Danzig U.S.A.

WAVE 3 Guest Editorial – Dec. 12, 2011: Kentucky Death Penalty

2011-12-13T23:04:00.000-05:00

WAVE 3 Guest Editorial – Dec. 12, 2011: Kentucky Death Penalty

ABA: Kentucky should suspend executions

2011-12-08T07:05:00.000-05:00

Law & Social Policy Syllabus

2011-08-07T18:33:00.003-04:00

» You may download a Microsoft Word version of this syllabus «

August 2011 Draft
There is hardly a political question in the United States which does not sooner or later turn into a judicial one.
---Tocqueville
LAW & SOCIAL POLICY
Spring 2012 / Louis D. Brandeis School of Law / University of Louisville
Donald Vish, lecturer
________________________________
Course Description
This course will focus on law as it shapes or reflects social policy not as it facilitates the resolution of disputes between private parties. This course will examine the relationship of law to social, political, cultural and economic conditions in the United States.
Overview of Classes
There will be twelve topics covered in fourteen classes. Here is an overview:
Introduction
1) The People and Social Policy. Tocqueville observations of democracy in America, The Federalist Papers, the antecedents and hallmarks of United States social and legal P
policy; separation and balance of powers: the social, civic and political ethos of the United States.
2) The Judiciary and Social Policy
3) The Legislature and Social Policy
4) The President and Social Policy along with twenty one questions about Tocqueville ‘s views on the source of law in a democracy, the role of the legal profession, judicial power, customs, religion, education, race, majority rule, a free press, criminal laws, executive power, possible tyranny of the legislature, individualism, family, material prosperity and love of money, how a new aristocracy may emerge in the United States, how democracy affects wages and why regulation is needed, the equality of men and women, waging war in a democracy, the main objective of law-making in a democracy and the basic social tableaux of the United States.
The Judiciary
5) Capital Punishment and Social Policy: An Evolving Standard of Decency
6) Race, National Origin, School Segregation: Law & Policy, A Pas De Deux
7) Libel: Weaving Together Law and Policy or is it Policy and Law?
8) Corporate Political Activity: Social Policy, Public Policy or Legal Policy?
The Presidency
9) War Powers: Who’s Policy?
10) Enhanced Interrogation: Law or Policy or Neither?
The Legislature
11) Sex, Marriage, Defense of Marriage Act: Limits on Majority Rule
12) The Takings Clause: Economics as Policy

Objective of the Course
The condition of society is normally the result of circumstances, sometimes of laws, more often than not a combination of these two causes; but, once it is established, we can consider it as the fundamental source of most of the laws, customs and ideas which regulate the conduct of nations: whatever it does not produce, it modifies. In order to become acquainted with the legislation and the manners of a nation we must, therefore, start by studying the social condition. –Tocqueville p.58.

What is the objective of the course? This course is designed to introduce the student to the interplay between law and social policy—the civic intersection where culture, social conditions, customs, economics, morals, politics, prejudice and self-interest meet on the way toward formulation of a governing policy that prudently dispenses public and political justice.
Law and social policy encompasses the relationship between customs and statutes, the letter and spirit of the law, the will of the majority and the rights of the minority. It is both current and enduring---the past and present working together.
What is the course about? It is about the sources of law—the confluence of political power, the exigency and temper of the times as well as the more enduring influences of culture, customs, manners and values and priorities of the people. If zeitgeist is the temper of the times law is the temper of the people. The concept of the ‘people’ transcends the numerical majority of the moment.
Social policy may be based on the culture, zeitgeist, necessity of the day, convenience, consent of the governed or popular will. Social policy is more permeable than law.
Law and social policy are engaged in a perpetual a pas de deux—sometimes one leads and at other times follows. While their separate form is distinct, their function is unified. They dance and function as one even though they are clearly two.
The course follows the path mapped by Tocqueville. In order to become acquainted with the law we will study social conditions and manners.
Ultimate Questions Posed by the Course
Every lecture, every class, every case and text considered in the course raises the question (s): What is the relationship between law and social policy? Does law lead or follow? Is law master or servant, shadow or corpus? Is social policy determined by the people or by the judiciary or by the legislature or by the executive branch, the bureaucracy or by the constitution? Might social policy come from experts, customs, culture, social conditions, world opinion or an informed elite?

