Monthly Archives: December 2020

This is How You Destroy an Institution

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Within the past several years, the Thought Police have cast an ever-wider-ranging eye over human activity for them to control. The pretext of “hate speech” is among their favorite gambits. When you press on them, however, you find that “hate speech” is a verbal shorthand for “someone saying something that I disagree with”.

The objective of the “hate speech” hawks is to control the public square, by which is meant that societal space where people interact and communicate with each other. In some contexts that is in fact a physical place, such as a college campus. In others it is a purely social construct, such as the internet or the pages of magazines or the media of mass communications. American colleges being both socially and academically dominated by marxists in all but name, the attacks on freedom of expression first gained traction there. Over the past decade or more we’ve seen non-left-extremist groups de-certified, their ability to recruit new members or to disseminate their thinking confined to “free speech zones,” their campus newspapers routinely stolen from the racks, their few supporters among the faculty hounded from employment. It’s all very Bolshevik; you can find much the same tactics and expressions in the pages of Solzhenitsyn’s GuLAG Archipelago.

But why, Gentle Reader will ask, do the left-extremists want to control the public square? The answer is on two levels, one destructive and the other constructive. In the destructive sense, by controlling the public square, you atomize society. Individual humans are, when you get down to it, pretty vulnerable. Even the fairly wealthy. If you truly, genuinely took the raw physical force that a country of 330-plus million can generate and brought it to bear upon the skin of any individual, however wealthy or otherwise influential he might be, that person’s existence can be destroyed in fairly short order. Up to and including the most literal sense of that word. Among the favored tactics of the totalitarians of all stripes is to create mutual suspicion among all members of society. A society of informers is a society in which there is no trust. And without trust among wide swathes of society there can be no organization to resist the power exercised by the few over the many (which is, as has long been recognized, the very essence of “government”). The second, constructive sense in which leftists want to control the public square is that by doing so they control the groupings into which society will always develop under any system. In Germany under National Socialism, for example, it was called the “Gleichschaltung”; everyone in every field of human activity was herded into groupings that were created, sponsored, and of course controlled by the government. The Soviets did essentially the same thing.

Gentle Reader will of course immediately ask the follow-on question: Why would exactly leftists want to atomize existing society and then control the formation and actions of the groupings into which society develops in place of those now-destroyed relationships? Fair question. The answer likewise has two components. The first has to do with the nature of leftism as a collectivist religion. Its essence is using the physical coercive power of government to compel people to act in ways that they never would choose to act in the absence of that coercion. In this way it is the diametric opposite of the free market. As was recognized as long ago as the 1770s by Adam Smith, the core societal benefit of a free market is that each of us, even acting from our most self-centered, selfish motives, must, in order to advance himself under the conditions of a free market (no one compelled to trade, no one prohibited from trading, no one permitted to defraud or use force against another) act in ways that are beneficial to other humans, because if we don’t, they won’t trade with us. Leftism compels people to act against their own interests, or against the interests of others, to accomplish goals that are not of their own choosing, through courses of action that are not chosen by them. The second level of the answer to why the left-extremists want that degree of control over us is that no government, not even with all the surveillance technology at its disposal now, can penetrate so deeply into the daily existence of its subjects as to control in detail their every action, their every word, their every relationship. By herding its subjects into groups it controls, however, it can leverage the ability of each of us to monitor each other. Government can out-source its totalitarian project to us individual subjects.

The new name for the left-extremists’ project is “cancel culture”. A mob of “woke” agitators converges on a small set of decision-makers in an institution and screeches until whoever it is who dared to say, or even to permit to be said, something they disagree with, collapses under the pressure. It’s a very effective tactic and has claimed some prominent scalps at some very powerful institutions, up to and including The New York Times. Their opinion editor had the temerity to permit a sitting United States Senator, Tom Cotton of Arkansas, to publish an op-ed (sort of like what one does on the editorial page, yes?). The junior staffers staged a revolt. Instead of summarily firing them all, as should have happened, the Gray Lady canned her opinion editor.

