First Advertising

I'm excited to share my first advertisement, set to come out in the August 8, 2013 edition of Outword Magazine. Outword is Sacramento's Lesbian, Gay, Bisexual, and Transgendered news source:

Outword Magazine is the long-time, proven leader in quality lesbian, gay, bisexual, and transgender advertising and news for Central and Northern California. With an average press run of 10,000, Outword Magazine is the area's largest, most respected and dependable LGBT publication for Sacramento and Northern California. We are now in our 17th year.

You can read Outword on line at: http://www.outwordmagazine.com/download_pdf.htm.

Advertising is a new and exciting venture for me. To date, I've gotten all my clients by word of mouth. So, its thrilling that I'm in a position to grow my career. Here's the first ad:

Simple and to the point.

Let me know how I can help you with your employment and family matters.

Your,
Bear

The Wall Between Religion and the People

Today, the secular nature of the federal government is ingrained in our understanding of how it affects our lives and relationships. Our understanding often flows from the Constitution's Bill of Rights, First Amendment, the so-called Establishment & Free Exercise Clauses:

Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof ... .

Constitution, Amend. 1.

Today, we use these clauses to shield the government from religious incursion. For instance, they have been used to argue — sometimes successfully, sometimes not — against (click for resources on each topic):

• Public Prayer.
• Creationism and its flavors .
• Public display of the Ten Commandments.
• Crosses on public land.
• "In God we Trust" lawsuit.
• "Under God," Pledge of Allegiance lawsuit.

However, these clauses developed as a personal right — hence their position amongst the rights enumerated in the Bill of Rights — to protect religion instead. For instance, the antifederalists argued, during debate over what would become the Free Exercise clause:

[A North Carolina delegate] "advocate[d] for... [the right] of worshipping [sic] God according to the dictates of conscience in particular. He therefore thought that no one particular religion should be established. 

[A New York antifederalist] criticized the Constitution, stating, "I could have wished also that sufficient caution had been used to secure to us our religious liberties, and to have prevented the general government from tyrannizing over our consciences by a religious establishment... ." 

Advocates of amendments in Maryland urged "[t]hat there be no national religion established by law; but that all persons be equally entitled to protection in their religious liberty. 

... the Virginia ratifying convention included among its proposed amendments a statement "[t]hat religion ... can be directed only by reason and conviction, not by force or violence; and therefore ... no particular religious sect or society ought to be favored or established, by law, in preference to others."

Natelson, William and Mary Bill of Rights Journal, The Original Meaning of the Establishment Clause (2005) at 89 (formatting added).

An excellent observation on the religious views of the time come out in Natelson's discussion that the Establishment Clause was originally designed to protect only theists, and not to protect atheists:

... the contemporaneous "middle" was quite a bit more religious than it is today. One is reminded of the observation by that proto-Whig whose legal commentaries educated so many offounding generation's lawyers, Sir Edward Coke: "[I]n religion ... if a man go too much on the right hand, he goes to superstition, if too much on the left, to profaneness and atheism. And take away reverence, you shall never have obedience ... . "

Natelson at 114.

Indeed, many of the constitutional delegates were actively hostile to atheism generally. "Lastly, those are not at all to be tolerated who deny the being of a God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist." Id. at 101 quoting John Locke.

The point here is that the wall between church and government was not constructed to keep the church out of our lives, but to allow individuals believers to choose their own religion. Yet, the language is so clear: the state is a secular organization which cannot establish a religion and cannot interfere with its free exercise.

And the logical extension has been that favoring one religion over another amounts to an establishment of religion. This test has become embodied in a key constitutional decision on this matter in Lemon v. Kurtzman:

The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead they commanded that there should be "no law respecting an establishment of religion." A law may be one "respecting" the forbidden objective while falling short of its total realization. A law "respecting" the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause.

Lemon v. Kurtzman, 430 U.S. 602, 613 (1971).

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion[; third], the statute must not foster "an excessive government entanglement with religion."

