A Foolish Consistency Blog

To Friends Everywhere

Thank you for your calls, emails, texts, and other messages to inquire about our safety. We watched the Marathon from home and, like you, watched the terrible events on television. We are just beginning to grasp the toll on our various communities–friends, neighbors, students, colleagues. It’s a beautiful sunny spring day overhung with horror, sadness, loss, anxiety, and the incomprehensibility of it all. Your concern provided comfort beyond measure.

Not So Simple Explanation

I don’t have time at the moment to capture my thoughts about the response to Aaron Swartz’s suicide, but I’m offended by the popular simple-minded explanation for his death: the government was prosecuting him, he committed suicide, therefore the government killed him. I’m not offended that his family and close friends embrace of this explanation–were he my son, my lover, my mentee I’m sure I would feel the same. I don’t know anything about Aaron Swartz that I’ve not read in the past week, but clearly that does not prevent me from commenting about the case–with a few exceptions (e.g. Larry Lessig) most of those embracing this binary view did not know him either.

Swartz wrote about his depression. Depressed people cannot think clearly and rationally about why they feel low–otherwise they could reason their way out of their depression.  Did the prosecution over-charge Swartz–that is, did it wring every possible criminal claim out of the facts? Assume it did, then ask: how many other criminal defendants currently awaiting trial in Massachusetts have also been over-charged? Two? Two hundred? Two thousand? 80%? The answer is, “a lot”–assuming one could reach agreement on what it means to over-charge. Defense lawyers always think their clients have been over-charged. Prosecutors always think the charges are appropriate. Prosecutors have considerable discretion–which may in fact be a problem, but like most things legal the solution is not to straightjacket discretion.

Over-charging and aggressive prosecution are not unique to this case. How many criminal defendants believe they are being prosecuted unfairly? How many kill themselves because of it?  Suicide is not a rational method for solving problems. Should the government not prosecute defendants who are clinically depressed?

I’ve already gone on longer than I intended. The point is that suicide of a depressed person cannot generally be explained with binary “but-for” analysis–a point that Eileen McNamara expresses more clearly than I have in this piece from WBURToday: Carmen Ortiz’s Case Didn’t “Kill” Aaron Swartz. Swartz’s death is a tragedy–because he was evidently a talented, passionate, and sensitive person whose gifts are now lost to the world due to mental illness. But I won’t blame the U.S. Attorney for his death.

Sidewalk Sam

Few of AFC’s younger readers are likely to know of Sidewalk Sam, although they may have seen his work–colorful, faithful chalk reproductions of iconic and lesser known paintings on sidewalks and plazas around Boston. Sidewalk has been creating his public art for more than 40 years. I came to Boston in 1971 so I cannot remember the city without the delight of stumbling upon his art. He is still working, despite a mid-1990’s accident which paralyzed his legs. Sidewalk is Robert Guillemin, a mid-1960’s graduate of Boston University’s College of Fine Arts, and BU Today has an article and video about his work and career.

Every Day is the Start of a New Year

2,307 days–from 8-Sep-06 to 1-Jan-13. Six years, three months, 24 days. 1,163 published posts–one post every two days (actually 1.98 days, or 47.52 hours). When I wrote that first post I had no idea how often I would post or how long I would stay with it. I planned to integrate A Foolish Consistency into my courses, without a clear vision of how that might happen. I imagined blog posts and comments extending spirited discussions outside the classroom, but I did not require students to read A Foolish Consistency. Compelled participation is low-quality participation. A few lively discussions ensued, some students used blog comments as a proxy for classroom participation (with my blessing), and some students continued to read and comment on my posts long after they left my courses.  As an extension of the classroom I give A Foolish Consistency a C grade–a 73. Just above C-.

If extending the classroom had been my only reason to write A Foolish Consistency I would have abandoned it long ago. Writing the blog helped me think through issues, indulge my sense of humor, advise prospective law students, and voice my views of matters large and small. Providing content was a chore from time to time, but every fallow period ended with a satisfying burst of posts. As a vehicle for self-expression the blog gets a solid A-. 91.

However–(you knew that was coming)–my production tailed off this fall. Teaching sixteen credits spread across six courses with five preps left little time non-course activities. I posted less often, and thought less often of posting. I was not driven to write. I was sanguine about failing to maintain my pace. I felt no expectation-driven pressure.

