Claude Levi-Strauss Dies

Depressing French Climate

Claude Levi-Strauss died last week at the tender age of 100, which means he was born during the presidency of Theodore Roosevelt, not that Levi-Strauss would have cared: He was a Frenchman, not an American and Roosevelt had as little impact on his life as Bridget Bardot has had on mine.

Because it rains all the time in France, it is not easy for a Frenchman to be happy.  Living in the dank French climate was probably why Levi-Strauss wrote, “The world began without the human race and will certainly end without it.”

Come to think of it, the climate may well end up being the reason the world might end without humans.

But surely Levi-Strauss would have been happier had he followed Steve Martin’s advice to writers and moved to California.  According to Martin, a good dose of Pacific Standard Time will cheer up any writer. As an example Martin took a passage from the Czech writer Milan Kundera; one almost as depressing as Levi-Strauss’s:

Most people deceive themselves with a pair of faiths: they believe in eternal memory (of people, things, deeds, nations) and in redressibility (of deeds, mistakes, sins, wrongs).  Both are false faiths.  In reality the opposite is true: everything will be forgotten and nothing will be redressed.

Czechoslovakia’s climate is every bit as rainy and cloudy as France’s. Sitting in his sunny, happy southern Californian (PST) garden Martin rewrote Kundera’s paragraph into:

I feel pretty,
Oh so pretty,
I feel pretty, and witty, and bright.

Still, if Levi-Strauss was right, so too was Kundera and no amount of California sunshine will fix it.

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The 1949 photo of Paris in the rain was taken by Benjamen Chinn.  Steve Martin’s philosophy of writing can be found in his essay for The New Yorker entitled “Writing is Easy!” republished in Fierce Pajamas:  An Anthology of Humorous Writing From the New Yorker.

2009 World Series

I’m not much of a sports fan now, but I was when I was a child and  I’ve hated the New York Yankees ever since they beat my Milwaukee Braves in the 1958 World Series.  Not that I hold a grudge, you understand.

I was a baseball player myself as a child.  I played first base in Little League.  They put me there because I was too slow for anything else. Later I would learn that slow is sometimes good, as when lovemaking, drinking fine wine, and watching sunsets, but it is not good in baseball.

I also couldn’t hit worth beans, so I crouched really low in the hopes that the pitcher wouldn’t be able to find a strike zone. Because I was such a lousy hitter, I was at the end of the batting order.  One time I hit a single. After I got on base, our lead-off hitter walked, which sent me down to second base.

So there I was, standing on second base, a place that I had never been before, enjoying the view — you can see all kinds of things from second base that you can’t see anywhere else on a baseball diamond — when our next batter ripped a pitch into deep deep right field. We didn’t have a outfield fence so a well-hit ball just rolled on forever across the pasture, until it hit a cow patty or an outfielder caught up with it.

So I left second base and headed for third, as fast as my slow little legs would carry me.  But what should have been a three-run home run for my team turned out to be a triple play for the other team, because I was so slow that both my teammates behind me on the base path caught up with me at third base and you can’t have three runners on one base —  it’s against the rules — so all three of us were out and that was the end of the inning.  I don’t remember whether I ever got to third base again in my baseball career, but I suspect that was the day when, in my childish mind, it first dawned on me that I’d never play for the Braves or the Yankees and that I would need to find a different career.

Baseball is an elegiac sport.  If you don’t believe me, rent the movie “Field of Dreams.”  And, if there is a heaven and if I get there, I’ll take Jenny DiMaggio, our ball-playing Border collie, to see the Yankees play the Braves. Every game will be an all-time, all-star game.  Derek Jeter and Tony Kubek will turn double plays for the Yankees, throwing to Lou Gehrig at first.  Joe DiMaggio, Mickey Mantle and Babe Ruth will watch as Henry Aaron and Eddie Mathews lift home runs over their heads into the stands.  I’ll be able to hear Yogi Berra’s jokes behind home plate as Whitey Ford and Mariano Rivera throw pitches past lesser Braves’ batters and Joe Torre and Del Crandall will take turns catching for Warren Spahn, Lew Burdette, and Greg Maddux.  Red Barber will call the games and Red Smith will write about them.             .

And the games will be played, as baseball games should be, on sunny afternoons.  Night games, caused by the baleful influence of television and all the money it brings, will be a thing of the distant past.

Oh, one more thing: Since it will be heaven, the Yankees will lose, at least some of the time.

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For more on the 2009 World Series I recommend this from Thomas Boswell of the Washington Post.

