Part-Time Pundit

The Moral Responsibilities of Lawyers

It seems that the StopTheACLU blog and the Volokh Conspiracy are having a little tiff about this week’s blogburst. He has a problem with this post in particular.

ACLU critics call the organization pro-terrorist, pro-pedophile, anti-Christian, etc. Volokh takes exception, particularly in calling the lawsuits frivolous. For that, he has a point. Frivolous is ALWAYS the term that lawyers use to describe their opponents arguments and it has become largely devoid of value. I also don’t think that suing New York to stop random searches is driven by a pro-terrorist agenda. I think it is largely parsing words and playing on fears. We can be searched going into airports, government buildings, and for that matter, public schools. But the ACLU thinks the Republic is collapsing searching people going on trains. It is a silly argument but in the end, it is also a silly policy. Quite often our counterterrorist policies are designed to prevent the LAST attack, not the next one. However, I digress.

The fundamental issue people have with the ACLU and that Eugene Volokh doesn’t get (nor do lawyers) is that we recognize that the ACLU shapes the law and lawyers insist they are not involved with lawmaking or shaping the law. On this count, Volokh is wrong. Lawyers are most certainly involved in lawmaking, law shaping, and imposing social change via the law. We’ll overlook that all judges are lawyers and that the bulk of legislators are lawyers as well.

The way our judicial system works is that largely you can do anything you want until you are challenged on it (either criminally or in civil court). Then a judge decides between which two sets of legal arguments he buys and that becomes case law. When the Supreme Court does this, it becomes the de facto law of the land. Lawyers may insist that they don’t shape or make the law, but I think this is largely an attempt to exonerate them from any social responsibility for their actions.

Remember the Twinkie defense? That was invented by a lawyer who managed to convince 12 people that it was legitimate to slide his client who had apparently killed someone into an insanity defense. How about Roe v Wade? That wouldn’t be the law of the land because of Norma McCorvey (Roe). It became the law of the land because two lawyers found her, took her situation, and argued in front of the Supreme Court that things should be different. One could say that the Court decided, so they bear the responsibility but if it weren’t for the lawyer’s arguments and initiative the case wouldn’t ever be heard. The lawyers do play a part in shaping and creating law.

Also, a common tactic of lawyers is to price the other side out of the game. If the other side doesn’t have the money to defend themselves, they lose. This happens frequently with cash strapped school districts. The ACLU shows up and to prevent a lawsuit they school caves, even if they could successfully defend the suit. The ACLU can shape policy simply because it is too costly to fight them.

Lawyers are officers of the court and they serve a particular purpose in our society. They do, I would argue, have higher responsibilities than simply advocating and fighting for their clients. Lawyers have created a litigation climate where there is no such thing as an accident; only a right to collect money from whomever has the deepest pockets. The vigorous defense of rapists has led to women not coming forward and pressing charges because the lawyer will simply keep calling the woman a whore and put her sex life on trial. Our criminal system is less a measurement of guilt and innocence than a measurement of whether the police follow every single mundane procedure (some legitimate, some outright dumb) and if the police slip up, criminal walks.

Volokh argues that if cases are decided in favor of the ACLU then the law is at fault, and people should change the law. Thinking like this has given us a tax code that is incomprehensible to many lawyers, much less normal citizens. People can’t figure out what they owe without paying someone to figure it out for them. In order to sign up for a Hotmail account, I have to agree to 15 pages of contracts (assuming I found all the ones that are on the website).

Lawyers hide behind their clients saying they are simply vigorously defending their client’s interest. Society would be better off if lawyers realize that they have an obligation to society to create a fair and just system. It is time lawyers stop hiding and absolving themselves of responsibility and acknowledge that they have ethical responsibilities beyond lining their pockets with 40% of multi-million dollar judgments.

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August 5th, 2005 Posted by John Bambenek | Law / Legal Issues | 7 comments

Let’s Talk About Sex

Kate Hudson doesn’t believe monogamy is possible. Skipping past someone who works in an industry known more for sex and coke parties than for long-lasting marriages, she’s wrong. She says she won’t cheat because that would disrespect her husband. There’s a little more to do with it than respect.

