Secular Sermons For Lawyers & Judges

Secular Sermons for Lawyers & Judges
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A BurtLaw Good Friday/Easter Sermon. I had a vivid dream on Tuesday, July 9, 2002, that woke me at 5:00 a.m. It was a dream in which the late Rev. Harold S. Nasheim, the Lutheran minister who confirmed me in the late 1950's, was a main player. It was a Sunday morning in the dream, and I was standing before the congregation hoping to be re-confirmed. I was not alone. Standing beside me, as a supporter and advocate, if need be, was a close childhood friend -- a fellow with whom I once played countless rounds of golf, with whom I once went to numerous movies at the old DeMarce Theater (it's still there), and with whom I once actually sat through an entire two-and-one-half hour Good Friday service, during which each of seven local ministers spoke on one of Jesus' "seven last words."

I needed a friend at my side in my re-confirmation dream because Rev. Nasheim was somewhat of an "old school" minister. He grew up in the Chicago community of Norwegian-Americans and eventually made his way to St. Olaf College here in Minnesota, then, in July of 1941, to my hometown. Very early in his ministry there, he had occasion to visit and read from the Norsk Bible to my ailing great-grandmother, Ragnhilda Harvey (Horvei) Herfindahl, who died at age 88 in August of 1942. Ragnhilda had been born in Voss, Norway, and christened in the Voss church in 1852, two years before she came to America. She was bilingual but loved her Norwegian

Bible, from which she read daily. And she was proud to be a Vossing and proud of her Voss dialect, said by many to be the most beautiful of the Norsk dialects. Since Rev. Nasheim's family was from Voss, it was natural that when he visited her, he would read to her from the Norsk Bible in her beloved Voss dialect and it was natural that she would feel a special rapport with him. Nonetheless, family legend has it that when he misread a verse from scripture, she unhesitatingly and confidently corrected him on it. I like to imagine she corrected him in much the same rather stern way he later would correct confirmands like me when our memorized responses to his questions were incorrect during Saturday morning catechism classes in the cold kitchen of the old Our Savior's Lutheran Church.

I say, I needed a friend at my side at my re-confirmation because, however soft a man he perhaps really was, he had a rather matter-of-fact stern, even harsh, "this-is-the-way-things-are" way about him on certain matters. Confirmation was one of them. Indeed, I knew an intelligent fellow, slightly older than I was, who was not much of a student but who was so terrified of failing at the joint public oral examination all potential confirmands of Rev. Nasheim underwent shortly before confirmation that he shut himself off in the unfinished basement of an unused, unfinished house for several days preparing for the exam.

Being so examined, alongside our peers, was tough enough. But now, in my dream I was the only one apparently in need of re-confirmation, I alone was being grilled by Rev. Nasheim, and the grilling was especially grueling.

I had picked my supporter-advocate well. Although we have re-established contact by e-mail, we have not seen each other in years. Since I last saw him, he has pretty much left (if anyone ever does really leave it) the practice of law, at which he was eminently successful, and now has a doctorate in theology, a subject he teaches well and on which he writes with lucidity. They say you can take the boy out of the small town, but you can't take the small town out of the boy. The same is true of our true friends. You can take us away from our old friends but you can't take our old friends away from us -- they have a way of staying with us, if only in spirit. It is, I think, also true of the things one learns in confirmation. One can "leave" the church or become "unchurched" or ignore it or become lax about it, but those old confirmation lessons have a way of staying with us. Sometimes they even make appearances in our dreams.

It turns out that in my dream I benefited from my friend's support and the potential for authoritative advocacy his sympathetic presence implied, because although Rev. Nasheim's grilling of me was grueling, it did not reduce me to gruel. While his grilling did offend the congregants, many of whom hissed at the harshness of his tone and even walked out in protest, it did not offend me. I didn't, as we say, "lose my cool," nor did I allow myself to become angry at him. Instead, I sort of "danced" around his sternness in an intellectual, theological way. Unwilling to claim I knew much of anything about anything, especially God, I ultimately basically said I wanted to confirm my faith that God is God, that He is all-powerful and can do anything He wants to do, even forgive Sin, including mine. In other words, I "jousted" with him in such a way that he couldn't refuse to confirm me without denying the basic tenet of Martin Luther's theology, that we are not "saved" by our good works or our adherence to "the law" -- or, for that matter, by our ability to memorize and repeat questions and answers from the confirmation book -- no matter how important those things are, but are "saved" alone by God's freely-given and totally unwarranted Grace.

Finally, although it certainly seemed to me that he did not want to confirm me, Rev. Nasheim reluctantly went forward with the ceremony and re-confirmed me -- or, perhaps it is more accurate to say, allowed me to re-confirm my faith, however weak and inadequate it may be.

Afterwards, we walked through the now empty church to what turned out to be, appropriately enough, if you think about it, a combination birthday-confirmation party. Among those present were my old mentor and friend and colleague, the late Justice C. Donald Peterson, & his entire family, as well as many of those who stormed out of the confirmation ceremony in protest. To all those present, I found myself being Grace-ful, defending Rev. Nasheim by telling everyone that it was a blessing to be put to a test once again by a good and powerful man who had so influenced me in my youth, that each of us needs people in his life like him who will provide what Robert Frost called "original response," some sort of loving obstacle or friction with which to contend. Life, I said -- impressing myself with my own eloquence and therefore making myself even more in need of Grace -- was not meant to be just an easy climb up the hill or a fun slide down the hill on a sled. Just as poets often benefit, I continued, from having to contend with the requirements of form, metre, etc., we too must metaphorically contend, as poets do, with the forms and metres and frictions and nets and picket fences and iron curtains and laws that seemingly keep us from being as free as we might sometimes like to be.