The Lord’s Prayer

Christians are taught to pray the Lord’s Prayer which begins, “Our Father, who art in heaven.”  In other words, Christians pray to an authority figure who lives somewhere else, a place no one can even visit in this life. The prayer signals that this authority figure is insecure and needs lots of praise.  So Christians must first remind him that his name is “hallowed”; that it is His will that must be done; and that His is the kingdom, the power, and the glory for ever and ever. In fact, of the 69 words in this beautiful prose-poem of prayer, only 31 words are humans asking anything of this supernatural power and all but seven of those beg this authority figure for abstract forgiveness for our evil, fallen ways. The only material thing asked for is a piece of bread.

Navajos pray a little differently. For them, I suspect, heaven is right here, right now and their holy people a little more self-confident and less stern. This is how Navajos pray:

In the house made of dawn,
In the house made of evening twilight,
In the house made of dark cloud and rain
In beauty I walk.

With beauty before and behind me,
With beauty below and above,
With beauty all around me, I walk

Remind me: Which is the “primitive”  religion?

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The photo of the Navajo sandpainting (ca. 1900) comes from the Library of Congress’s “American Memory” web site.

Your Car Insurance

IN THE SURREAL COURT OF NEW MEXICO

Benson, et.al., Plaintiffs v. All-Hands Insurance Co., Defendant.

JUSTICE HEMLOCK delivered the opinion of the Court.

In what turned out not to be a very good idea, Mark Benson decided to go have a drink with his friend Bill Edmunson.  Driving in Benson’s car, they headed to Angelino’s bar, about ten miles south of Troutsville, New Mexico, the small town in which they lived.

They had several beers and then several more.  When the time came to leave, both were desperately drunk.  Somehow, in their alcohol-induced stupor, they decided that Edmunson was in better shape to drive, so Benson gave him the keys to his car and sat in the front passenger seat.

About three miles up the road, Edmunson drove Benson’s car into a stately — and innocent — Ponderosa Pine tree, causing massive damage to the car and personal injuries to both its drunken inhabitants. Benson’s injuries were minor, but Edmunson’s were significant.  Nothing in the record before us discloses what happened to the tree, but trees lack standing to sue, so that doesn’t matter.  See Sierra Club v. Morton, 405 U.S. 727 (1972), Douglas, J., dissenting at 741 et seq.

Benson had no car insurance.  Edmunson did, but they were not in Edmunson’s car; they were in Benson’s.  All-Hands Insurance Corporation was Edmunson’s insurer.  He also had uninsured motorist coverage as a part of that All-Hands policy. Benson, the one with no insurance, sued All-Hands for his injuries and the damage to his car.  Edmunson piled on, suing All-Hands for his injuries.  And they sued each other too.

Confronted with two drunks, both demanding money from it, the insurance company balked. The law required Benson to have insurance on his car and he didn’t.  Edmunson was also guilty.  He drove an uninsured car.  (The learned trial judge was absolutely right to ignore his pleas that he didn’t know that the car was uninsured.  The statute is clear: “No person shall drive an uninsured motor vehicle.”  Ignorance is no excuse.)

The trial judge agreed with All-Hands and dismissed the claims against it, leaving the two impecunious drunks to duke it out alone. This appeal followed.

A.

We begin with the scofflaw Benson; required by state law to have insurance, he had none. But that doesn’t answer the question before us: Can he recover for his injuries from Edmunson’s insurance company?  Edmunson complied with the law and bought insurance.  That insurance policy covered Edmonson from any liability he might have to other people.  Benson is such a person under Edmunson’s policy and, if Edmunson caused his damages, he can recover from All-Hands.

So Benson can recover his minor damages from Edmunson and All-Hands has to pay.  What about Edmunson?  Can he recover for his significant injuries?

B.

Edmunson’s policy insured anyone to whom he might become liable.  But Edmunson can’t be liable to himself for any number of reasons, not the least of which is that, if he sued himself, the case caption would be Edmunson v. Edmunson and lawyers would assume it was a divorce case and not read our opinion and what good are our opinions if nobody reads them? See generally,  Winchester, “Freedom of Speech, Corporations, and Cats.”

Edmunson’s insurance policy does not protect him from his own negligence, it only protects others from his negligence. Any other outcome would allow Edmunson to sue himself and he can’t do that.  This court does not rewrite contracts and this insurance contract says that Edmunson is not insured against himself.

Expecting that ruling, Edmunson has another argument in his quiver: If he isn’t insured under his primary policy, that means he is “uninsured” and can therefore recover from his “Uninsured Motorist” coverage!  That argument fares as well as the olive in my martini will this evening.