The CEO of Goya Foods was so imprudent as to speak favorably about Donald Trump after a meeting with him (and other business heavy-hitters of Latin American background). The Communist representative from New York City, Alexandria Ocasio-Cortez (“AOC” to both friend and foe . . . how we have fallen; once upon a time titans were known by their initials: FDR, JFK, LBJ, and now we have someone whose principal accomplishment before getting elected was not buggering up a drink order for Table 3 in the back) immediately squawked and shrieked that Goya Foods must be punished. Boycotted. What happened instead is that the company saw its sales increase — according to the CEO’s statement — by 1,000%. So now AOC has been awarded — on a purely honorary basis — as “employee of the month” by the corporation.

Lather, rinse, repeat, across area after area after area.

But refried beans and the recycled Bolshevik tripe pushed by the NYT aren’t really my particular concern.

Watching the destruction of the Rule of Law in my own country is.

Some time ago, the American Bar Association, which long ago abandoned any effort to hide its left-extremist politics, promulgated a proposed new subsection to part of its Model Rules of Professional Conduct. For those fortunate and productive enough not to be lawyers, the ABA’s model rules (commonly known as the “RPC”) are the most widely-adopted system of rules governing the conduct of lawyers, both in and out of the courtroom, both while practicing law and even outside the narrow confines of what counts as practicing law. So far forget yourself as to get caught soliciting sex with underage girls online, and you’re going to lose your law license for a violation of the RPC. Get caught cheating on your own taxes (the Great American Indoor Sport) and you’re likewise going to become a Former Lawyer in a hurry.

When a complaint is made that a lawyer has violated some portion of the RPC, what happens is that state’s disciplinary apparatus swings into action. [Here I should note that the disciplinary forces — at least their in-house staff — of state bars are seldom, very seldom made up of the upper reaches of the talent pool. My own personal experience of my state’s version has been that they are of exceedingly modest mental attainment. In fact, the single most stupid (and himself unethical) lawyer I have ever encountered was a senior disciplinary counsel.] Documents are demanded, tight time lines for responses are required, enormous effort is expended by the respondent lawyer. Many — in fact, most — complaints are dismissed after initial investigation; they tend to be filed by discontented clients who are unhappy about how their representation turned out (full disclosure: that’s pretty much exactly what happened to me on the two occasions I’ve had a complaint filed: both dismissed after initial investigation, although the second time around I don’t know what would have become of me if I hadn’t had about 1,200 pages of e-mails back and forth between myself and my former client, with the benefit of which I was able to prove that almost everything he had to say, other than our names and dates of representation, was an outright lie). Domestic law and personal injury law are very productive of such complaints, and to their credit, the investigators usually figure it out. But that does not save the respondent lawyer a bit of effort, nor does he get his hours upon hours upon hours back, and he still has to respond affirmatively on his malpractice insurance renewals that he has been the subject of a complaint of ethical misconduct. With corresponding effect on the premiums to be paid.

If the complaint is not dismissed but rather goes forward, then there is usually a series of punishments that can be imposed if the lawyer ends up on the losing end of the process. Private admonitions, cautionary letters, public censures, suspension either temporary or indefinite, and of course the ultimate sanction of disbarment. Some states will permit a disbarred lawyer to apply for reinstatement after a period of time; in others, if you so far forget yourself as to be disbarred, then you will never again be a lawyer in that state (or, as a practical matter, any other state, since part of your admission in some hypothetical New State will involve an inquiry with the disciplinary body of the state which disbarred you). Even a punishment which does not involve an interruption of one’s ability to practice law can be devastating to one’s practice, especially in a smaller locale. Who wants to hire the lawyer whose public censure was published in all the local newspapers, after all?

Even winning, however, can be only moderately less devastating than losing. As they say in other contexts: The process is the punishment.

The take-away is that a complaint of a violation of the RPC (or whatever set of rules one’s state uses) is not an issue of minor inconvenience. I am not aware of any other occupation whose governing authorities routinely require the public professional humiliation of its participants for transgressions of whatever set of laws apply to that occupation.

Which is why when the ABA promulgated new Section 8.4(g) of the model RPC, it sent a chill up the spine of every lawyer who cherishes his freedom of expression. The current version of that model rule provides that it is professional misconduct to —

“(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.”

The same amendment added official comments (which are invariably treated by state high courts adopting the RPC as having near-controlling authority over the interpretation and application of the RPC), thusly —

“[3] Discrimination and harassment by lawyers in violation of paragraph (g) undermine confidence in the legal profession and the legal system. Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others. Harassment includes sexual harassment and derogatory or demeaning verbal or physical conduct. Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The substantive law of antidiscrimination and anti-harassment statutes and case law may guide application of paragraph (g).