Why I found myself in a dream of re-confirmation -- as I recreated the dream and consciously strove to remember its details and understand its import -- struck me as rather obvious, whether one follows the approach to dreams suggested by Carl Jung or the approach taught by Jung's mentor, from whom he broke away, Sigmund Freud. I was dreaming reconfirmation because I probably want, and most certainly do need, to reconfirm my faith in something -- and if so, why not the faith of my youth, which, when I think about it, never let me down.

Jung (& his modern disciples, esp. James Hillman & Hillman's popularizer Thomas Moore) tells us to "play" with, to contemplate, to consider -- not to strictly try to come to the main interpretation of -- our dreams. I suspected immediately I'd be playing with this one as long as I have the capacity to do so.

Rev. Nasheim was a powerful figure in my life & I suspect in the lives of many of his other confirmands. I like to say I had a hundred extra fathers, in addition to the "regular" one with whom God blessed me and continues to bless me six years after his death. To my knowledge, Rev. Nasheim never married, never had any children. But nonetheless he was a father, one of my hundred extra fathers -- of my spirit, my outlook on human nature, my Norsk Lutheran values, etc., etc.

Now, on Good Friday (once referred to by Norwegian-American Lutherans as "Long Friday"), I find myself again re-examining my life and re-experiencing, as I always do, the shadows and the darkness. And, in doing so, I again, as I always do, prepare my spirit for another Easter, another rising. Rev. Nasheim typically used to end his sometimes bombastic sermons with a few words, a lesson or a plea to God, softly spoken. For example, once he told a story about being late for family dinner as a child and his father saying, "Where's Harold?" After using that vignette as a metaphor for the Children of God not being present at the Table (a frequent theme of his, often taken up on Christmas Day or Easter Sunday, when he was prone to reproach those who attended only on those days as "Twice-a-year Christians"), he might end by saying, in that soft voice, "May we, each of us, resolve to be present at the Table, so that when God asks 'Where's Harold?' or 'Where's Mary?' we'll each be there to answer, 'I'm here, Father, I'm here.' May God grant that it be so. In the name of the Father & the Son & the Holy Spirit - Amen."

Following his example, I'm going to end this little sermon by saying that my dream of last summer seems partly to have been a recognition by my psyche, by my soul, and a reminder to me, that I was then in need -- no, that I always am in need -- of the never-ending re-baptism & re-forgiveness & re-confirmation & re-generation that only Grace allows & that I am always free to accept.

(Whispered:) May God grant each of us this Grace, that each of us will seek what only Grace allows, never-ending re-baptism & re-forgiveness & re-confirmation & re-generation in Body & Spirit & Soul. In the name of the Father & the Son & the Holy Spirit - Amen. (04.18.2003)

Annie Dahlen's rosettes. Day after Christmas. Rosettes on sale at Lunds, Minnesota's premier gourmet grocery store. $4.00 for a dozen instead of $7.99. I like to eat them with whipped cream on top, covered with Swedish lingonberries. Eating a rosette, like eating a red plum in early June, does for me what eating a madeleine cake dipped in linden tea did for Marcel Proust -- it summons up instantly remembrances of pleasant, even sacred, things past. There were a number of women, most or all of them widows, who used to give

our family confections that would measure up against and trump the best of the best confections sold at Lunds. Back in the late '40s and early '50s Lettie Iverson would call and say she'd made some pies for us. Lemon meringue. Coconut cream. Apple. Pies at least as good as the ones Dave Letterman's mom makes. Lettie gave them to Mom. And then Mom would give her some money, along with her thanks and praise (for the pies) -- money accepted only after the usual Scandinavian protests ("No, no, I can't" and "You shouldn't"), followed by expressions of thanks and gratitude for friendship, followed perhaps by some harmless, indeed beneficial, gossip/talk. No sale ever took place. Just an exchange of gifts among equals. I don't doubt that Lettie made us pies when she needed a little extra cash. But I also don't doubt that we appreciated her gift to us as much as she appreciated our gift to her. The same may be said about Annie Dahlen's rosettes, which she would deliver in a large box of low height, one seemingly made for rosettes -- presented as if prepared by Martha Stewart. Martha Stewart? I just happened to watch her show on CBS on Christmas morning. One of the segments -- Chrusciki with Mrs. Martha Kostyra and Sophie Herbert -- consisted of Martha's mother making a Polish delicacy with Martha and with Martha's lovely teenage niece, granddaughter of Martha's mother. It was obvious watching her that Martha's mother is some woman -- loving and strong and resourceful -- and that Martha owes much of her success to being her daughter.

Particular poems by three poets have popped into my mind as I sit here composing my thoughts about the rosettes and Lettie Iverson and Annie Dahlen and Martha Stewart making delicacies. Three of many poems by that amazing but still not widely-appreciated poet, D. H. Lawrence -- Things Men Have Made, "Whatever Man Makes," and We Are Transmitters. The first pays tribute to "Things men have made with wakened hands, and put soft life into," lovingly-made things that "are awake through years with transferred touch, and go on glowing/ for long years...." The second speaks of how whatever a man or woman makes that lives does so "because of the life put into it," and thus "A yard of India muslin is alive with Hindu life." The third posits that sex is more than an act involving two people but is a generative, transmitting force that allows us to "transmit life into our work." Transmitting life takes place "[e]ven if it is a woman making an apple dumpling or a man a stool" if life goes into the making. Giving life "means kindling the life-quality where it was not,/ even if it's only in the whiteness of a washed pocket-handkerchief."