New Mexico, Edmunson says, has a strong public policy underlying its requirement that everybody ought to have coverage against uninsured drivers.  He has the gall to quote our own words to us:

In New Mexico, it is statutorily mandated that insurance companies include in     automobile policies uninsured coverage. . . . See § 66-5-301(A), (C). This requirement embodies a strong public policy “to expand insurance coverage and to protect individual members of the public against the hazard of culpable uninsured motorists.” See Romero v. Dairyland Ins. Co., 111 N.M. 154, 156, 803 P.2d 243, 245 (1990).

Well.  It is true that Edmunson was uninsured against his own bad driving but that is his fault, no one else’s.  We presume that All-Hands would have sold him insurance against himself had he offered to pay for it. (In states with “no-fault” auto insurance laws, All-Hands sells exactly that kind of policy called, “Personal Injury Protection.”) Edmunson cannot be heard to complain about the law in New Mexico.  If he doesn’t like it here, he can move.  We don’t care.

Besides, All-Hands is a corporation and Mr. Edmunson is merely a natural person.  Corporations are creatures of the law.  We must treat them every bit as well — if not better —  as we treat real persons. Mr. Edmunson is one of God’s creatures and we leave it to God to decide what to do with him.  All-Hands Corporation is one of our creations and we take care of our own.  Mr. Edmunson cannot recover anything from All-Hands even though he’s the one who paid for the insurance and complied with the law.

We know that the laity may grumble about this result, thinking it unfair.  After all, we are punishing Edmunson, who obeyed the law and rewarding the scofflaw Benson, who didn’t. But the law follows logic where ever it leads.  Justice Holmes twice wrote that the life of the law has not been logic but experience.  Balderdash!  (Justice Holmes is overrated anyway.  Wrong about logic, he was also wrong about many other things.  For examples see, Buck v. Bell (mandatory sterilization),  Adkins v. Childrens’ Hospital (women), Schenk v. U.S. (arson), and especially wrong about corporations and illegal monopolization, American Banana Co. v. United Fruit.)

The law and logic of this case flow on like the Mississippi in full flood, inexorable, irresistible, but not always benignant, and we go where it takes us.

AFFIRMED IN PART, REVERSED IN PART.

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DISCLAIMER
The persons (natural and unnatural) portrayed in this fake judicial opinion are fictitious.  Any resemblance between them and any living person is coincidental.  The law described in the opinion may not be the law in your state, however, if you think you are covered by your own insurance policy for your own negligent driving, go read your policy and think again.

Surviving Dangerous Vacations

We’re back from our dangerous vacation in the Rocky Mountains.  While enduring the awful perils described in the last post we also renewed an old friendship, began new ones, fished and birded, ate well, read, slept, and hiked.

And were reminded, before moon rise each evening, that the night sky is gray.  It is the evergreens that are black.  William Rose Benet may have been remembering that when he wrote:

Ghost Lake’s a still lake, a cold lake and deep.
Faint in its shadows a far sound whirrs.
Black stand the ranks of its sentinel firs.

Or Robert Service when he wrote,

We sleep in the sleep of ages, the bleak, barbarian pines;
. . . .On the flanks of the storm-gored ridges are our black battalions massed;

After moon rise, it is the shadows of the evergreens that are blackest.  Not much can be better than listening to two Great Horned Owls calling to each other across a canyon full of black trees and blacker shadows. Unless the view includes a few white-barked Aspen gleaming in the moonlight.  That would be better and that was what we had.

Peaceful, serene moments like that are what makes returning from vacations complicated.  Of course, it is easier to come back if you have some Border Collies ecstatic to see you and some fresh green chile in the refrigerator, but ordinary life with its stresses and challenges awaits.

Some vacations can even trigger existential crises.  Our friend at Wild Resiliency is enduring one of those and writing eloquently about it.  It’s a good thing he is resilient.

Sooner or later, the serenity you achieved on the vacation retreats. Bills need to be paid, the phone rings with somebody on the other end wanting money, a traffic light takes forever to change, the neighbor fires up his lawn mower or — in our case — his hobby bulldozer, some politician somewhere does something disagreeable, the evening news reports on deaths of soldiers in Iraq and Afghanistan, the price of gasoline goes up.  All that makes it hard to hold on to the marvelous tranquility that a successful vacation brings.

More on that later but now I have to read all the health care bills which I understand, from my friends on the right, contain provisions for death panels for humans and mandatory puppy euthanasia.

Puppies to be Euthanized under Obamacare

But  there is some good news: According to Gail Collins of The New York Times, the Large Hadron Collider isn’t working yet, so at least I don’t have to worry about being sucked into a black hole. Nor have I had any of those “latrine issues” that the guest ranch made me promise not to sue them for.

