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Year in Review, Take Four

November 22, 2013 2 comments

One yearTwoThreeFour years ago today, I started this site with the following statement: “An attorney should always put a statement of the questions presented at the very beginning of any brief unless the rules forbid it.” In that opening post, I tried to map an approach that would guide content then unwritten.

My goal has been to try to ask real questions, not leading or rhetorical ones, in an attempt to reveal something about what underlies our assumptions, ideas, and viewpoints. I’ve tried to at least imply a question in every post, and where I did not, my approach was to put forth a position that invited responsive comments, of which the site received many. Things have slowed down here a bit in the past year, but with nearly 3,500over 9,700nearly 1417,000 views in the first yeartwothreefour years, I still think we’re off to a good start.

Thank you for your readership and feedback.

Categories: Uncategorized

Extreme Equivalency

August 29, 2013 2 comments

Categories: Uncategorized

Year in Review, Take Three

November 22, 2012 Leave a comment

One yearTwoThree years ago today, I started this site with the following statement: “An attorney should always put a statement of the questions presented at the very beginning of any brief unless the rules forbid it.” In that opening post, I tried to map an approach that would guide content then unwritten:

… Setting aside the notion of persuasion, the judicial posture is a useful one for approaching the world.

On the national level of the American governmental apparatus, judges usually are considered passive entities. A court cannot reach out and take or create a case that is not properly before it, nor can it concoct a set of hypothetical facts and issue a decision based on those facts. Most of the time, courts cannot even rule on arguments or contentions the parties do not raise. This detached position encourages patience and allows one to receive an orderly presentation of considerations before making a decision. And judges must make some kind of decision. Judges are passive in posture, though not in nature. At the very least, they must issue a judgment– a verdict, decision, or ruling. By convention or rule, they need to be prepared to defend their decisions verbally or in writing. This requirement of eventual and substantial action reinforces and enhances the passive phase and its attendant values. Knowledge that one must later decide focuses the passive mind and encourages patience to allow for a full understanding of the matters at hand. There is mutually reinforcing energy between listening and deciding such that nothing is mere talk, and chatter has little purpose. As usual, time is a foundational consideration: listen, then decide, then defend, and then listen again.

Resource limitations are a part of our condition. When we choose to utilize our limited resources, we want to do so effectively. This applies to mental resources as much as it does to fuel and finances. Regardless of a resource’s renewability, other limitations will constrain its expenditure or utilization. Efficacy and efficiency are the best responses to this fact of limitation, here represented by the phrase “in the real world.” Many scholars are feeding their families today because of their ability to operate (in varying degrees) detached from the real world. Ideas are important. Theory is important. That’s the point of what you are reading and will read here. The seemingly unavoidable limitations on resources demand that we root ourselves in reality, while allowing ourselves to discuss, critique, and reevaluate that reality. This is a chance to find out what happens when keeping it real goes right.

What about the questions presented? Wasn’t that where this was supposed to begin? It was, and it is. Justice Scalia and Brian Garner emphasize the primacy of questions presented because those questions shape everything that follows. I’m not exactly sure what will follow, but I have some ideas and I know you do too. It’s time to start asking questions that matter.

My goal has been to try to ask real questions, not leading or rhetorical ones, in an attempt to reveal something about what underlies our assumptions, ideas, and viewpoints. I’ve tried to at least imply a question in every post, and where I did not, my approach was to put forth a position that invited responsive comments, of which the site received many. With nearly 3,500over 9,700nearly 14,000 views in the first yeartwothree years, I think we’re off to a good start.

Thank you for your readership and feedback.

Categories: Uncategorized

Year in Review, Take Two

November 22, 2011 4 comments

One yearTwo years ago today, I started this site with the following statement: “An attorney should always put a statement of the questions presented at the very beginning of any brief unless the rules forbid it.” In that opening post, I tried to map an approach that would guide content then unwritten:

… Setting aside the notion of persuasion, the judicial posture is a useful one for approaching the world.