[4] Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. Lawyers may engage in conduct undertaken to promote diversity and inclusion without violating this Rule by, for example, implementing initiatives aimed at recruiting, hiring, retaining and advancing diverse employees or sponsoring diverse law student organizations.”

Notice what is covered: “harmful” “verbal or physical conduct”. that “manifests bias or prejudice towards others”. “Harassment” includes “derogatory or demeaning verbal or physical conduct”. And the lawyer must only “reasonably know” that his “verbal conduct” constitutes such. Notice what is not required to violate the rule: That such “verbal conduct” have actually caused a legally compensable injury to the person who actually, you know, hears the “verbal conduct”. A lawyer observing to an (unbeknownst to him, dissatisfied) employee of his firm that he’s not inclined to sell his parents’ old homeplace to a homosexual couple because granny and grandpa, who are buried on the place, would have been disgusted by it, and consequently he’s hoping that the most flamboyant such couple in the county don’t make an offer . . . has just put his law license in jeopardy. It doesn’t matter that at the moment there is no such offer on the table, or that he’s not actually said that he wouldn’t sell to them. It really doesn’t even matter that he’s not expressed his own animadversion to homosexuality. He’s in the cross-hairs.

The Pennsylvania Supreme Court adopted what is in some respects an even more egregious version of the model rule (I can’t tell if the model rule has been changed since that state adopted it):

“(g) in the practice of law, by words or conduct, knowingly manifest bias
or prejudice, or engage in harassment or discrimination, as those terms
are defined in applicable federal, state or local statutes or ordinances,
including but not limited to bias, prejudice, harassment or
discrimination based upon race, sex, gender identity or expression,
religion, national origin, ethnicity, disability, age, sexual orientation,
marital status, or socioeconomic status. This paragraph does not limit
the ability of a lawyer to accept, decline or withdraw from a
representation in accordance with Rule 1.16. This paragraph does not
preclude advice or advocacy consistent with these Rules.”

Thus, if our hypothetical lawyer makes his statement within a city — whether or not he lives or works there — the city council of which has adopted some cock-eyed definition of what is “harassment” or “discrimination,” then he’s placed in jeopardy his ability to house, clothe, and feed his children.

In its defense, the Pennsylvania Supreme Court adopted slightly — at least on the surface — narrower official comments to the rule:

“[3] For the purposes of paragraph (g), conduct in the practice of law
includes participation in activities that are required for a lawyer to
practice law, including but not limited to continuing legal education
seminars, bench bar conferences and bar association activities where
legal education credits are offered.

[4] The substantive law of antidiscrimination and anti-harassment
statutes and case law guide application of paragraph (g) and clarify the
scope of the prohibited conduct.”

Let’s say my hypothetical lawyer is standing around at the break in a continuing legal education seminar, and passes the same hypothetical statement about his family’s homeplace. Reckon he might be overheard by someone with an activist’s axe to grind?

Predictably, a Pennsylvania lawyer who works for the Foundation for Individual Rights in Education, and whose activities regularly involve his speaking publicly, and before crowds, on topics that are, to put it mildly, Not Approved by the “woke” crowd, by the crew that got that NYT opinion editor fired, the mob that has successfully demanded that this, that, or the other professor be disciplined or fired for having pointed out simple truths that offend left-extremist dogmas, saw that rule and realized what he was in for, unless he more or less ceased his present employment. He sued the Pennsylvania bar authorities to enjoin the rule’s enforcement, arguing that it was an unconstitutional restraint on his First Amendment rights. The Pennsylvania bar wallahs defended.

At least for the moment, it’s advantage to the plaintiff. A federal judge granted the lawyer’s motion for a preliminary injunction, and denied the bar’s cross-motion to dismiss. The order is here.

I have to say that the state bar’s arguments that the rule does not capture words (the judge kept impolitely reminding them that the damned rule expressly reaches words), and that the effect of the rule would not chill any reasonable lawyer’s expression in those words, were frivolous bordering on outright dishonest. I only wish the federal judge in question had been enough of a straight-shooter to say exactly that.

The rule is indefensible.