Class Dates:
January: 9,16, 23, 30
February: 6, 13, 20, and 27
March: 5, 12, and 26
April: 2, 9
Course Syllabus
Basis of grading: There will be a final exam comprised of five essay questions each worth 20 points. The questions will invite straightforward expository prose responses (there are no hidden or subtle issues lurking in the questions). Each question will ask ‘what’ or ‘why’ or both or will begin with instructions to ‘discuss’ or ‘evaluate’ or ‘describe’ or ‘compare’ or ‘provide examples of’. Each question will invite the student to demonstrate both reportorial and analytical skills based on memory, preparation, analysis, critical thinking and command of class presentations. Good reportage will earn a “C” while superb insight and analysis will earn an “A”. [See the attached Appendix for more elaboration on the grading criteria].
You may contact me directly at dvish@middreut.com or you may communicate through a class ombuds committee of three students that will be appointed to facilitate presentation of any complaints, suggestions or requests that an individual student may not want to present directly.
Class plan: There will be fourteen classes beginning January 9 and ending April 9. Twelve class plans have been prepared (unplanned time allows for productivity through flexibility and the opportunity to review, summarize and talk about the final exam): The first four classes are introductory and historical and treat the course resources, the three departments of government and twenty one law and social policy questions considered by Tocqueville in his master work Democracy In America (1835, 1840). The ensuing eight classes will cover (in the sequence in which they will be considered): Capital Punishment, Segregation, Libel, Corporate Political Activity, War Powers, Torture and Terrorism, Family and Governmental Takings.
The first four substantive lectures are animated with a focus on judicial power and social policy, the next two on executive branch power and social policy and the final two on legislative power and social policy. Four broad types of law and policy shape the course: ECONOMIC (Takings and Corporate Political Activity) LIBERTY (Libel and Family), THE STATE (War Powers and Enhanced Interrogation) and SOCIETY (Capital Punishment and Segregation).
Textbooks
1) Erwin Chemerinsky, Constitutional Law: Principles and Policies (4th Edition, Aspen Student Treatise Series, 2011). ISBN 978-0-7355-9808-3.
2) The Federalist Papers, Introduction and Notes by Charles R. Kesler, Edited by Clinton Rossiter (Signet Classic, 1999) First Signet Classic Printing, April 2003.
3) Alexis de Tocqueville, Democracy in America (Penguin Classics, 2003) ISBN-13: 978-0-140-44760-6.
DV
August 7, 2011

Lecture #1: INTRODUCTION: The Power of the People
[January 9, 2012]
The people reign in the American political world like God over the universe. --Tocqueville 71
______________________________________________
Assignments for Class #1: Introduction: The Power of the People, Money and Property
1. Alexis de Tocqueville, Democracy in America (Penguin Classics 2003) (With an Introduction and Notes by Isaac Kramnick) (Cited in the Syllabus as “Tocqueville”). The aim of this book was to reveal American laws. [335]. The discussion of Tocqueville culminates in the 4th Class with a discussion of twenty policy points presented in the book. Read Section III of the Introduction by Kramnick in its entirety, pages xxiv through xxxvii and pages xliii through xlvii, the concluding part of Section IV. Also read the author’s Introduction in part, pages 11-16: A new political science is needed for a totally new world. [16].
2. Tocqueville Chapter 2 pp. 36-58 (always read the introductory head notes at the beginning of each chapter). This chapter is an overview of the social, cultural, religious mix that the United States is. It sets the course for the course. Many of its specific topics will be treated in more detail in the 4th Class: the national character, common language, equality, land, liberty, the cultural differences between north and south, the nature of ‘gold seekers’, the social theory of the United States, the source and object of laws both penal and political, public education, religion, the spirit of religion and liberty (in opposition or support?) the relationship between law and social conditions.
3. Tocqueville Chapter 3 “Social Conditions” and their impact on the laws pp. 58-67 especially the role the laws of inheritance play in the progress of human affairs. I am not even aware of a country where the love of money has a larger place in men’s hearts or where they express a deeper scorn for the theory of a permanent equality of possessions. [64].
4. Tocqueville Chapter 4 pp. 68-71 “The Sovereignty of the People”: The people reign in the American political world like God over the universe. [71]. The collective will of the nation, two impediments to progress before independence, its role in all things.
5. Chemerinsky Chapter 1, Section 1.4 “How Should the Constitution Be Interpreted?” pp.15-26. END