On the national level of the American governmental apparatus, judges usually are considered passive entities. A court cannot reach out and take or create a case that is not properly before it, nor can it concoct a set of hypothetical facts and issue a decision based on those facts. Most of the time, courts cannot even rule on arguments or contentions the parties do not raise. This detached position encourages patience and allows one to receive an orderly presentation of considerations before making a decision. And judges must make some kind of decision. Judges are passive in posture, though not in nature. At the very least, they must issue a judgment– a verdict, decision, or ruling. By convention or rule, they need to be prepared to defend their decisions verbally or in writing. This requirement of eventual and substantial action reinforces and enhances the passive phase and its attendant values. Knowledge that one must later decide focuses the passive mind and encourages patience to allow for a full understanding of the matters at hand. There is mutually reinforcing energy between listening and deciding such that nothing is mere talk, and chatter has little purpose. As usual, time is a foundational consideration: listen, then decide, then defend, and then listen again.

Resource limitations are a part of our condition. When we choose to utilize our limited resources, we want to do so effectively. This applies to mental resources as much as it does to fuel and finances. Regardless of a resource’s renewability, other limitations will constrain its expenditure or utilization. Efficacy and efficiency are the best responses to this fact of limitation, here represented by the phrase “in the real world.” Many scholars are feeding their families today because of their ability to operate (in varying degrees) detached from the real world. Ideas are important. Theory is important. That’s the point of what you are reading and will read here. The seemingly unavoidable limitations on resources demand that we root ourselves in reality, while allowing ourselves to discuss, critique, and reevaluate that reality. This is a chance to find out what happens when keeping it real goes right.

What about the questions presented? Wasn’t that where this was supposed to begin? It was, and it is. Justice Scalia and Brian Garner emphasize the primacy of questions presented because those questions shape everything that follows. I’m not exactly sure what will follow, but I have some ideas and I know you do too. It’s time to start asking questions that matter.

My goal has been to try to ask real questions, not leading or rhetorical ones, in an attempt to reveal something about what underlies our assumptions, ideas, and viewpoints. I’ve tried to at least imply a question in every post, and where I did not, my approach was to put forth a position that invited responsive comments, of which the site received many. With nearly 3,500over 9,700 views in the first yeartwo years, I think we’re off to a good start.

Thank you for your readership and feedback.

Categories: Uncategorized

Extreme Authority

June 10, 2011 Leave a comment

Doubtful power does not exist.

In re Procedure and Format for Filing Tariffs Under the Michigan Telecommunications Act, 210 Mich App 533, 539 (1995).

Categories: Action, Uncategorized

Extreme Liberty

February 4, 2011 6 comments

Indeed, the notion of individual liberty is so deeply embedded in the Tennessee Constitution that it, alone among American constitutions, gives the people, in the face of governmental oppression and interference with liberty, the right to resist that oppression even to the extent of overthrowing the government.

Davis v. Davis, 842 S.W.2d 588, 599 (Tenn. 1992).

Nemontemi

December 29, 2010 Leave a comment

In ancient Mesoamerican cultures, which generally ordered themselves on calendars with eighteen months of twenty days each, the last five or so days of the year were mathematical remainders, leftovers, outside of order, and considered without identity, even unlucky. In modern North America, the week between Christmas and New Year’s Day fills the role of these days, called nemontemi in general Mesoamerican parlance, and if the days don’t hold the negative characterization they once did, they at least are a time of diminished stability and identity, in-betweenness, and of (inescapably progressive) transition.

A small daughter of his, one day, chattering to him, said a thing that made him cold with anger. She used the word “city” as an adjective, and as an adjective so inclusively commendatory that he knew she implied that whatever was the opposite of “city” was inclusively culpable. He knew that she reflected a judgment that was becoming dangerously general, and he wondered how long he himself could evade it. For days after that he went about fortifying himself by his knowledge of history and ancient fable, telling himself that man had immemorially drawn his best strength from the earth that mothered him, that the farmer, indeed until quite recently, in the South, had been the acknowledged lord; the man most often a tradesman. “But what have history and ancient fable,” the fiend whispered, “to do with the present?” Cousin Lucius admitted that they apparently had little to do with it, but he believed they must have something to do with it if it were not to go amuck past all remedy.

Some of Cousin Lucius’s friends thought that the solution of their troubles was to adopt frankly the Northern way of life; and others thought that the solution was to band themselves with the discontented farmer sections elsewhere in the country, and by fierce force to wrest the national organization to a pattern that would favor farmers for a while at the expense of industrialists. On the whole, philosophically, he hoped that farming would continue paramount in his Georgia. He knew little of the philosophy of industrialism, but he knew some people who had grown up to assume that it was the normal order of the world, and he knew that those people left him without comfort. Yet he doubted the wisdom of fierce force, anywhere, and he disliked the renunciation of individualism necessary to attain fierce force. And he observed that in the camp of his contemporaries who relied on that expedient there were many who favored socialistic measures he could not condone, and more whose ignorance and selfishness he could not stomach. The only camp left for him, in his political thinking, was the totally unorganized– and perhaps unorganizable– camp of those who could not bring themselves to assert the South either by means of abandoning much that was peculiarly Southern or by means of affiliating themselves with many who had neither dignity nor wisdom nor honesty.