But consider: The highest court in a state adopted this rule. Only one of their judges had the integrity to dissent (may his tribe increase!). The others all joyfully jumped aboard the totalitarian bandwagon. All but one of the most powerful jurists in the State of Pennsylvania knowingly signed on to crush the First Amendment rights of an entire occupational group. And what do we bet that the’re going to have the effrontery, decision after decision hereafter, to lecture the citizens of the State of Pennsylvania about the sanctity of the Constitution, and no doubt about how pointing out their brazen departure from their oath to uphold that Constitution is somehow “an attack on the independence of the judiciary”? Every last one of the judges who signed off on that rule should be impeached and removed from office instanter. They have conclusively demonstrated not only their unfitness for judicial office, but for any other position of public trust, down to and including the folks who swab out the urinals at the state fairgrounds.

I have over the years, in situations like this, reminded my interlocutors that Alexandr Solzhenityn’s final sentence in his monumental GuLAG Archipelago, after three volumes, however many “books,” dozens of chapters, and on and on, beginning with the very oirigins of the Soviet system of extra-judicial killings, the first of the slave labor and extermination camps, and continuing all the way up to the post-Stalin era and the continued use of the camps for oppression, is a brief four words. These four words are his valedictory to the crowning achievement of his life’s work. What are they?

“There is no law.”

In the State of Pennsylvania, with these kinds of judges running the show, there is no law.

A Final Burst of Courage

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Over twenty years ago I ran across an article in The Economist. This was back when it was a serious news magazine; it has now become a sad parody of itself, parrotting whatever the most recent Party-approved far-left talking points happen to be. I even wrote about it once, here.

Where was I? Oh, yes. Way back when I ran across an article in The Economist on that botanical curiosity, the durian. It’s native to Borneo and Sumatra, apparently, although at present the largest exporter is Thailand. What caught my eye in the article was the description of its aroma as having been characterized as “pig shit and turpentine”. Wikipedia has a more complete write-up, so I won’t bore Gentle Reader with all the details. The key detail from the Wikipedia entry may be that of the nine species of the fruit known to be edible, only one is sold on the international market. This may account for the (pardon my getting ahead of myself) discrepancy between the experience as advertised and the experience as lived. In Southeast Asia it seems, many public areas such as transit buses, subways, and hotels go so far as to post signs expressly prohibiting durians on the premises.

Once a month, my father goes to have both eyeballs injected. Bilateral wet-type macular degeneration, or as I call it, macular degeneracy. He tells me it feels almost as good as it sounds, which I find only mildly comforting as it’s highly genetically correlated and both he and his oldest brother have wet-type degeneration, which accounts for only 10% of total cases. While my father is having his injections, I frequently pop down the road a bit and put in a call at my favorite international food market.

This is a very serious international food store. It’s not some place, in other words, where they sell Dos Equis beer, some cheese mass-produced in France, and a jar or two of Italian tomato paste and call it “world market” or some such. Typically I’m one of the six or eight round-eyes in the place. The emphasis is on Asian foods, and most of the major countries are represented. China, of course, but also Japan, Korea, Vietnam, Thailand, India, and Laos, to my certain knowledge. They’ve also got strong selections from Mexico (and points south), and this past visit I saw food labels in Cyrillic (bought a jar of Baltic sprats from Russia, from which I infer that the FDA has concluded that, thirty years after the fall of the Warsaw Pact, the Baltic has finally flushed out enough that they’ll permit fish harvested there to be sold here . . . the last time I was there, underway on a German Bundesmarine tender in August, 1985, about all that could live in those filthy waters was jellyfish). They’ve got a great fresh seafood selection, and if Gentle Reader wants to settle a bet on how many dozen different kinds of rice there are, this store would be a good place to go make the count.

In their fresh fruit section they sell whole jack fruits (free advice: unless you really, really are passionately fond of jack fruit, or are close friends with about 72 people who are, a whole jack fruit is going to work out to be several years’ supply of the article). And durians.

Ever since reading about them all those years ago, I’ve wanted to try a durian. But I never worked up the guts to take the plunge and buy one. Until this past Friday.

According to Wikipedia, the durian grows up to about fifteen inches long. It is covered by very sharp, if short, spines. So Lesson No. 1 in today’s catechism will be: You will need to wear leather gloves while opening up your durian.