Lecture #2: The Judiciary
[January 16, 2012]
…there is no liberty if the power of judging be not separated from the legislative and executive powers. The Federalist Papers, No. 78: The Judiciary Department (Hamilton)
…an American judge is dragged, despite himself, on to the political field. Tocqueville 121
There is hardly a political question in the United States which does not sooner or later turn into a judicial one. Tocqueville 315
…the idea that gold and silver mines are the source of national wealth: a fatal idea which has done more to impoverish those European nations who were enslaved by it and has destroyed more men in America than the united influence of war and bad laws. Tocqueville 41.
______________________________________
Assignments for Class #2:
1. The Federalist Papers, No. 78: The Judiciary Department (Hamilton) pp. 463-471.
2. Alexis De Tocqueville, Democracy in America (Penguin Classics, 2003) Chapter 6 Judicial Power in the United States…pp. 116-124; The Federal Courts of Justice pp.161-177 (especially the head notes of each section); page 315. The three characteristics of judicial power, the political power of the judge, the power to declare laws unconstitutional [here is the threshold of law and social policy].
3. Tocqueville Chapter 8 “The Federal Courts of Justice” pp. 161-177.
4. Marbury v. Madison 5 U.S. 137 (1803)
5. Erwin Chemerinsky, Constitutional Law: Principles and Policies (4th Edition, Aspen Publishers, New York), Chapter 2, The Federal Judicial Power pages 32-37, 43-45, 52 (Advisory Opinions) 130-135 (Political Questions).
End

Lecture #3: The Legislature
[January 23, 2012]
It is to a legislature thus constituted that almost all the authority of the government has been entrusted. Tocqueville Ch XV
The executive power in our government is not the only, perhaps not even the principal, object of my solicitude. The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period. Tocqueville quoting Thomas Jefferson Ch. XV
____________________________________________________
Assignments for Class #3:
1. Chemerinsky Chapter 3 The Federal Legislative Power Section 3.1 pp. 238-240; Section 3.3.3—3.3.5 Commerce Clause Before and After 1937 pp. 251-269.
2. U.S. v. Lopez 514 U.S. 549 (1995) (limits of commerce clause found). Confer Chemerinsky pp.269-272.
3. Can Congress overrule the Supreme Court? Chemerinsky Section 3.6.2 “What is the Scope of Congress’s Power?” pp. 299-307.
4. Tocqueville Chapter 8 “The Federal Constitution: Legislative Powers” pp. 137-140.
5. The Federalist Papers No. 10 (Madison) on factions ( *compare with Tocqueville on associations) pp. 700-702; No. 47 (Madison) and No. 51 (Madison) on checks and balances, separation of powers.
End