A Dangerous Summer Vacation

We’re on vacation this week, at a guest ranch in the American west.  The ranch provides a myriad of activities, including horse riding, skeet shooting, hiking, and other recreational activities. We’re here for the fly fishing.  And to write The Great American Novel.  And make world-famous, expensive photographic art.  And read War and Peace.

But, we’re only here for a week, so there isn’t much time.

So you can imagine our distress when we arrived at the guest ranch to begin our week-long sabbatical and were confronted with a four-page, single-spaced, small-printed document entitled “Guest Ranch Participant Release of Liability, Waiver of Claims, Assumption of Risks and Indemnity Agreement.”  Seriously.  That is the thing’s name and it is almost 8000 words long! We were supposed to read it, initial every page, and sign it, before checking in.  And they already had our money.

I suppose the owners of the ranch hired a lawyer to write this document.  That is hardly ever a good idea.  We lawyers always use too many words to say too little.  It’s a way of life.  And the lawyer they hired appears to be one of the worst of the specimens.

Although legally useless, the document is diverting and educational.  For instance, in it I learn that when I am fly fishing on the river that flows through the property, it is possible that I may “slip and fall” while fishing or “wading in the creeks or rivers.”  Since that hasn’t happened to me above 400 times in my life, I was glad to learn of that danger.  I’ll be more careful in the future.  (I never knew that I could sue a guest ranch if I fell in their river but I know now.  Woe betide the next ranch whose water I fall in.)

I learn lots of other stuff too.  For instance, I discover that, “firearms” are “guns” which have “inherent risks” including the danger of being injured or killed when they are “discharged.”  (I assume the lawyer meant “shot” instead of “discharged.”  That is what they teach you at law school.  Never use a four-letter word if you can think of a ten-letter one.)  Actually, according to the lawyer, it is not the gun that is dangerous, it is the ammunition that can “injure or kill” you.  Something else that can kill you is, “. . . another’s’ [sic] use of the firearms.”

That is something else they teach you in law school: If you are not sure where to put an apostrophe, put one in each place where it might belong.  That is an entire law school course: “Promiscuous Apostrophes.”

We are also to be on the outlook while at the ranch for, “reptiles that may run.”  Those, you see, might scare the horses.  They might scare me too.  I thought dinosaurs were extinct.  But perhaps I’ve stumbled into “The Valley that Time Forgot.”  Which, when you think about it, might be a good title for my book.

The ranch also wants me to know that it is not responsible for “acts, occurrences or elements of nature” which include thunder and the dreaded “lightening.” [sic] As Mark Twain once wrote, “The difference between the right word and the almost right word is the difference between the lightning bug and lightning.” But they don’t teach you that in law school.

As for “lightening,” there is no danger I’ll suffer from that while here; the food is delicious and copious. And, since it is conspicuously omitted as something I am releasing them from, I conclude that the ranch agrees to be liable to me if I get struck by lightning while I am here.

Large, dangerous prey

But the real value in the document is not legal — as I said, it is useless for that — it’s real value lies in the realm of metaphysics, for in the document we learn the true nature of “humanity.”  But let the thing speak for itself:

I understand and acknowledge that horseback riding is the only sport where one much smaller, weaker predator animal (human) tries to impose its will on, and become a unit of movement with another much larger stronger prey animal with a mind of its own(horse) and each has a limited understanding of the other.

Well.

Never mind that the lawyer puts commas in where they don’t belong and omits them where they do, just feast on the wealth of natural philosophy in that sentence.  We’re small and weak but we’re predators and the ranch horses are our prey. When was the last time you dined on horse meat?  Think of what you are missing.

The ranch has a “complimentary” shooting on Thursday.  I think I’ll shoot a horse and ask the chef to prepare it for my dinner.

If I stay that long.  I had no idea how much there was to be frightened about here in this placid, serene, and untroubled mountain valley.  I may ask for my money back and go somewhere safe.  Like a mountain valley in Afghanistan.

Real Fireworks

Here, for your 4th of July entertainment, are some real fireworks, photographed from space.  (The segment is silent and lasts only a few seconds.)  I doubt the Founding Fathers foresaw a space program in the United States 233 years ago.

Webcasting from Court

Probably you believe that the federal courts of the United States are public operations.  And, to a limited extent, they are.  If you go to a federal courthouse, they are going to let you in; assuming you clear security, which is akin to the security checks at airports.  If any trials or hearings are in process you are allowed to go into the courtroom, sit quietly, and listen.