Id. (citations and formatting omitted).

Other, related tests exist, but this one is still widely used. What its saying is that government action must be secular in nature, cannot impinge religious belief one way or the other, and cannot encumber the operation of the government with religion.

Thus, current constitutional thinking does create a wall of separation between church and state. When it comes to laws, there can be no entanglement. This wall should be favored by theists and atheists alike. It keeps theists safe from the tyranny of a state religion and likewise keeps religion far from atheists.

If anyone tells you that the United States is a Christian nation, you can tell them that they are wrong. Their own religious forefathers made sure of that.

Your,
Bear

Change your Approach

Clients hire attorneys for all sorts of reasons: to defend them in criminal prosecutions, to enforce contracts, to uphold rights defined by statute, and to get money for injuries to their person or property. But in all cases one thing is the same: the client is seeking to offload their grievance to the attorney. Usually, the client wants to put the case in a black box and have a positive outcome on the other side. And attorneys, for one reason (to bill) or another (to keep the client pacified) are happy to oblige this way of seeing the relationship.

Image Source: Assembly Archive.

But two recent podcasts got me thinking that this might not be the best way of looking at the relationship.

The first was the Center for Inquiry's interview with Steven Novella, physician and podcaster for the New England Skeptical Society. In the interview, Novella describes his evolving approach to evangelizing and popularizing science and critical thinking. He describes early attempts at challenging popular superstitions — such as shattering mirrors to prove that nothing bad will happen — morphing over time into putting on a reasonable face, minimizing controversy, when confronting charlatans, even though they are selling snake oil. His point, I think, was that not all approaches work with all audiences. Thus, to get your message across, you have to be both savvy enough to know you're not succeeding and flexible enough to change your approach.

The same is true in evaluating how to pursue your case against your adversary in litigation. The art of litigation is getting someone to do something they won't otherwise do. What litigants forget is that doing so is time-consuming and expensive. But, depending on the circumstances, there must be a better way which minimizes the costs in time and money. The only way to do so is for the client and the attorney to work together — and for both you and your adversary to realize that only compromise can hope to minimize expense.

The second was a Freakonomics podcast about the economics of spite. This episode asked the question: why do we do things to hurt others — even when they hurt ourselves — from which we obtain no particular benefit? Now, I don't think they got the definition right — they appeared to emphasize the doing harm to yourself part, where as the dictionary (and my) definition is simply "malicious ill will" or simply "doing harm to others." Spite carries the connotation that the intent is the harm and not some other gain.

What got me thinking, though, was a set of experiments they described. Two individuals, paired off, who could not see each other were given $10. In the first experiment, one of the pair was required to offer the other a portion of the $10 so that the pair could walk away with some money. The other could either accept what was offered or could reject it and cause both parties to walk away with nothing. The researchers found that if the offer was less than 20% of the total, the other would consistently reject it, even though it meant that he (and the offeror) walked away with nothing.

In the second experiment, both parties were given $10. One of the pair could choose to allow both parties to walk away with the full $10 each, or could give up $1 to cause the other to lose $5. The researchers found that subject consistently sought not the greatest gain for themselves, but to maximize their own gain over that of the other — meaning that the often chose to shaft the other player, giving up the $1 so that they would earn a higher percentage.

In both cases, the players were harming themselves for the sole purpose of "spiting" the other player. And that so describes the approach many litigants hold in their lawsuit on both sides of the table. Does this say anything about human nature that can be used in litigation? Maybe, but does give rise to an idea which is uncommon in litigation: where can I place my number so that the other side thinks he's prevailing, while still getting me what I need?

Now, usually, negotiation tactics are all about convincing the other side that they are going to lose big time. But these experiments indicate that approach may be fruitless if the other side is willing to punish at any cost to him, her, or itself. Thus, neither party wants to give an inch, even if it saves them a yard.