Lecture #4: The Presidency and Twenty+-Policy Issues Observed by Tocqueville
[January 30 2012]
The love of comfort has become the dominant taste of the nation. Tocqueville 618.
____________________________________________
Assignments for Class #4:
1. The Federalist Papers No. 69 (Hamilton) “The Real Character of the Executive” pp.—414-421.
2. Tocqueville Chapter 8 “The Federal Constitution: The Executive Power” pp.-141-161.
3. Tocqueville commentary on: (1) fear of legislative power (288, 304-305), (2) tyranny of the majority (68, 71, 223-224, 287-304), (3) war (755-757), (4) the law of property and inheritance (60-64, 840-841), (5) a free press (213, 222, 811-812), (6) judicial power (122, 314, 812), (7) love of money (41,64, 616-618, 713, 721-722), (8) how a new aristocracy may emerge in America (645-648), (9) lawyers (…lawyers form the only enlightened class not distrusted by the people. 314, 307-315), (10) wages (675-677), (11) women (687, 692, 696, 700), (12) main objective of legislation and legislator (49, 817), (13) the source of laws (49, 57, 58, 71, 319, 335, 357, 362), (14) freedom and equality (583-587), (15) individualism (583- 586, 587, 589-91, 683), (16) religion (54-55, 336-352), (17) public education American style (53-54, 65 [job preparation], 352-357), (18) the social theory of the United States (42-47), (19) voluntary associations [compare with The Federalist Papers No. 10 ( Madison on Factions] (219-227, 595-609, 700-702), (20) race (398-426); (21) manners (705).

The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11. John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel, September 25, 2001.
End

Lecture #5: Capital Punishment
[February 6, 2012]
Never was the death penalty more frequently prescribed and never more rarely enforced. [On the original 17th century Puritan codes in America] Tocqueville 49.
No Country administers its criminal law with more kindness than the United States. While the English seem bent on carefully preserving in their penal legislation the bloody traces of the Middle Ages, the Americans have almost eliminated the death penalty from their codes. Tocqueville 653 (1840).
___________________________________
Assignments for Class #5:
1. Furman v. Georgia 408 U.S. 238 (1972).
2. Gregg v. Georgia 428 U.S. 153 (1975); Woodson v. North Carolina 428 U.S. 280 (1976).
3. Herrera v. Collins, 506 U.S. 390 (1993) (Justice Blackmun dissenting).
4. Callins v. Collins (Justice Blackmun dissenting) 510 U.S. 1141 (1994).
5. Atkins v. Virginia 536 U.S. 304 (2002). *Give special attention to the METHODS for determining the evolving standard of decency. Is this a template for law and social policy working together?
6. Roper v. Simmons 543 U.S. 551 (2005).
7. Kennedy v. Louisiana 554 U.S. 47 (2008).
8. Baze v. Rees 553 U.S. 35 (2008) see opinions of Justices Stevens, Scalia and Thomas on cruel and unusual punishment.

End

Lecture #6: Race
His son is excluded from the school where the sons of Europeans come to be educated. At the theatre, any amount of gold could not buy him the right to take his seat beside his former master; in hospitals he lies apart. The black is allowed to pray to the same God as whites but not at the same altars. Tocqueville 402.
[February 13, 2012]
Americans have granted their judges the right to base their decisions upon the constitution rather than upon the laws. –Tocqueville 118
A lengthy war in a democratic country places freedom under threat. –Tocqueville 755
_______________________________________
Assignments for Class #6:
1. Dred Scott v. Sandford 60 U.S. 393 (1857).
2. Plessy v. Ferguson 163 U.S. 537 (1896).
3. Brown v. Board of Education 347 U.S. 483 (1954).
4. Korematsu v. U.S. 214 (1944). [Also germane to Lecture #10].
5. Tocqueville “The Position of the Black Race in the United States” pp.398-426.
6. The Federalist Papers No. 54 (Madison) on why slaves are counted in the census for purposes of congressional representation pp. 334-338.
7. Chemerinsky Chapter 9, Section 9.1.1 pp.684-685, 691 (first two paragraphs only), Section 9.3.1 “Race Discrimination” pp. 706-726.