But suppose you are interested in a court proceeding in Boston and you live in San Francisco.  What then?  Suppose, for instance, you are a college student — one of those sued by the record companies for allegedly illegal downloading of music — and you want to listen or watch the hearings in the lawsuit that Sony brought against alleged college miscreants, but you can’t afford to jet across the country to attend in person.  You should be able to watch it on the internet, right?  It’s a public proceeding after all, in your United States Court system, paid for with your tax dollars. It would be simple and inexpensive for a student attending college in Boston to take a webcam to the courthouse and broadcast the proceeding over the web.

You would be perfectly reasonable and logical if you thought that way, but you haven’t accounted for the institutional and intellectual arrogance of federal judges.  They have rules against that sort of thing.

In fact, federal judges have rules against all sorts of things but today we’ll content ourselves with the almost universal rule that no one is allowed to broadcast anything that happens in their courtrooms.  The federal judges worry that someone – they don’t say who, but you can guess – might be “intimidated” by cameras in the courtroom, even little tiny webcams.

There are exceptions, of course, but the majority of today’s federal judges are white, middle and upper class males, born and raised in the Republican party, and conservative by nature. [1] They are not often the first members of our society to embrace new ideas, new technologies.

One exception is the honorable Nancy Gertner, a federal district judge in Massachusetts and the first judge from that state to operate a blog. The case that Sony brought against alleged music pirates was assigned to her.  All cases, including Sony’s, have pre-trial matters that the assigned judge must resolve before proceeding to a trial.  Most such issues are raised by the parties to the lawsuits by motions.  Many federal judges still have hearings on those motions in their courtrooms.  Lawyers for the parties stand up on their hind legs and argue the motions, the judge listens, and renders a decision on each motion, either right then in person or later, in writing.

Judge Gertner scheduled such a pre-trial motion hearing in the Sony case.  One of the college students who Sony has sued asked the judge for permission for the hearing to be webcast and Judge Gertner agreed.

But, like I said, federal judges have rules against that sort of thing.  Besides, Sony did not want you or those college students to listen to the hearing for one reason or another, so it appealed Judge Gertner’s decision to the First Circuit Court of Appeals which outranks Judge Gertner.

The three judges on the First Circuit to whom the case was assigned were not amused.  As I said, they have rules against this sort of thing.

Here is some of what they had to say.

While the new technology characteristic of the Information Age may call for the replotting of some boundaries, the venerable right of members of the public to attend federal court proceedings is far removed from an imagined entitlement to view court proceedings remotely on a computer screen.

In other words, you can go to the court, but the court is not coming to you.

We are mindful that good arguments can be made for and against the webcasting of civil cases. We are also mindful that emerging technologies eventually may change the way in which information — including information about court cases — historically has been imparted.

Historically, the way information about court cases was imparted to the public was through newspapers.  Period.  Even the opinions of the courts were not widely available, although has changed.

Yet, this is not a case about free speech writ large, nor about the guaranty of a fair trial, nor about any cognizable constitutional right of public access to the courts. Our purview here is much more confined: this is a society dedicated to the rule of law; and if a controlling rule, properly interpreted, closes federal courtrooms in Massachusetts to webcasting and other forms of broadcasting (whether over the air or via the Internet), we are bound to enforce that rule. In the last analysis, this boils down to a case about the governance of the federal courts.

The court acknowledges the “ubiquity” of internet webcasting, but all broadcasting of federal court proceedings is and remains forbidden.  They have their rules and they like them.
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You can read the entire opinion of the First Circuit Court of Appeals here.

Warning: the opinion was written by Judge Selya of that court.  Judge Selya, appointed to the court by Ronald Reagan, is one of the best writers on the federal bench today, but he is given to using very large, archaic words no longer in common use even among lawyers. To save you time, here are the three stand outs from this opinion.

1. “Impuissant” – weak, lacking strength or power
2. “Perscrutation” – a thorough, diligent inquiry
3. “Sockdolager” – a conclusive blow or remark.

Two of the three judges on the case were appointed by President Reagan, the third by President Clinton.

[1] Disclosure – Even though I am a white male myself, I have spent much time arguing cases in front of federal judges with whom I have often disagreed, so I may not be the most objective observer of the species.

Happy Easter Weekend

The first thunderstorm and the first hummingbird of the season arrived this morning.  It is a fine day here and, we hope, where you are as well.

A Vulture Flies

A vulture flying north for the summer, decided to take an airplane instead of doing it himself. His experiments indicated that while airplanes use far more carbon calories than vultures; they use far fewer vulture-calories. Knowing that they don’t serve vulture food on airplanes, the vulture brought with him a dead armadillo to snack on. The ticket clerk asked, “Do you want me to check that for you?” “No need,” said the vulture, “it’s carrion.”