The second poet whose poems come to mind is the great William Carlos Williams, the good doctor who treated the poor in Rutherford (the real-life model for his "Paterson"), New Jersey and delivered their babies -- and also delivered poems, which often are little babies, perfections of form, living spirit taking living physical form. Two fine poems -- This is Just to Say and To a Poor Old Woman -- are about, among other things, the enjoyment of plums in June. The first one is in the form of a note left on the refrigerator by Williams to his wife, Flossie. It well illustrates how one can make a poem, a work of art, out of everyday ordinary ingredients. Another one: The Thinker (scroll down at website), a love poem to his wife that praises her indirectly by praising her "new pink slippers [that] have gay pompons," slippers the mere sight of which in the morning causes him to smile. And Love Song (scroll down), with its great opening entreatment, "Sweep the house clean,/ hang fresh curtains/ in the windows/ put on a new dress/ and come with me!" -- a poem that concludes with the request that the Great Eulogist (my words) will say of them, after they are gone, that "there was/ a burst of fragrance/ from black branches."

Black branches that sometimes blossom. Minor poets who once or twice in our meager lives produce something beautiful. Small-town Norwegian women whose crafts were making pies and rosettes -- and making memories for little boys. Eugene McCarthy, Minnesota's political knight errant in the great tradition of Don Quixote, has written some nice poems about small-town Minnesotans, some collected in Gene McCarthy's Minnesota - Memories of a Native Son (1982), including the grandmother who "could card wool and spin it,/ And knit toe and heel" and the other one who "could cook potatoes/ Eight ways at least/ And believed any illness would yield/ To eucalyptus tea, and brandy" ("Two Grandmothers"). Two of my favorites are "Litany of the Saints and Others" and "Litany of the Saints and Others II," poems in which he names the "saints" of his past. The first begins, "Mathilda Ophoven/ Minnie Quast/ Lucinda Nistler/ Verena Brixius," and proceeds thusly. Is this poetry? To him it is, and to me it is. What is a word but a small poem that represents so many other things. And what is a name of someone from our past but that which brings to mind so many memories of real living things, kind acts, small heroisms.

The Catholic Church has strict rules about designating someone a saint. One must have performed two reliably-witnessed miracles to be deemed a saint. Very few make the grade. We Norwegian Lutherans (as well as Eugene McCarthy, a Minnesota Catholic) are not so strict. We think of our little church as a "communion of saints," albeit "everyday saints" (the best kind) who perform ordinary miracles (the kind Walt Whitman celebrated in a poem titled Miracles) on an everyday basis all their lives. Each of us has his own litany of favorite personal saints that typically starts with names of family members. I have before me a red-covered, spiral-bound small-town church cookbook titled Recipes from Our Redeemer's, assembled, published and sold by the women of the Norwegian Lutheran church of that name in which I "was confirmed." I enjoy reading through the book and occasionally trying out some of the recipes of women I knew when I was a child (something I guess I still am). I always laugh when I come to the joke recipe inserted by a friend and distant relative who was a class ahead of me, Marilyn Johnson. It's a recipe for a BLT: "Arrange lettuce, tomatoes and crisp bacon strips on toast. Moisten with salad dressing. Serve." That, too, is a "poem" to me, and every time I make and/or eat a BLT I think of it and of her. Today I look in the section titled "Scandinavian and Smorgasbord." I review the recipes (sometimes multiple ones) for each of the traditional delicacies -- Krum Kake, Fattigman, Rosettes, Sandbakkels, Julekage, Swedish Pancakes, Rullepulse, Rommegrot, etc. (their spellings, which I accept as authentic). Today I also review the pie recipes. And I read again the names of women -- women who, in the Norsk tradition, would have been only too willing to call themselves sinners but to me also are saints. Hell, all of them saints as far as I'm concerned. :-)

The book, which bears no copyright or publication date, must have been published in the mid- or second-half of the 1950s. That's my guess, based on the presence of Marilyn Johnson's BLT recipe. It's too bad for me that the pies and rosettes of Lettie Iverson and Annie Dahlen aren't in there. But no matter. Today I thought of them. Ah! The things a boy remembers on a cold but sunny winter day! (12.26.2002)

Ethics for appellate court law clerks -- and a Saturday morning sermon. One wonders how many appellate court law clerks violate written or unwritten-but-obvious ethical rules governing their behavior while clerks (just as one wonders how many appellate judges do the same, perhaps unwittingly, more out of ignorance than venality). I do know that few law clerks get caught and disciplined. One who did now finds herself facing public reprimand. In 2000, while working as a law clerk for a state court of appeals, the clerk in question, a woman, sent a friend who worked for a large city an e-mail instructing the city's attorneys how to proceed in an appeal before a panel including the judge for whom she clerked. "The e-mail discussed evidence issues, cited specific legal cases and how

