Saturday, January 06, 2007

Blog Tag -- Five Things about Me

Tim van Gelder tagged me in a kind of blog-network pyramid scheme: relate five things about yourself that others may not know, then tag five others. Although this feels a bit like the sort of thing that junior high school (middle school) students do, I cannot resist the siren call of a person as eminent as Tim van Gelder. So here goes:
1. In 1905 the Czar of Russia exiled my maternal grandfather from Latvia to St. Petersburg (Russia!). This exile apparently was not a fate worse than death. My grandfather met my grandmother (a Polish woman), who gave birth to my mother there, in St. Petersburg, in 1910.

2. In my sophomore or junior year in college I proclaimed that fuzziness was my first principle -- but I said that I should not say this (about fuzzines) too clearly. (Documentary proof of this fuzzy proclamation is on file with the author.) A couple of years later Lotfi Zadeh published his seminal paper on fuzzy sets. See Pragya Agarwal, Lotfi Zadeh: Fuzzy logic-Incoporating Real-World Vagueness. Zadeh's proclamations, I admit, were more profound (and more influential) than mine. Still, ...

3. In my childhood homes my family (mother, daughter, son [i.e., Peter T.]) did not have a telephone or a television. We first got a radio when I was in the 10th or 11th grade in high school. I did not have the regular use of a telephone until I went to college. I did not own a television set until after I graduated from law school. I spent a lot of time in the Columbus, Ohio, public library, whose construction was financed by Andrew Carnegie.

4. My second car was a 1936 Packard. I acquired it in the summer after my graduation from high school. I was forced to sell the car. I sold it for about $100 to Jim Elliot, who became a world-famous astronomer. (He discovered the rings of Uranus.) Moral: astronmers are smarter -- or luckier -- than lawyers.

5. My mother tried to teach Jim Elliot spoken Russian. Moral: astronomers should stick to astronomy.

Now tagged:
1. David Kaye
2. Priit Parmakson (who maintains a quasi-blog)
3. Edwward Cheng
4. David Faigman
5. Joseph Sanders

Friday, January 05, 2007

In the Movies: Japan's Criminal Justice System

This new film -- Soredemo Boku wa Yattenai (Even So, I Didn't Do It) -- by Masayuki Suo sounds very interesting: Mark Schilling, Portrait of a Dodgy Legal System, Japan Times Online (Jan. 5, 2007). Schilling writes,
The [last part] of the film follows the usual pattern of a courtroom drama, but with an unusual devotion to detail, so much so that "Soredemo" serves as an excellent introduction to Japanese court procedure. The approach is not without its dryness, as one hearing follows the next, through a dense haze of legalese. But Suo uses it to demonstrate, with quietly devastating thoroughness, the system's rigidities and contradictions.

Wednesday, January 03, 2007

Our Indifference to Tyrants

Anne Applebaum, The Totalitarian Template: Saddam's place in the pantheon of modern dictators, Slate (Jan. 2, 2007):
...Saddam kept his people in a state of constant terror, as did Hitler and Stalin at the height of their powers. Iraqi writer Kanan Makiya, whose book Republic of Fear remains the definitive account of Saddam's Iraq, estimates that in 1980, one-fifth of the economically active Iraqi labor force was a member of the army, the political militias, the secret police, or the police. One in five people, in other words, was employed to carry out institutional violence.

[I]f Saddam's life and death prove anything, it is that in the 90-odd years since modern totalitarianism first emerged in Europe, neither the United States nor anyone else has ever learned to understand such regimes or even to recognize them for what they are. When Hitler first emerged, the outside world's first instinct was to appease him. When Stalin first emerged, Americans and Europeans admired his economic planning. When Saddam first emerged, our initial impulse was to ignore him—and then, since he seemed a useful counterweight to the Ayatollah Khomeini's Iran, to support him. During his horrific and unnecessary war with Iran, millions of Iraqis and Iranians died—and the United States, reckoning Iran the greater threat, backed Saddam with weapons and intelligence. Germany, France, Russia, and others also saw Saddam as a useful trading partner and, later, as a source of corrupt profits.


... Write that Saddam really was an evil man, and you'll be thought an apologist for George Bush. Write that Saddam's regime resembled Stalin's, and you'll be called a right-wing ideologue.

... Maybe someday Americans or Europeans will ... find ways to discuss Saddam as something other than a pawn in their own games or as a figure in their own political debates. But I doubt it.

Now and then we should all re-read Solzhenitsyn's One Day in the Life of Ivan Denisovitch. And before we in the West become too smug, we should recall how discomfited we were when Solzhenitsyn castigated us for our moral indifference. See Alexander Solzhenitsyn's Address, Harvard Class Day Afternoon Exercises, Thursday, June 8, 1978. We should despise dictators not only when they are our enemies but also when they want to befriend us.

Tuesday, January 02, 2007

Relations between Lay and Professional Judges in Germany

See the following fascinating article on the relationships between lay and professional judges in Germany: Stefan Machura, Interaction between lay assessors and professional judges in German mixed courts, Vol. 72 –2001/1-2, Revue internationale de droit pĂ©nal

I regret to report that this article documents the thoroughgoing dominance of lay judges in mixed courts by professional judges. This is in itself not surprising. What is interesting about the article is its very careful and detailed account of the mechanisms by which this judicial dominance is maintained. For example, professional judges, though legally required to give the lay judges an opportunity to ask questions, do so in a way that does not encourage the lay judges to ask questions; and, in any event, the lay judges are usually not familiar with the case file and can't ask useful questions even if they might want to do so. But read the article, a fascinating statistical-sociological study! I may make it required reading in one or more of my courses.

Questioning of Witnesses in Japan by Lay Judges

Setsuko Kamiya, Mansfield Center eyes lay judge debut, Quasi-jury system offers insights for U.S., model for Asia, scholars say, Japan Times (Dec. 29, 2006):
In the U.S. there is an ongoing debate over whether to allow jurors to question witnesses. Under Japan's new system, lay judges will be allowed to pose questions.
I see that some Americans now hope to teach Japanese lawyers the art of (American?) trial advocacy. Id. Is it clear that transmission of this American(?) art to Japan -- or every part of this American(?) art -- is a good thing? Are we witnessing a bit of cultural imperialism or chauvinism? (I ask this question without prejudging the answer.) Does American-style advocacy fit in a system in which (presumably) the main responsibility for interrogating witnesses will remain with judges (professional and lay) rather than with counsel? Or do the American teachers implicitly hope or assume that lawyers rather than judges will come to have the main responsibility for interrogating witnesses? I hope the Japanese customers of American legal pedagogues are aware of the choice they might end up making if they buy the American legal goods that are apparently being peddled.