I’ve been married almost 4 years now, long enough to get comments from others when my wife and I are being affectionate that we’ve been married too long for that kind of thing. Passion and romance need to be cultivated or you will be looking at the situation Kate describes, where you have to force yourself to be faithful. That doesn’t make monogamy unrealistic, it just means it takes work and that’s the problem.

Far too many people go into marriage thinking it’ll just “work”. The results speak for themselves, most marriages end in divorce. When I was still a consultant, I saw many coworkers making choices to take road-warrior jobs so they can get more stuff even with the sacrifice of time with family. When I choose to take my job at the University with the attendant 70% pay cut, I choose time with my wife instead of the 5000 sq. ft. house on 5 acres. These messages get transmitted and received and has an effect on marriage. If you want a marriage to work, you must put the marriage at a high priority bilaterally.

But that’s not precisely what Kate is saying, she isn’t saying that marriage is unrealistic, but monogamy is. More specifically, she says it is ok if her husband cheats as long as he doesn’t get caught. Am I alone in thinking that’s ridiculous? Did marital fidelity become exclusively Christian (or religious) with the rest of the pop culture running around trying to keep up with their libidos?

Before I got married, I applied to seminary. Of course, when some people found out that I was pursuing that they’d ask, “But you can’t have sex?” or some iteration of the above. Not that I couldn’t get married, not that I would never have children, but that I couldn’t have sex. I was never asked about marriage or kids. This came from Christians and Catholics as well as those who are not. When I think of why I married my wife many things come to mind, her gentleness, sweetness, compassion, intelligence, sense of humor, the fact that I wanted to spend every day around her. Sure, she’s drop dead gorgeous too, but that’s not even all that important. The last thing to come out of my mouth as to why I married her would be because then I could have sex. I married her because I want a relationship with her; I value her companionship and her company, not because I wanted to have “legitimate” sex.

If you had to choose between unlimited sex with your spouse but no relationship or a relationship with your spouse and no sex, which would you choose? Sex is great but it isn’t the end-all-be-all of human existence and certainly not marriage. People on their deathbeds looking back on their life don’t usually express regret in not having enough sexual partners.

On to the realism of monogamy. Maybe I’m unusual, but maybe it’s just that I’m man enough to be satisfied with one woman. She’s beautiful and wonderful enough that the concept of sitting around fantasizing about other women while looking at porn is ludicrous. The idea of “you can look but you can’t touch” legitimizes the idea you can’t be satisfied with one partner, or for that matter, that satisfaction in a relationship is solely a factor of looks and the “quality” and frequency of sex. The realism of monogamy starts with the exclusion of all others, even inside the realm of the mind. Monogamy starts by not drooling over the latest flavor of the month presented by Playboy magazine, or yucking it up with officemates on the latest T&A report. It’s pretty easy to choose to be faithful when you aren’t in a strip joint, frequenting prostitutes, concerning yourself with the breasts of copuious amounts of women, or developing romantic relationships with other people.

Infidelity does not occur out of the blue. It isn’t like slipping on a patch of ice outside your house. There are those who go around sleeping with a bunch of people, and for them, I’m excluding in this because of the obvious character flaw. People who want to be married and stay married generally aren’t the type to sleep around as a habit. In marriages where the spouses have confidence and share themselves fully with the other, adultery is an offensive thought. That person is who you confide things to (a dynamic that needs to be worked on and developed) and who you share your heart with completely. When you start opening yourself up that way with another person of the opposite sex, you end up distancing yourself from your spouse at the same time. There is something about the human heart that wants to be shared completely with only one person. When you let one person in, you’re pushing another out. If you are spending your time with your spouse and building a life together, you just don’t have time or the inclination to go out and build a life with a mistress. If monogamy is so unrealistic, why does Kate Hudson not want to know about marital indiscretions of her husband should they exist? She may not think it is realistic, but she certainly seems to be expecting it and she knows her heart would register adultery as a huge violation of trust.