judges who would preside over the case respond to those issues." Attorneys for the city promptly reported the clerk's ethical lapse to the court, as was their ethical obligation to do. The clerk's judge recused and also confronted her, after which she resigned. More (Cincinnati Post 08.03.2002). In a related news item, the mayor of Peachtree City had planned to drive his daughter to golf camp, but learned a council meeting was scheduled. An employee volunteered to drive the girl. Later, the city manager told the mayor that may have been improper. The mayor offered to reimburse the city. The city attorney suggested dropping the matter. Wisely, the mayor has decided to "charge himself," putting the matter on the council's agenda for an "ethics hearing." More (Athens Banner-Herald 08.03.2002). One wonders how many bosses in government -- be they judges or executive branch figures or legislators or aides -- have violated one or more of the related written or unwritten-but-obvious ethical rules, including those against asking or letting underlings run personal errands for them, baby-sit for them, etc. I suspect one's wildest guess-timate might turn out to be too low rather than too high. Perhaps we expect too much from them. Like ours, their feet are made of clay. They, as do we, presumably fall short of the glory of God on a daily basis -- perhaps giving proof to Martin Luther's belief that we can't expect our own (wrongly-assumed) personal goodness to pave the way to Heaven. If we get there, it likely will not be because we've earned it -- it will be by God's undeserved but freely-given Grace. This is why I think the way I do about issues of crime and punishment and capital punishment. This is why I like what the English judge and man of letters, Sir Thomas Noon Talfourd (1795-1854), said: "Fill the seats of justice with good [people], not so absolute in goodness as to forget what human frailty is...." And this is why I like "The Fear of God," one of many great poems by Robert Frost, with its caution to those who "rise from Nowhere up to Somewhere" of the need to "Stay unassuming" and to "keep repeating to yourself/ You owe it to an arbitrary god/ Whose mercy to you rather than to others/ Won’t bear too critical examination...." (08.03.2002)

Are drug courts just another fad? Here's a link to an interesting article posted at AlterNet, "Rethinking Drug Courts" by Melissa Hostetler from Friction Magazine. The article, which is critical of the faddish creation of drug and other specialty courts, in which the judge becomes part social-worker, prompts me to say that we live in an age when people aren't happy with who they are. Nowhere is this more evident than in the legal profession, particularly the judiciary. Who of us doesn't know scores of lawyers who wish they were doing anything but practicing law? Paradoxically, the law schools are filled with disgruntled nurses, teachers, social workers and others who want to become lawyers. No wonder, then, that many lawyers who become judges aren't comfortable being just judges. Thus, e.g., we have the not unusual phenomenon of the social worker turned lawyer turned judge turned social worker. Just focusing on judges, we see example after example of judge who wants also to be teacher, legislator, minor celebrity, author, social engineer, and/or corporate manager. Perhaps this dissatisfaction with the role of "just judge" underlies the judiciary's susceptibility to fashion and fad -- whether the fad be a) sentencing guidelines, b) mandatory continuing education for lawyers and judges, c) mandatory attendance by lawyers and judges at didactic seminars on the subject of diversity, d) mandatory contribution by lawyers to programs providing emotional and psychological support to lawyers suffering from alcohol or drug dependence or depression, e) the adoption of judicial "mission statements" (a fad that apparently began in the business world with companies like Enron, which had a very fine mission statement, indeed), f) the holding of court sessions in the public schools, g) expensive "retreats" at corporate conference centers, h) the establishment of specialized courts such as drug courts -- the list goes on. Thomas Wolfe wrote, perceptively, "She who is whored by fashion will be whored by time." There are some students of the judiciary who believe that the courts are in danger of, well, not being "whored" by fashion but let's say of being too concerned with being fashionable or "new" or "cutting edge," of forgetting why we have courts and judges. In a tribute to Edwin Arlington Robinson after his death, Robert Frost wrote: "It may come to the notice of posterity...that this, our age, ran wild in the quest of new ways to be new....Robinson stayed content with the old-fashioned way to be new." Our judges could do worse than "stay content with the old-fashioned way to be new." I hear a judge say, "What are you talking about?" I reply, "That you have to ask suggests the scope of the problem." Sometimes I think ordinary people have a better understanding of the proper role of judge than most judges do.... (03.18.2002)

Dr. BurtLaw on "ASN" & other disorders. Our supreme court in Minnesota was apparently thinking of the "general good" of lawyers when it decided to "tax" each lawyer a small but mandatory amount of money, paid as part of the annual attorney registration fee, in order to support the Minnesota version of the program which has become a fad of bar groups around the country, the program that typically is called "Lawyers Concerned for Lawyers."

At the risk of being called a misanthrope, I made it clear last year that I oppose this mandatory fee. My thinking is contained in a "secular sermon" I wrote on the subject of "doing good." Click here. A politician/judge who was one of my many mentors told me once after retiring that one of the differences between Democrats and Republicans is that Democrats more often support "programs" that involve the expenditure of tax dollars to accomplish some perceived public good, whereas Republicans are more inclined to propose "policies" that will promote a perceived public good without requiring significant expenditures of tax dollars. Not as a Democrat concerned for Democrats, not as a Republican concerned for Republicans, not as a lawyer concerned for lawyers, but as a suburban guy with a small-town heart who is concerned for his fellow man, I've decided to provide from time to time, at no cost to anyone, free info (or links to some free info) about some newly-identified disorders that threaten the public health. Today I will focus on two.

The first such disorder is Acquired Situational Narcissism or "ASN," which is what a New York psychiatrist, Robert Millman, believes explains aberrant behavior such as that exhibited when a movie star engages in minor criminal misconduct such as petty thievery or drug use. More (This is London, 01.10.2002). Dr. Millman suggests that while prescribing an SSRI can help with the symptoms, it is also important to target the root cause by "getting celebrities to accept that they are narcissists" and by "gently encouraging [them] to relate better to those around them." (For a more detailed discussion, by Stephen Sherrill in "The Year in Ideas," The New York Times Sunday Magazine for 12.09.2001, click here.) Serendipitously, I just read a report about a new book titled Unto Others by David Sloan Wilson, a psychobiologist, who proposes expanding the definition of altruism to include not just generosity and goodness but also punishment and expressions of anger if they are designed to help or reform someone who has acted selfishly. More (ABCNews, 01.09.2002). After reading the two stories, I'm wondering if Dr. Millman shouldn't consider spanking his patients or, perhaps, shouting at them, while reassuring them it's for their own good.