I’ve decided to change my relationship to A Foolish Consistency. How, I don’t know, but I want to move beyond self-imposed constraints on my voice. Knowing that students comprised most of my audience I held back, keeping distance between my posts and my self. I will no longer present this blog as an extension of the classroom. The aspect of A Foolish Consistency that I graded C- will exist no more. I don’t know what will replace it. Don’t expect an outpouring of my most private self. I’m changing the blog, but I’m not changing. I have no expectations about how often I’ll post or what voice I’ll use. But why not change? Announcing this on New Year’s Day is heavy-handed, but that’s mostly a matter of timing. Today’s the first day I’ve had time to write what I’ve been thinking about for weeks. As one of the smartest and most interesting people I met this semester wrote to me today, who says the new year is a time for resolutions anyway?  I can resolve to changing old ways whenever I want!

Happy New Year.

The Right Side of History

Sometimes I wonder how I would have responded to significant intellectual and social developments if I were alive when they were occurring. Would I have opposed the Catholic Church when it tried Galileo for heresy for believing our solar system revolved around the sun? Would I have embraced the Enlightenment ideals of reason and science? Would I have opposed slavery? Would I have rejected the United States’ isolationism of the 1930’s and seen the necessity of taking a stand against fascism? Would I have considered the Red Scare to be mass hysteria? Would I have supported the Civil Rights Movement?

I like to think my answer to all these questions would be yes, and not just because of self-flattery–although self-flattery is a significant factor. I tend to be skeptical, to distrust ideas based on faith, to disbelieve True Believers. Twenty years ago a former boss gave me The Emperor’s New Clothes as a holiday present–an apt gift, as I spent considerable time and effort poking holes in her pronouncements. It’s a good thing to recognize the inexorable social and intellectual forces. If the choice is between desperately hanging on to a disappearing past and understanding and dealing with society’s evolution, I want to come to terms with the future.

We (finally) saw Steven Speilberg’s Lincoln, which focuses on Congressional enactment of the 13th Amendment, which banned slavery. Viewed through a modern lens we see the anti-Amendment arguments for what they were–unadulterated racism, with a frosting of state rights rhetoric that serves mostly to mask that slavery was our Civil War’s bedrock issue. Few Americans today would make the anti-Amendment arguments in the film’s naked terms. (Although many continue to embrace the state rights perspective–see, e.g. the Texas monument to the Confederacy at the State House in Austin:



Romney’s abject toadying during the primaries to the Tea Party Taliban, Tax-Pledge Terrorists, and anti-progress ayatollahs, and various jaw-dropping far-right pronouncements throughout recent months, underscored that the Republican Party is controlled by those denying the future and holding on to the past like grim death. In her column titled A Lost Civilization Maureen Dowd echoed this theme when she referred to the Republican Party as “the first civilization in modern history to spiral the way of the Incas, Aztecs and Mayans.

The Mayans were right, as it turns out, when they predicted the world would end in 2012. It was just a select world: the G.O.P. universe of arrogant, uptight, entitled, bossy, retrogressive white guys. Just another vanishing tribe that fought the cultural and demographic tides of history.

Denying the existence of global warming, and the role of human agency in global warming, in the face of overwhelming scientific evidence1 . . .  asserting that creationism (by whatever name) is not faith-based religious doctrine but a valid scientific theory that should be taught in public schools alongside evolution . . . arguing that gun violence is caused by a variety of factors which do not include lack of regulation of firearms . . . urging the primacy of explicit religious belief as a criterion for public office . . . these beliefs are on the wrong side of history. How can one take the Republican  party seriously when it is in thrall to those who advocate such beliefs?

1. See, e.g. http://www.wunderground.com/resources/climate/928.asp

Shrinking the Pie

It’s a tough time to be a recent graduate of, attending, or applying to law school. The job market stinks, law school is expensive, and everyone is eager to share the latest news. Kaplan Test Prep reported recently that “51% of law schools have cut the size of the entering class” due to the difficult job market. Whether this is bad news depends on where you sit. Reduced enrolment benefits current students and graduates seeking their first jobs while raising the bar (no pun intended) for prospective students.