End

Lecture #7: Libel
[February 20, 2012]
In order to enjoy the priceless advantages guaranteed by press freedom, one must submit to the unavoidable evils it produces. --Tocqueville 213
_____________________________
Assignments for Class #7:
1. Tocqueville “The Freedom of Press in the United States” Vol. 2, Chapter 3, pp.209-219.
2. The Federalist Papers No. 84 (Hamilton) (arguing against a bill of rights) on liberty of the press (513).
3. Chemerinsky “First Amendment Limits on Tort Liability” pp. 1078-1088, 1090-1091; Section 6.3.1 “Rejection of Application Before Civil War” pp. 503-509.
4. New York Times v. Sullivan 376 U. S. 254 (1964).
5. Curtis v. Butts 388 U. S. 130 (1967).
6. Gets v. Welch 418 U. S. 323 (1974).
7. Hustler Magazine v. Falwell 485 U. S. 46 (1988).
8. Dun & Bradstreet v. Greenmoss Buildings, Inc. 472 U. S. 749 (1985).

The press is by far the most effective democratic instrument of freedom. –Tocqueville 8 12.

End

Lecture #8: Corporate Political Activity
[February 27, 2012]
The business aristocracy seldom lives among the industrial population it manages; it aims not to rule them but to use them. –Tocqueville 648

Assignments for Class #8:
1. Tocqueville, “How An Aristocracy May Emerge from Industry,” Vol. 2, Chapter 20, pp. 645-648.
2. Austin v. Michigan Chamber of Commerce 494 U.S. 652 (1990): corporate wealth can unfairly influence elections [494 U.S. at 660]. REVERSED in….
3. Citizens United v. Federal Election Commission 130 S. Ct. 876 (2010).
4. Kentucky Constitution (1890) Section
5. Chemerinsky, Chapter 11, Section 11.3 “Is Corporate Spending Protected” pp. 1117-1121; “Spending Money as Political Speech pp.1103-1116.

Generally speaking, I think the industrial aristocracy which we see rising before our eyes is one of the most harsh ever to appear on the earth; but at the same time, it is one of the most restrained and least dangerous. However, this is the direction in which the friends of democracy should constantly fix their gaze; for if ever aristocracy and the permanent inequality of social conditions were to infiltrate the world once again, it is predictable that this is the door by which they would enter. –Tocqueville 648.

End

Lecture #9: War Powers
[March 5, 2012]
There are two things it will always be difficult for a democratic nation to do: beginning and ending a war. Tocqueville 755
A lengthy war in a democratic country places freedom under threat. Tocqueville 755
In America, conscription is unknown; men are enlisted for payment. Compulsory recruitment is so alien to the idea and so foreign to the customs of the people of the United States that I doubt whether they would ever dare to introduce it into the law. Tocqueville 260
___________________________
Assignments for Class #9:
1. Chemerinsky Chapter 3 Section 3.5.1 “War Powers” pp. 290-291; Chapter 4 Section 4.1 “Inherent Powers” pp.343-348; 4 Section 4.3 “Executive Privilege” p.362; Section 6.3 “War Powers” pp. 381—392 (including presidential power and the war on terrorism, detentions, military tribunals).
2. Tocqueville Vol. 2 Part 3 Chapter 22 “Why Democratic Nations Have a Natural Desire for Peace and Why Democratic Armies Naturally Seek War” pp. 750—757; Chapter 23 “A Few Remarks on War in Democracies” pp. 767-773.
3. The Federalist Papers No. 23, 24, 25, 26, 27 (Hamilton) pp. 148-173.
4. The Federalist Papers No. 69 (Hamilton) on executive branch power pp.414-416 only; and No. 74 (Hamilton) pp. 445-446.