The eatin’ part of the durian consists of a number of pods of irregular shape and size. I cannot tell that they are arranged symmetrically, either. You can look at the exterior of the fruit and easily discern the boundaries between the larger pods. Note them well; these interstices will be where you slice.

Having donned my gloves, I removed the stem and rested the fruit on its head. Using a fairly sharp chef’s knife (I would not use anything with a narrower blade; you are likely to experience unsafe levels of flexing as you cut into the rind), I then cut along those boundaries between the larger pods. You’ll need to cut anywhere between a half- and a full inch into the rind to get all the way through. To use a perhaps grisly metaphor, you’ll cut ear-to-ear on it, all the way from near the stem on one side to near the stem on the other. Having cut the rind, you can lay your knife aside, and keeping your gloves on you simply pull the sucker open. If you’ve guessed right you’ll end up with two chunks of durian and at least one or two pods exposed. There will be more pods than visible at this initial cut. You will then slice around (not forgetting to put your gloves back on) to locate and extract the additional pods.

Each pod has one seed, which is perhaps the size of a good-sized peach pit. It is dark brown and smooth on the surface, and you will find it growing at the inner edge of its pod. I discovered that the easiest way to remove the seed is to split the pod along its outer longitudinal axis and peel it back from the seed. [According to the Wikipedia entry the seeds are edible if cooked; I did not test that hypothesis.]

The internet has many recipes for using durian. It is used in curries, in desserts of various sorts, and even in ice cream. I refer Gentle Reader to the kindly offices of Google for assistance in locating the recipes. I did not do anything with my bridal durian other than cut the fruit pods into bite-sized pieces and eat them unadorned. I usually like to begin with a new food by eating it as close to how it comes out of the package as I can take it, on the theory that I’ll know better what to do with it if I know how it tastes all on its own.

One removes the pod from the rind by reaching around the pod (having removed the gloves first) and gently pulling it free (it’s attached along its inner longitudinal axis); if you pull too vigorously the pods come apart in your hand very, very easily, as in fact happened to mine. The texture of the pods varies. At the inner edges, the outside surface of the pods is very slightly fibrous, but it is a fiber that teeth have no difficulty cutting through, so that’s not an issue. Moving away from the interior of the fruit, the exterior surface texture of the pod becomes softer and more even. Inside the pod my durian was very extremely creamy in texture, almost to the point of banana pudding (it was also a slightly more pale, but very similar shade, as banana pudding). As mentioned, I took a knife and just sliced the pods up. Not wanting to eat the entire thing at one sitting, I put the left-overs in a bowl, covered it with plastic wrap, and shoved it into the refrigerator. There was no observable change in color, texture, taste, or aroma over the ensuing 48 hours (given that durians are commonly shipped frozen, that wasn’t surprising).

So what about the taste and aroma? We may dispose of the latter first. If you shove your face right into your freshly opened durian, you will notice a scent that is not like anything your are likely to have smelled before. I did not observe it to be either noticeably pleasant (like a freshly peeled tangerine is heaven borne on the breeze) or noticeably unpleasant (on my way to work each morning I drive past a sewer treatment plant that sits way down in a creek valley, and sometimes those boys operating the plant have very obviously cracked open the wrong valve somewhere . . . and my durian smelled nothing like that). But here’s the most important take-away: The aroma was simply not all that pronounced. As mentioned, if you take a face-plant into your durian, you’ll notice the smell. But who, other than a fraternity pledge during Hell Week, makes a point of doing a face-plant into his food? It must be observed that the Wikipedia page linked above points out that not all durians smell the same, either in bouquet or strength. It may be nothing more than that the specific variety shipped internationally just doesn’t smell as bad as the varieties consumed locally. If so, then so be it; I’ll take the trade-off.

The flavor is sweet, but not overpoweringly so. There is no tartness to it, either. The flavor of my durian was also not overwhelming. Stronger than a strawberry; not as powerful as a tangerine or peach. And very different; again, there’s nothing in my experience that it reminded me of to any degree. I can see why it would make the beginnings of a good dessert or flavoring in ice cream. It would doubtless combine with other essences (e.g. coconut) to produce distinctive flavors, but without any over-bearing the other.

The bottom-of-the-page conclusion is this: I will definitely be buying more durians over the years. Having satisfied myself that the unadulterated fruit is thoroughly satisfactory, I will begin the experimentation.