And attorneys — wittingly or unwittingly — lead their clients into this money-trap. By offloading 100% of the problem and by doing the client's bidding, attorneys are often a barrier to a mutually beneficial settlement early in the case, rather than being a promoter of settlement when costs are low and the pressures of litigation haven't killed both sides.

A different approach is in order in most cases. Attorneys should be savvy enough in their unique fields to guide the parties to eliminate side issues or non-issues, and to either come up with a number which satisfies everyone's needs (before attorney fees eat away at that total) or to focus the litigation on what is really at stake — skipping the mud-slinging phase and getting the job done in a minimum amount of time.

Be Careful What you Say

...some future archaeologist might be listening.

Tablet of Shamash.
Image source: British Museum.

Because my job involves using language to communicate, I've started studying the history and use of English as a form of communication. It turns out that English is one of many Indo-European languages stemming from the same ancient root language. This language spread as groups migrated from the region the the north and east of the Black Sea (part of modern day Ukraine, Russian, and Georgia) in multiple directions. These migrations occurred approximately 6,000 years ago for various reasons — the nature of the geography, the rise of animal husbandry, and patterns of conquest.

And as various groups made their way out of the region, they took words from the proto-language and morphed them over time in various ways. The archaeology of those changes are predictable and their effects demonstrate commonality in languages as diverse as Greek, Latin, early Germanic languages, and into all modern European languages. (See chart, below.) Indeed, the same language family produced such far-flung languages as Sanskrit and Hindi.

What is fascinating is that in comparing all these languages, we learn that English is a great language sponge. It absorbs words rather than rejecting them. As a result, English has an enormous vocabulary with words coming from early Germanic, Anglo-Saxon, Latin, and Greek, just to name a few.

English is also very ready to accommodate foreign words, and as it has become an international language, it has absorbed vocabulary from a large number of other sources. —Oxford Dictionaries on whether English has the largest vocabulary.

The evidence for this exists in our day-to-day speech. For instance, you move your foot when you walk making you a pedestrian.

Image from Prof. Wheeler's page on the history of English.

Foot and ped- are "cognates," meaning: "Having the same linguistic derivation as another; from the same original word or root." Other surprising cognates include: cent- and hundred, and ward and guard. English is full of words which derive from the same original proto-Indo-European language, but came from different sources. Its these cognates which allow linguists to delve into the history and origins of our language.

Recently, scientists have uncovered root words (23 of them) which span an even larger set of language groups all over Europe, Asia, India, Africa, and into Alaska and go back as far as 15,000 years:

A research team led by Mark Pagel at the University of Reading in England has identified 23 “ultraconserved words” that have remained largely unchanged for 15,000 years. Words that sound and mean the same thing in different languages are called “cognates”. These are five words that have cognates in at least four of the seven Eurasiatic language families [including Altaic, Chukchi-Kamchatkan, Dravidian, Inuit-Yupik, Indo-European, Kartvelian, and Uralic]. —Washington Post, by Wilson Andrews and David Brown

An impressive finding that demonstrates just how interconnected the human species is and why we're able to communicate at all.

English is a wonderful, flexible, and utilitarian language with a fascinating history. For an accessible and enjoyable account of that history listen to the History of English Podcast.

Your, Bear

Arguing to a Wall

Image source (they sell posters of this image).

Practicing law is the art of convincing others to do something they don't want to do. Lawyers do that with words. In the best case, the lawyer uses facts and the law to persuade, then listens to opposing arguments and modifies his argument based on the merits of the rebuttal.

Sometimes the dispute is legitimate. The set of facts can be interpreted in multiple ways under the law and both parties have a point. For instance, a female employee complains that her boss has sexually harassed her. Her facts? He slapped her on the ass when she was bent to pick up a file. His story? He was swatting a fly and accidentally slapped her. Part of a lawyer's job is sorting the details and uncovering the truth.

In the end, what actually happened can be confusing or unclear and the case comes down to what a jury would believe if the case was put to them. At this point in the process, the rhetoric kicks into high gear — lawyers love to talk, to explain, to cajole. There is a point in nearly every case where one or both lawyers' behavior decays into that which the public expects from them: saying anything to win the case.