I don't know if anyone has yet identified a disorder I suffer from, one I'm calling Masochistic Deferred Gratification Syndrome or "MDGS." Like many disorders, its main characteristic is the transformation, by overemphasis, of what is a virtue into a vice. Ability to defer gratification is one of the general characteristics shared by members of the middle class. Unfortunately, some people, especially Norwegians, of which I am proudly one, by their obsessive good-faith desire to become virtuoso deferrers, unwittingly cross that invisible line into the netherland of chronic masochistic deferment of all gratification and pleasure.

Without realizing it, I first observed one of the classic examples of healthy deferral of gratification in my maternal grandfather, Otto (NMN) Herfindahl (depicted above right not-opening presents, just the cards, at Christmas at our house in 1956). Grandpa Otto, at least when I knew him, typically did not open Christmas presents when received. He'd take them home to his farmhouse, where he lived alone following my Grandma Pauline Pederson Herfindahl's death. There the presents would sit, sometimes for months. His deferral became one of his "things" -- my mother would tease him about it, and he liked playing the game. That, I believe, is what separates healthy, functional deferral from what in my case is perhaps properly labelled by my imaginary shrink as unhealthy, dysfunctional deferral. For Grandpa Otto, deferral was a game he liked playing, one we understood was a game, one we liked playing with him. His deferral hurt no one's feelings and he derived pleasure from it. Eventually, out of the blue, he'd call, perhaps some March evening when he was feeling blue, and say, at the end of our conversation, "Tell 'Beat' [the short version of my mother Beatrice's name) I like the [insert description of Christmas present]," followed by, "Well, I better go."

In my case, deferral has lost its anchoring in play. I defer gratification habitually, even when I don't like doing so, when there's no possible benefit to me from doing so, and when the chance of hurting someone's feelings in the process is significant. When my neighbors, as they often do, drop off some "comfort food" leftovers and I immediately put the leftovers in the freezer to save them for eating when I'm particularly in need of comfort food, I'm doing nothing wrong, so long as I quickly thank them and make it clear what I'm up to and why. But when a particular someone I cared about deeply gave me a Christmas present and I put it in a closet and never opened it and hurt her feelings in the process, I know I crossed some sort of line -- and later on, after she ended our friendship, I found myself including it among an agglomeration of such instances that became a bill of particulars supporting an indictment that, in true masochistic fashion, I voluntarily filed against myself and prosecuted with vigor. :-)

What is the remedy for a severe case of "MDGS"? Swallow some SSRI's? Used for other than a needed boost during a time of crisis, they can provide a glossy delusional kind of wellness that may cause one to defer dealing with the underlying problems causing the symptoms. Deferral of dealing with what is a deferral problem compounds the problem. Some altruistic punishment? My view is it makes little sense to punish a masochist in an attempt to bring about a cure of his masochism. That is like treating a person's alcoholism by prescribing booze. No, I think the solution is (and I admit to self-interest in saying this)...yes, more kindness, more gifts! :-) There's a character in a Salinger story I like, a man who enjoys a kind of benign paranoia, believing the world is engaged in a conspiracy to make him happy. That is how I've felt at times in my life, when I've been "in flow," when I've found myself accepting gifts and opening them immediately and with relish. Care about someone with "MDGS"? Wanna know what you can do to help him? Smother him with kindness, folks. Become a part of a conspiracy to make him happy. Prove to him there's no need for him to hoard kindness, no need to gather it in squirrel fashion and store it up against an imagined desolate winter. Convince him that there's no need to fear the coming of the storm, that you'll be with him through any winter of discontent and not just on sunny, high days in July when he's at Minnehaha Falls with you and time seems to have stopped. Don't punish him or abandon him. Rather, in the words of a famous now-departed Yale Law professor, Fred Rodell (84 Yale L.J. 6, 8), "Squander" upon him, "don't hoard for some hereafter,/ your gifts of grace and love and laughter." (01.11.2002)

Our voyeuristic society. At times, especially in the winter when I need a cinematic escape from the cold weather of Mpls, I say it's my favorite movie -- Alfred Hitchcock's Rear Window (1954). It's a literally-hot movie that's about romance and love and suspense -- and a lot of other things, including voyeurism. James Stewart plays an aging commitment-phobic globe-trotting playboy photo-journalist who finds himself in the middle of a heat wave confined to his apartment recuperating from a broken leg.