It sounds to me like pop culture is telling her that having sex with the same person for life is unrealistic while her heart is telling her that fidelity is something that should be there. Of course, there will be those who insist that any sense of fidelity is to make sex boring and to make life dull. Is excitement what people feel when after having a one night stand they wonder if they’re lover will call the next day? Or even remember their name? Can you really say one is enjoying their body and sexuality when their partner is just using them from cheap sex and plans to be gone before sunrise?

Kate, your heart is trying to tell you something, that it is perfectly reasonable to insist on fidelity, that it is realistic, and that you want to have your husband all to yourself. Ignore the culture you live in and realize that it’s ok.

UPDATE: Thanks to Dawn Eden for linking to this post.

August 5th, 2005 Posted by John Bambenek | Religion | 6 comments

The Final Death Penalty for Chief Illiniwek

How did a loud and vocal minority eventually find a path to victory in killing off Chief Illiniwek? Polls indicate 86% of Illinois resident support the Chief, an overwhelming majority of the alumni who give money to the University surely do, and every government agency every to rule on the issue says the Chief is not offensive. In the end, they won by getting to the people with power and making them impose their will. They get people without jobs to show up at rallies and be enraged and tell stories about how the Chief has destroyed their lives. And at the end of the day, the people who support the Chief will do little but complain when the minority finally carries out the death sentence ordered by the NCAA. Are the alumni going to stop giving the University money if the NCAA whacks the Chief? Will they stop going to games?

Let’s be realistic for a moment. If a team called their mascot the “racist, inbred, incestuous, redneck, cracker, mother f*cker Christians” it wouldn’t affect my life one bit. (In fact, it would be refreshing to see the honesty of people who actually believe that to come out and say it and stop pretending to be “tolerant”.) I’m sure they may be sincerely offended, but they have left no room for negotiation. They continue to say the Board has to deal with this issue when they really mean the Board has to get rid of the Chief. The Board has decided this issue repeatedly, just not in favor of the minority. Now the NCAA has come down to do it for them. Sure, they can keep the Chief; they just can’t play in tournaments and have to deal with the NCAA pressuring other schools not to schedule games against Illinois.

The rallying call for those anti-Chief people is “What if it was your religion?” I’m Catholic, let’s talk about how my religion is portrayed and dealt with in far more important things. How about the John Roberts nomination to the Supreme Court with quarters of this country saying he should be excluded on the bases he is Catholic? Or how about the Rocco Buttiglione treatment out of the EU, where the entire EU government could not be installed because Buttiglione was a devout Catholic making him unfit for ANY OFFICE within the EU, including the Energy Ministry. We could also talk about the de facto policy that Chancellor Richard Herman took part in establishing that says even though there are speech codes non-discrimination policies on campus, those policies do not protect Christians and that complaints from Christians are to be discarded? It’s one thing to have an offensive mascot; it’s much more malicious to exclude an entire class of people from public life on the basis of their religious affiliation. However, the same crowd that fights against the Chief is silent or in support of shutting up and shutting out Christians.

I don’t really have strong opinions on the Chief issue, honestly. I find the complaints without merit, but if the Chief went away it wouldn’t matter. A Cherokee being upset about how the Illini are represented is ludicrous. They were different nations with different religions and practices 2 centuries ago and only naïve racist white men can’t tell the difference between Indian tribes. I don’t think the violent occupations of campus buildings should merit anything but immediate expulsions and prison sentences. In the end, this is just another instance of a loud and vocal minority who happens to get lots of media time imposing another facet of their theology on an unwilling population.

I have on my desk a quote from Stephen Balch, “Our colleges have become less marketplaces of ideas than churches in which you have to be a true believer to get a seat in the pews.” This is more proof he’s right.

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August 5th, 2005 Posted by John Bambenek | University of Illinois | one comment