But at some point, good lawyers will refuse to engage in that cajoling. Those lawyers will explain the costs of continuing litigation (including their own fees), explain the pros and cons of continuing litigation with their clients, explain how the case is going to look to a jury, and suggest that the parties negotiate to a conclusion.

Whereas bad lawyers will encourage their client's prejudices and one-sided view of the case (thereby increasing their fees). The will "divorce knowledge from justice" as it were to prevail in the dispute. This is the point in those cases where I become demoralized and want to quit. But this is also the point in the case where the opponent reveals his weaknesses and is most vulnerable.

Knowledge which is divorced from justice, may be called cunning rather than wisdom.
Marcus Tullius Cicero 

A savvy opponent can use the increasing vitriol to his or her advantage. To do so, look for the following types of remarks:

• Focusing on the attorney's skill or experience rather than the facts or the law — an ad hominem attack.
• Arguing points which the opponent is not making — straw man.
• Arguing new points when old ones are refuted — moving the goal post.
• Making up two alternatives and saying the opponent's point fits into the losing alternative — false dichotomy.

This is a very short list of fallacies you can see in legal writing and reasoning; there are many more. I see these and others in my work all the time. And why are these important? Because illogical arguments are like an intoxicating vapor to a court or a jury. If left unchecked, they can allure the fact-finder into an easy answer — something they may be looking very hard for. However, a skilled attorney can dissipate the vapor by simply pointing out the fallacy — no judge wants to be seen as irrational.

Your honor, while counsel's opinion sounds satisfying, it suffers from a fatal flaw: it does not flow logically from the established facts....

With that preamble, the attorney can set the course straight and move forward maybe to win, maybe to lose, but on the facts and law and not on fallacy.

Its important to note that other logical fallacies are inherent in the law, and learning how to fight them is difficult and separates good from great lawyers: the appeal to authority (all law is based on legal precedent — here's one person's opinion about why appeal to authority is not a logical fallacy in the law; I have a different take (the law requires consistency) and will write about it later) and appeal to emotion (before a jury, the sympathetic party has a huge advantage and some say you can combat it; more in a future post).

Learn and combat the logical fallacies — Learn to avoid them in your own life.

—Your Bear

The Art of Speaking

When I was a kid, I really wanted to be an author. I read a lot: fantasy, science fiction, art history, science, encyclopedias (remember those?), the Bible, the dictionary, pretty much everything in our meager library. I had a lot of knowledge, but no experience. I cast about looking for a path. I used to walk alone in the woods giving oratory on any topic which interested me.

I used to take an iris stalk and pretend I was the fairy king. I used to take off my clothes and see how far I could get hiking naked (very far indeed) without being discovered. All the while imagining myself in a far away land, brimming with possibility. I felt ready for college when it approached. I felt ready for anything.

Rude awakening: college was not ready for me.

When I chose my college, I chose the most idyllic but incongruous setting imaginable for a northern kid: Hampden-Sydney College. An all-male perfunctory post-secondary educational institution for decaying southern aristocracy before they became nobody-but-well-paid politicians, mid-level managers at family companies, and leisure-class layabouts. I was not in my element. Nobody wanted a naked, iris-weilding fairy amongst them. But that is a story for another blog post. This post is about using language.

Hampden-Sydney's freshman curriculum did not contain classes in English, Composition, or Public Speaking. Instead, the class was called "Rhetoric." Rhetoric is the art of persuasion — winning people over to your side:

rhetoric (rĕt'ər-ĭk) n. 1.a. The art or study of using language effectively and persuasively. ... 2. Skill in using language effectively or persuasively. —American Heritage Dictionary.

The art of persuasion. But it is an interesting choice of title for a class. Anachronistic, almost lurid. Why? Because of this alternative definition:

3.b. Language that is elaborate, pretentious, insincere, or intellectually vacuous.