(in process August 5, 2011)

Lecture #10: Enhanced Interrogation
[March 12, 2012]
All those who wish to destroy freedom within a democratic nation should realize that the most reliable and the most rapid means of achieving it is war. Tocqueville p.756
The clatter of arms drowns out the voice of the law. Thoreau
____________________________
Assignments for Class #10:
1. Federalist Papers No. 34 and No. 41 (Hamilton) cited by John Yoo.
1. Memorandum of John C. Yoo for the President (this memo has been withdrawn by the current Administration as not reflective of law or policy of the United States).
THE PRESIDENT'S CONSTITUTIONAL AUTHORITY TO CONDUCT MILITARY OPERATIONS AGAINST TERRORISTS AND NATIONS SUPPORTING THEM
The President has broad constitutional power to take military action in response to the terrorist attacks on the United States on September 11, 2001. Congress has acknowledged this inherent executive power in both the War Powers Resolution and the Joint Resolution passed by Congress on September 14, 2001.
The President has constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations.
The President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.
September 25, 2001
MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT
By John C. Yoo, Deputy Assistant Attorney General, Office of Legal Counsel
(In process 8-7-11)
Lecture #11: Family
[March 26, 2012]
___________________________
Assignments for Class #11: Marriage, Procreation and Sexual Orientation
1. Meyer v. Nebraska 262 U.S. 390 (1923).
2. Loving v. Virginia 388 U.S. 1 (1967).
3. Goodrich v. Dept. of Pub. Health 790 N.E.2d 941 (MA. 2003).
4. Buck v. Bell 274 U.S. 200 (1927).
5. Skinner v. Oklahoma 316 U.S. 535 (1942).
6. Bowers v. Hardwick 478 U.S. 186 (1986).
7. Romer v. Evans 517 U.S. 620 (1996).
8. Lawrence v. Texas 539 U. S. 558 (2003).
9. Chemerinsky Chapter 9 Section 9.7.4 “Discrimination Based on Sexual Orientation” pp.807-809.
10. Chemerinsky Chapter 10, Section 10.2 “The Right to Marry” pp. 818-821 (and cases cited in Section 10.2.1 on Defense of Marriage Act and California’s Proposition 8) **(Give special thought to whether the executive branch can refuse to defend a congressional law); Section 10.3 “The Right to Procreate” pp. 829, 833-834; Section 10.4 “Sexual Activity and Orientation” pp. 866-868.

I hold it to be an impious and detestable maxim that, politically speaking, the people have a right to do anything; and yet I have asserted that all authority originates in the will of the majority. Am I, then, in contradiction with myself? Tocqueville 292.

In process 8-7-11
Lecture #12: The Takings Clause
[April 2, 2012]
Thus it is that the effect of democracy is not to impose certain manners on men but, in a sense, to stop them having any at all. –Tocqueville p. 705
…usually the love of wealth lies at the heart of Americans’ actions…--Tocqueville p. 713
_________________________________
Assignments for Class #12:
1. Pennsylvania Coal v. Mahon 260 U.S. 415 (1922).
2. Keystone Bit. Coal v. Benedictus 480 U.S. 470 (1987).
3. Eastern Industries v. Apfel 524 U.S. 498 (1998) (Coal Act).
4. Berman v. Parker 348 U.S. 26 (1954).
5. Kelo v. City of New London 125 S. Ct. 2655 (2005) (economic development).
6. Nollan v. California Coastal Comm. 483 U.S. 825 (1987) (beach access).
7. Chemerinsky Chapter 8, Section 8.4 “The Takings Clause” p. 656, “What is a Taking for Public Use” pp.678-681.

End. August 7, 2011.

The Fall of the House of Zeus

2011-07-08T13:26:00.001-04:00

Reprinted from The Cardinal Lawyer
Justice Bill Cunningham of the Kentucky Supreme Court takes a keen interest in legal education, especially in the ethical training of law students and lawyers. He writes to recommend a book, The Fall of the House of Zeus: The Rise and Ruin of America's Most Powerful Trial Lawyer:

I have just finished reading the book, The Fall of the House of Zeus [The Rise and Ruin of America's Most Powerful Trial Lawyer], by Curtis Wilkie. It is about the rise and fall of mega lawyer, Dickie Scruggs, of the famed asbestos-tobacco-Katrina lawsuits. The story dramatically relates how greed can transform erstwhile good people and fine people into criminals. If possible, I would make it required reading for every lawyer and law student in Kentucky.