John Donald Wade, “The Life and Death of Cousin Lucius,” I’ll Take My Stand: The South and the Agrarian Tradition 282-83 (Louisiana State University Press 1983) (1930).

Best wishes for safe passage into 2011.

Categories: Uncategorized

Extreme Reciprocity

May 22, 2010 Leave a comment

If this nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.

Justice John Paul Stevens

He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach himself.

Thomas Paine

Categories: Compassion, Uncategorized

Atop the Mountain, Where the People Come to Pray

March 2, 2010 2 comments

“We don’t get to waltz through the wilderness. The whole point is that wilderness is the place where we are lost and have to be found. It is Lent, time to get tripped up, to get to the wilderness, and to get lost.” Rev. Becca Stevens, Wilderness, sermon, delivered at St. Augustine’s Chapel, Nashville, TN (Feb. 21, 2010). Lent is the season of the Christian calendar that precedes Easter and represents the forty days during which Satan tempted Jesus in the wilderness prior to the beginning of Jesus’ public ministry. Modern observers may fast, give up a particular habit or indulgence, or otherwise cleanse themselves and focus upon the coming of new life and salvation in the risen Christ, celebrated on Easter.

Like Advent, Lent is an anticipatory season, but it also is a journey to a place, the wilderness. “It is right to make our literal and metaphorical journey into the wilderness. The wilderness is the journey, not the destination. It is the place we wander as we make our way home.” Id. In this age of convenience, it is easy to think of going into the wilderness in metaphorical terms. Although new media and technology enable us to learn more about our planet, it is not controversial to say that people are detached from nature, at least in developed countries. Given that reality, metaphor and abstraction may not trump actuality when it comes to entering and experiencing wilderness. Sacred space still can be found within one’s mind and body, to be sure, but it has power and meaning in the physical world of the tangible, tactile, and visceral. There is value, in other words, in taking literally the call of those like Stevens to go into the wilderness.

Wilderness is dynamic. Political theorists caution us against building our societies around “back-to-nature” concepts. The wilderness is dangerous and unpredictable. Relationships and interactions are complex. In the wilderness, there are losers and survivors. Some beings flourish, but all survival depends upon self and mutual reliance.

A particular feature of wilderness worth considering is the mountain. A versatile opportunity in many forms, the mountain has been both a destination and the terrain of journeys. See, e.g., Moses on Mount Sinai, Exodus 19:1-25. The mountain could be a frosty peak, a volcano, or, if your wilderness is a desert or other flat space, a man-made mountain, like a pyramid.

The climb can be exhilarating, the top a place of achievement, rest, power, commencement, perspective, and spiritual transcendence. As with the care needed when drawing lessons from wilderness, so too with mountains, as they are places of danger. The recent death of inspiring skier C.R. Johnson is a reminder of this. Danger and death nevertheless cannot be reasons to fear and resist entrance into wilderness and the approach to the mountain. The potential danger is as much a part of the mountain’s power as is the potential for positive outcomes. They are integral to the meaning of wilderness.

If we ever want to glimpse the glory of being found, we had better be willing to be lost. This season is the wilderness season, to remind all of us, a people with all our trials and tribulations, these times of wandering in the wilderness and being undone by the world, are times when we are on sacred ground. It is when we see the back of God’s head, the bush burning, and the voice of God in the silent wind. We stand in this season with Abraham and Sarah, Isaac and Rebecca, Jacob and Rachel and Leah and all the wandering Arameans to hear our call again and find new paths.

Id. The bulk of Lent takes place during the month of March. Even if you don’t observe Lent, chances are good that you observe March, a tumultuous month known for entering like a lion and concluding like a lamb. It’s a mixed up time that’s not quite winter and not quite spring. It’s as good a time as any to get lost in the wilderness.

Stories of discovery, renewal, being lost, being found, questions answered, questions asked, inconvenience, regression, growth, progression, and anything else that comes from the climbs and tumbles through the wilderness of life are welcome.

Categories: Uncategorized