here’s a sample (find many more here)

another year
they’re back for the massacre…
rice field geese

wind is blowing
and so the geese
are honking

settling back
to dead silence…
rice field geese

finalizing the divorce
leaving my house behind…
departing geese

the departing goose
drops an enormous
crap

after many nights
telling me bedtime stories
the geese have left

straight out of a full moon
painting…
the geese depart

evening wind–
the geese turn around
honking

after the geese depart
back to normal…
Sumida River

…….. by Kobayashi Issa, translated by David G. Lanoue

honking at my window –
geese above
cabbie below

… by dagosan

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