Logan's Battery

2011-06-23T15:13:00.005-04:00

Dear friends:

Logan's Battery needs your help. On behalf of the University of Louisville, its School of Law, and the legacy of one of UofL's all-time legends, I ask you to save one of our university's most beloved historic landmarks.

John Alexander Logan was one of the first law school graduates from the University of Louisville. He received his degree in 1851. During the Civil War, he served under Generals William T. Sherman and Ulysses S. Grant and rose to the rank of major general. As commander in chief of the Grand Army of the Republic, Logan called for a nationwide observance in honor of fellow soldiers who did not survive the Civil War. The observance, then known as Decoration Day, eventually became Memorial Day.

Logan served a distinguished career in politics. Before the Civil War, he had been elected twice to the United States House of Representatives from Illinois. After the war, he served an additional three terms in the House and two terms as a United States Senator. He joined the 1884 Republican Party presidential ticket as running mate to James G. Blaine.

On May 13, 1978, Air Force General (ret.) Russell E. Dougherty, a 1948 law graduate of the University of Louisville, dedicated Logan's Battery, a replica of a three-inch Parrott Rifle used in the defense of Louisville during the Civil War. This cannon has paid tribute to John Alexander Logan, his law school alma mater, and to the entire University of Louisville community.

Logan's Battery desperately needs restoration. I ask that you join me in designating a gift toward the restoration of Logan's Battery to a condition befitting this distinguished alumnus of our law school and our university. Once restored, Logan's Battery will sit in a new place of honor in front of the Law School and the University's Oval. To make a gift, please visit the Law School's page for gifts from friends and alumni.

Very truly yours,

Jim Chen

Jim Chen
Dean and Professor of Law
University of Louisville

University of Louisville

2011-04-15T17:26:00.002-04:00

The Death Penalty is Killing Itself

2010-10-21T16:00:00.003-04:00

Text of Remarks

To the
Fellowship of Reconciliation
October 21, 2010
Louisville, KY

The Death Penalty is Killing Itself
By

Donald Vish
Kentucky Coalition to Abolish the Death Penalty

The death penalty is too broke to fix, to risky to use and too expensive to keep. It is the penal equivalent of Russian roulette: most of the time nothing happens but every now and then somebody gets killed.

But we may be on the verge of a lot happening.

Death Penalty History: 1957-2008
The modern history of death penalty in Kentucky undermines its own credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky and many were eligible for a death sentence.

Today, there are 35 people on death row and four people have been executed in the last 53 years.

Kelly Moss was electrocuted against his will in 1962; Harold McQueen was electrocuted against his will in 1997; Eddie Lee Harper decided to stop his legal appeals and requested execution by lethal injection in 1999; Marco Chapman dismissed his lawyers and his legal appeals and was executed by lethal injection in 2008.

The modern history of the death penalty in Kentucky mocks itself as a penal option that is intended to deter crime, exact retribution for heinous murders and provide society with the comfort and closure that comes from knowing that justice will be done in an even-handed manner.

How can four executions in 53 years deter anyone from doing anything? What does it say to victims’ families, friends and society at-large that out of thousands of murders in 53 years only 4 were deemed sufficiently heinous to merit execution? What is the citizenry to make of a system that can take up to thirty years to conclude its official deliberations?

What are judges, law enforcement officials and citizens to make of a justice system that seems to select for execution only those murderers that share, shall we say, certain similar demographics and even ‘geographics’? And how shall we reconcile our social and civic and legal commitment to fairness and the even-handed administration of the law with the knowledge that innocent people have been sent to death row?