With no t.v. to watch (it's 1954) and nothing much to do except play the grouch during daily visits by his nurse (Thelma Ritter) and his high-society high-fashion girl friend (Grace Kelly at her absolute loveliest), he becomes a voyeur, watching the people in the apartments on the other side of a courtyard. Each one of the individuals who inhabit the apartments is experiencing some form of romantic love or hate or anticipation or loss. Stewart begins to suspect one of them, Raymond Burr, has murdered his wife. As many critics have remarked, the movie seems designed in part to draw each of us into Stewart's voyeurism and thereby show that each of us is, in varyying degrees, voyeuristic. When one lives in a small town, one can be pretty much passive, almost confined as it were to one's house, and still have one's basic voyeuristic needs satisfied. All one need do is keep one's eyes and ears open. It doesn't work that way in modern, 21st Century urban America, where many of us don't even know our next-door neighbors. We need substitutes of sort for the town gossips who used to serve us up our news on a platter. One substitute is the t.v. soap opera. Others include reading People magazine and the supermarket tabloids and watching Entertainment Tonight. And for many of us our jobs serve as the functional equivalent of both small town and extended family, helping us satisfy our basic voyeuristic need for vicarious life. But there are always folks among us who have different ideas about where the line should be drawn as to what is appropriate voyeurism and what is not. Consider these recent items: a) Two former Philadelphia Eagles cheerleaders have filed suit against 23 other NFL teams for damages, alleging the players on these teams "sneaked peeks at them through peepholes between the visiting-team locker room and the cheerleaders' locker room at Veterans Stadium," watching them dress and undress, etc. [more] One wonders if any cheerleaders used the peepholes to peep in the other direction; if so, we may soon be reading about similar lawsuits filed by the players. Or does the law only work in the one direction? b) The judges of the U.S. Circuit Court of the 9th Circuit (the one the U.S. Supreme Court reverses the most) are outraged, as I think they should be, over their discovery that their internet use, and that of other court employees, has been monitored by computer-monitoring software installed with the knowledge of administrators in Washington. [more] c) By attaching a special filter to a camera that is equipped with infrared or "night-vision" capability, one can literally "see through" another person's outer clothing and photographically or digitally record what one sees. [more] d) One can hardly visit a commercial website these days without being greeted by an annoying pop-up ad for a tiny spy (or voyeur's) camera that one can hook up to a digital video recordering device. Each new instance presents a new and distinct challenge to the old wisdom about what is or should be private. And the challenges sometimes are ones we can't avoid. As a parent, for example, what are you to do when your pre-teen daughter wants to make it easier for the voyeurs by wearing provocative clothes, e.g., tops that reveal her belly button? [more] Some people may have no difficulty in deciding on which side of "the line" each new instance belongs. For others, the task is as hard as collating snowflakes during a blizzard. For the record, I'm against peeping at cheerleaders (or NFL players) through peepholes, against employers using software to monitor their employees' internet travels, against using x-ray vision to see through people's clothes, against using spycams, and against pre-teen and teen girls wearing provocative clothing. I'm in favor of apple pie and corn on the cob. (08.09.2001) Update: Cheerleader says peeping went both ways (Trentonian, 01.10.2002); dozens of cheerleaders join peeping lawsuit (Trentonian, 01.10.2002).

Online grocer fails where Chuck's Grocery succeeded. "Webvan, the online grocer that epitomized the buoyant optimism that the Internet could revolutionize even the most entrenched industries, closed yesterday and said it would seek bankruptcy protection." The story in NYT for 07.10.01 adds that "After spending almost all of the $1.2 billion put up by investors, including some of the savviest in Silicon Valley, Webvan ran out of money long before it could hope to turn a profit." Amazing. When I was a kid growing up in a small Minnesota town on the eastern edge of the Great American Prairie, there was a "business model" for home delivery of groceries, at no extra charge, that didn't require the use of a computer. My mom simply picked up a noncellular rotary-dial telephone, called Chuck's Grocery, located on West U.S. Highway 12, a block from our house, and read a list of groceries to whoever answered the phone. Shortly after she returned home around 4 p.m. from her job as a teacher at a rural one-room school (where she taught kids in eight different grades without the use of computers), the high school boy who delivered groceries for Chuck's would show up with a neatly-packed box of all the groceries she ordered. Chuck's -- a family-owned grocery store operated by Chuck and Lydia Logan -- didn't require any investment by venture capitalists. Chuck's delivered exactly what my mom ordered, and on time. Chuck's didn't go bankrupt. (07.10.01)

On Adams & Jefferson & Independence Day: Although the Second Continental Congress, meeting in Philadelphia, formally declared America's independence on July 4, 1776, the more important vote, on whether to declare independence, occurred on July 2, two days earlier. Thus it was that John Adams, in his famous letter from Philly on July 3 -- to his wife, Abigail Smith Adams, back home in Braintree, Massachusetts -- predicted that "The Second Day of July 1776" would be "the most memorable Epocha in the History of America." Here's what he wrote:

"Yesterday the greatest Question was decided, which ever was debated in America, and a greater perhaps, never was or will be decided among Men. A Resolution was passed without one dissenting Colony 'that these united Colonies, are, and of right ought to be free and independent States, and as such, they have, and of Right ought to have full Power to make War, conclude Peace, establish Commerce, and to do all the other Acts and Things, which other States may rightfully do.' You will see in a few days a Declaration setting forth the Causes which have impell'd Us to this mighty Revolution, and the Reasons which will justify it in the Sight of God and Man. A Plan of Confederation will be taken up in a few days.But the Day is past. The Second Day of July 1776, will be the most memorable Epocha, in the History of America.- I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival. It ought to be commemorated, as the Day of Deliverance by Solemn Acts of Devotion to God Almighty. It ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfire and Illuminations from one End of this Continent to the other from this Time forward forever more....You will think me transported with Enthusiasm but I am not. - I am well aware of the Toil and Blood and Treasure, that it will cost Us to maintain this Declaration, and support and defend these States. - Yet through all the Gloom I can see the Rays of ravishing Light and Glory. I can see that the End is more than worth all the Means. And that Posterity will tryumph in that Days Transaction, even altho We should rue it, which I trust in God We shall not."