For a college so ready to disown a pupil, this later definition resounds in my head whenever I think about that class. It particularly resounds now that my career is all about "using language persuasively." I often remark that practicing law is the art of getting people to do what they don't want to do. It resounds when I use the word in its primary sense (the use of language), and it reminds me of another story.

One of the tasks with which lawyers are beset is conferring with opposing counsel. Ideally, counsel is dispassionate and polite when speaking to the other side directly. But that is often not the case.

I was in an extended battle with opposing counsel to retrieve certain information during the discovery process. She, as attorneys are wont to do, was hiding something; and I, similarly, was intrigued by the riddle. To keep the information from me, we were arguing about the meaning of a word. I asked her to "look beyond the rhetoric [sense 1.a.]" and realize that her client had the duty to provide the information sought.

That word set her off. "Rhetoric [sense 3.b.]? You think this is about rhetoric?" Indeed, I did, since we were talking about semantics [follow the link, sense 2].

I replied, "Well, its semantics, so yes, we're just arguing about the meaning of this term. I've defined it for you, so please respond according to my definition."

Image credit: Wikipedia.

Trust me when I tell you, do not assume that a juris doctor has a large vocabulary. Apparently "semantics" is also derisive to her because she promptly swore at me and hung up the telephone. (I subsequently won a motion to compel on the topic, by the way. A rhetorical victory for semantics.)

All this is to make my point: Its no wonder that the ancients thought words were magic. Your words often have meaning beyond what you've put behind them. Choose them judiciously and meagerly:

Whatever words we utter should be chosen with care for people will hear them and be influenced by them for good or ill. —Buddha

—Your Bear

Politics: Take Sides Gay-boys

Two things irk me (OK, many things irk me): voters who assert that there is no difference between the two parties and gay Republicans. The former because it is demonstrably untrue, the later because civil rights are the single most important difference between the two parties.

As to why the two parties are not different, I have some problems too. For instance, neither candidate is making global warming a priority, science is not sufficiently high in the platforms of either party, the new Affordable Healthcare Act does not go far enough, and the parties' views on tax policy are deceptively similar. Nevertheless, the list of why Obama is a great President is long and well-documented.

But I want to focus on why gay men should vote Democratic in this election.

First, we have to understand what the role of the President is in our federal government. The Constitution provides that:

The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years * * *

Those powers include (formatting and edited added):

• Being the Commander in Chief of the Army and Navy and of state Militia;
• Requiring the Opinion, in writing, of the principal Officer in each of the executive Departments;
• Granting Reprieves and Pardons;
• Making Treaties;
• Nominating and appointing Ambassadors, Judges of the supreme Court, and others;
• Giving the State of the Union address — Recommending to their Consideration such Measures as he shall judge necessary and expedient;
• Convening and Adjourning both Houses;
• Receiving Ambassadors and other public Ministers;
• Taking Care that the Laws be faithfully executed; and
• Commissioning all the Officers of the United States.

Nowhere does the Constitution provide the power to the president that he apparently has if you give only a cursory reading to the news. The President's role in lawmaking is largely limited to the setting policy. The President cannot control oil prices, cannot enact laws (there are certain non-constitutional powers, provided for by Congress), cannot levy or repeal taxes...the list of what he cannot do is much longer than the list of what he can do. In so many ways, it seems that the office of the President is an impotent role.

Yet, it is clearly not.

What the president can do is set the tone for domestic policy and pull the strings of foreign policy. And how does that affect gay rights? President Obama has advanced the rights of gay people to the extent he can in so many ways:

• Eviscerated DOMA, to the extent possible.
• Eviscerated Don't ask, don't tell; which is now repealed.
• Came out in support of gay marriage.
• Supported the rights of women against those who would destroy them.

These are the ones that readily come to mind. For a more complete list see: eQualityGiving.org.

Those who cannot remember the past are condemned to repeat it. -George Santayana

To some degree, its all rhetoric. To some degree, that is the President's job.

Your, Bear