Fifty years later, on July 4, 1826, the Golden Jubilee of the Declaration, both Adams and Jefferson died. Interestingly, Jefferson fell into a state of semi-consciousness two days earlier,

on July 2, the 50th anniversary of the vote to declare independence. On the 4th, shortly before he died, Jefferson woke briefly and inquired whether it was yet the 4th. He died around noon. Adams died in the afternoon a few hours after Jefferson died. Shortly before he died, not knowing Jefferson had died but aware that he, Adams, was dying, Adams declared, "Jefferson still lives." (The truth is, they both still live.) We think of Jefferson in connection with the Declaration, because he drafted it. But as Daniel Webster said in August of 1826, in a great speech [click here] paying tribute to the two men, "[T]he general opinion was, and uniformly has been, that in debate, on the side of independence, John Adams had no equal. The great author of the Declaration himself [i.e., Jefferson]

has espressed that opinion uniformly and strongly. John Adams, said he...was our colossus on the floor. Not graceful, not elegant, not always fluent, in his public addresses, he yet came out with a power both of thought and of expression, which moved us from our seats..." Herewith is a sample of that "power of thought and of expression" that "moved them from their seats" -- what Adams said, in countering the argument of Hancock, who, arguing for delay, expressed fear that they would be arrested by British forces and hung as traitors. Said Adams: "Sink or swim, live or die, survive or perish, I give my hand and my heart to this vote. It is true, indeed, that in the beginning we aimed not at independence. But there's a Divinity which shapes our ends. The injustice of England has driven us to arms; and blinded to her own interest for our good, she has obstinately persisted, till independence is now within our grasp. We have but to reach forth to it, and it is ours." I think it merits pointing out that both Jefferson and Adams were lawyers. But since this is the age of narrow-focused specialized lawyering, it merits even more emphasis that Adams and Jefferson were the kind of lawyers we don't see much of these days, lawyers who, as Thomas H. Benton put it, "mixed literature and science with their legal studies and pursuits...." (07.01.2001)

Gossip. Many of us say we don't like gossip. Somehow we've been convinced there's something "small-town" and malicious or petty about it. And we hope others don't gossip about us. But, deep down we know that gossip is fun. We realize, as Oscar Wilde did, that if it's bad to be talked about, it's worse "not being talked about." Robert Frost liked "the actuality of gossip, the intimacy of it." His wonderful poet's ear for human speech, which helped him creatively transform ordinary talk into extraordinary poetry, certainly owes much to his acquaintance with, and enthusiastic participation in, the world of gossip. Phyllis McGinley wrote, "Gossip isn't scandal and it's not merely malicious. It's chatter about the human race by lovers of the same. Gossip is the tool of the poet, the shop-talk of the scientist, and the consolation of the housewife, wit, tycoon and intellectual. It begins in the nursery and ends when speech is past." I believe our society could function quite well without the right to recover in damages for defamation, but it could not function well at all without the right to speak, that is, the right to gossip. People have been fired for gossiping about their bosses, but no business or political organization could function successfully if employees didn't gossip, about each other and about their sometimes bad-ass bosses. Those who say they don't like gossip are either lying or somehow repressing a very normal, even essential, human need. To gossip is to be human, to be a part of a group, a part of society. That gossip is good for us, and for society -- something we all knew all along -- is now the subject of scientific proof by folks like Frank McAndrew, professor of psychology at Knox College in Galesburg, Ill., whose work is profiled here. More on gossip: click here, here, here, and here. (06.26.2001) Update: Mobile (cell-phone) gossip is good for us (Social Issues Research Centre) (04.23.2002).

Justice Todd and the janitors of the world. It says in the Bible "All flesh is grass." What a wonderful egalitarian sentiment. Ultimately, we all are equal, if not always before the law in practice, always before God.

But only some, not all, people know this. Typically, in my experience, the folks who know it are the folks who don't have big titles and don't put on airs, who treat everyone kindly, and not because it will get them points. Folks like "Little Wash," a black janitor at Harvard Law, who used to sit and talk with me, sometimes even buy me a milkshake, on the occasions when he'd run into me in the grille on the second floor of Harkness Commons, to which I regularly went after a night of studying. Wash was the father of "Big Wash," Ned Washington, who was an All-American basketball player at a college in Boston who later played pro ball in the old American Basketball Association. At Christmastime, 1966, when I told him I wasn't going to be able to go home for Christmas, Wash invited me over to his house to spend it with his family. I didn't take him up on it, but I've never forgotten the invitation or his daily kindness.

And I've never forgotten the kindness of "Kelly," the friendly, voluble burger-flipper at the grille, who, like Wash, was a far more significant figure in the daily lives of many of the students than were the star professors, many (but not all) of whom not only were egomaniacs but just plain ornery, nasty men.

I thought of these important men, Little Wash and Kelly and others, when I read an essay, To See the Invisible, by Kevin Merida in a recent issue of the Washington Post. More than two million people are employed as janitors in this country but, as Merida says, "sometimes it's as if the rest of us don't see them," unless, that is, "we are looking down at them." Merida says: "There are many reasons we become what we become -- why some of us argue cases before the Supreme Court and some of us vacuum the court's chambers. But there is no good reason not to embrace, as Dr. King once put it, 'the dream of a country where every man will respect the dignity and worth of the human personality.' A job is just a job, but all lives have value."

I also thought of these men the other day when I was writing "An Appreciation" of John J. Todd for inclusion in a volume the Minnesota State Law Library is preparing, partly as a result of a suggestion by me, for presentation at an upcoming ceremony at the Minnesota Supreme Court. I thought of these men because, unlike some, Justice Todd was not one to forgot from whence he came, or the people he had known there, including janitors. Moreover, he never fooled himself into thinking that his title, and all that went with it, somehow made him more important in God's eyes than anyone else. Indeed, the ordinary folks at the court -- secretaries, janitors, law clerks, staff attorneys -- always knew that they could go to him if they had a problem and that he would respond with common sense, fairness and kindness.

Mr. Merida quotes one janitor as telling his own kids, "You don't get nowhere looking down at nobody." Merida adds: "If you do that, you won't see what you need to see." (05.10.01)

An earlier piece: "A mound of earth a little higher...." -- some notes to myself for a secular sermon on "doing good." An old man in my hometown who was one of my mentors, one of the fathers of my spirit, used to recite a poem with that line. It came to me the other night as I was dwelling briefly on my own mortality. Thanks to Google's great search engine, I found it instantly on the WWW. Here it is -- it's by Henry Watterson: "A mound of earth a little higher graded/ Perhaps upon a stone a chiselled name/ A dab of printer's ink soon blurred and faded/ And then oblivion -- that, that is Fame!"

Ultimately, it is not one's fame or office or wealth or whether one's tomb will be visited that matters. But you won't hear me say that "nothing" matters. As George Eliot puts it at the end of her greatest novel, Middlemarch, "the growing good of the world is partly [I'd say "mostly"] dependent on unhistoric acts; and that things are not so ill with you and me as they might have been, is half owing to the number who lived faithfully a hidden life, and rest in unvisited tombs."

The key there is "lived fathfully." How does one "live faithfully"? Is it as easy as following "The Ten Commandments" from good old Exodus and Deuteronomy? I don't think so; I don't think I've ever thought so. In fact, some of the saints I've known are folks who violated quite a few of the good ol' commandments.

If I got anything out of being raised in an independent-thinking, loving, forgiving Norwegian Lutheran family, it's that no man needs the church to be an intermediary between himself and God. Every man is a priest, as Martin Luther puts it. It's this notion that underlies George Will's statement that Luther, for all his faults (I recently reread Luther's Large Catechism and find his faults to be many), is one of the Founding Fathers of this great country of individualists who commune together in the secular faith that each of us is equal before the law as well as before God.

As a priest who is always "seeking," I find I agree with Emerson that God didn't stop revealing Himself to man 2,000 years ago in the person of Jesus. God is with each of us, in each of us, right now. While we may not be able to earn Heaven by doing good deeds, we can, I think, look for and care for the God in everyone we find in our path. Perhaps we might even find Him in that person's mistakes or illnesses or sins, even crimes.

That I believe is what William Blake, the great mystic poet, means when he says: "General Good [of which we hear so many people in public office speak] is the plea of the scoundrel, hypocrite and flatterer. He who would do good to another must do it in Minute Particulars." We do good to another by caring individually and personally and concretely and immediately.

Our supreme court in Minnesota was apparently thinking of the "general good" of lawyers when it decided to "tax" each lawyer a small but mandatory amount of money, paid as part of the annual attorney registration fee, in order to support the Minnesota version of the program which has become a fad of bar groups around the country, the program that typically is called "Lawyers Concerned for Lawyers." I suppose I'm a misanthrope for saying I oppose this mandatory fee, but I do. To me, it's simply proof of something I have witnessed, that many of us lawyers, in and out of the judiciary, apparently can't simply lend a personal helping hand when one of our colleagues is drinking too much or is sad over some loss or is in acute or chronic need. Rather, we have to lend our help generally, mandatorily, communally, bureaucratically, verbally, indirectly, by proxy. It's easier, of course. And, speaking only hypothetically, it allows some of the folks around the country who champion these programs to not only feel good about themselves (which typically doesn't take much effort) but to add yet another line to their long obituary-bound resumes. What a sad lot we've become -- as parents, as friends, as lawyers, as human beings, in whom a bit of divinity supposedly resides. Next thing you know we'll form neighborhood groups called "Neighbors Concerned for Neighbors" and if a neighbor is in need we'll refer him to the organization.

What's the answer? Rent Lawrence Kasdan's Grand Canyon and watch it again this weekend. Listen to its message. Reread Emerson's great essay "Experience" ("Without any shadow of doubt, amidst this vertigo of shows and politics, I settle myself ever the firmer in the creed, that we should not postpone and refer and wish, but do broad justice where we are, by whomsoever we deal with, accepting our actual companions and circumstances, however humble or odious, as the mystic officials to whom the universe has delegated its whole pleasure for us. If these are mean and malignant, their contentment, which is the last victory of justice, is a more satisfying echo to the heart, than the voice of poets and the casual sympathy of admirable persons.") Reread Robert Frost's "The Fear of God." (It's not in the public domain yet, but if you "do a Google," you might find it easily enough online, as I did just now.) Think if maybe your friend's or kid's or colleague's pain is not just his pain but God's personal gift to you, gift of the chance to help, in minute particulars, by making his pain yours. Live your life faithfully, however hidden it may be. And don't worry about whether anyone will visit your tomb when you're dead (odds are no one will). (02.19.01)

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Announcement. We've finally gotten around to launching our new webzine/blawg: BurtLaw's The Daily Judge:

It is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, it is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert the reader to ideas, articles, stories, speeches, law books, literary works and other things about "judges" that have interested us and that may interest the reader.

We don't promote our blawgs, but readers of this blog and of our affiliated political opinion blog, BurtonHanson.Com, may be interested in it. We don't think there is another blawg quite like it.