Death Penalty History: 2009—present
The attorney general requested three death warrants from the governor in November 2009. Before the governor could act on the request, the Kentucky Supreme Court suspended executions in Kentucky until the Kentucky Department of Corrections published the details of the procedures it uses for execution. The DOC complied and new and revised procedures were back on the books by May, 2010. The governor began the procedure for setting execution dates for the three men when he discovered the state had a limited supply of a key drug used in lethal injections, enough for only one dose, and even that supply expired in October 2010. So, the governor asked his justice secretary to formulate a selection process so that at least one of the three could be executed while the others waited for fresh supplies of the lethal drug needed to complete the injection cocktail. The Department of Corrections has said that a new supply cannot arrive before the first quarter of 2010.

Status of the Wilson Case and Executions Generally?
The death warrant authorizing Wilson’s execution expired at midnight September 16, 2010. According to representations made by the Department of Corrections to the Franklin Circuit Court, a key ingredient in the lethal injection mix will not be available until the first quarter of 2011. As a result, there is no current date for Wilson’s execution and the state lacks the chemical means to execute until the first quarter of 2011.

There are also legal issues pending about the Wilson case that may affect executions generally:

1) The Kentucky Supreme Court is reviewing a decision by the Kenton Circuit Court denying Wilson’s request for DNA testing and a determination of whether he is exempt from execution due to mental retardation. If the Supreme Court grants Wilson’s request, an evidentiary hearing will be scheduled in Kenton Circuit Court. It is highly improbable that the governor would seek to execute Wilson before a hearing was concluded and it is highly probable that he would be enjoined if he did. This ruling does not affect capital punishment generically.

2) The Kentucky Supreme Court is also reviewing a case from Franklin Circuit Court involving the new execution procedures written by the Kentucky Department of Corrections pursuant to a November 2009 order of the Kentucky Supreme Court.

This case has the potential to impact all executions in Kentucky.

Wilson intervened in the case and the trial judge enjoined the state from executing Wilson while the court was reviewing the legal adequacy of the new execution procedures. In the course of enjoining the Wilson execution, the trial judge expressed official interest in (i) the lack of procedures to test for mental retardation prior to execution and (ii) possible legal flaws in Wilson’s trial where he was given no choice but to represent himself most of the time. Judge Shepherd has established an expedited briefing schedule on these matters, which concludes on October 25th.

The Kentucky Supreme Court is currently reviewing legal briefs from the litigants concerning the Franklin Circuit Court case, after which it may rule that the case is moot since there is no current death warrant applicable to Wilson; or, it might affirm the judge’s ruling, the effect of which would be to require the Department of Corrections to supplement its execution procedures to provide for mental retardation testing; or, it might reverse the trial judge’s ruling in effect finding that the judge had no good reason to delay the Wilson execution. In the latter case, Wilson would be scheduled for execution if and when (1) the governor signs a new death warrant and (2) the state receives new supplies of the drugs needed for the lethal injection.

If the Supreme Court finds the case is moot or it agrees with Judge Shepherd, the case would nevertheless be returned to Franklin Circuit Court for such further hearings as the trial judge may require in order to render a final judgment on the legal adequacy of the new execution procedures.

Facts about the Death Penalty(As of October, 2010)

35 states have the death penalty
15 do not
New Mexico and New Jersey abolished the death penalty in 2009 and 2006.
1170-- Number of executions since resumption of executions in 1976
1999-- Stands as the year with the most executions—98
2009—34
2008—37
2007—42
2006 – 53
Race of defendants: W-57%, B-34%, H-7%
Race of victims: W-79%, B-14%
Race of death row inmates: B-42%, W-45%
Exonerations through 2009 in 26 states—139
Since 1999, number of death sentences has dropped dramatically:
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Sentences 284 235 167 169 153 140 138 121 115 111 (2008 is projected)
Kentucky Death Row 34 (includes one woman)
Gallup Poll: October 2008 Gallup Poll found overall support for death penalty was 64% (80% in 1994). Poll also revealed when respondents are given choice of life without parole as alternate sentencing option, more choose life without parole (48%) than death penalty (47%). http://www.gallup.com/poll/111931/americans-hold-firm-support-death-penalty.aspx (11-17-2008).
Number of Executions before 1976 424
Current Kentucky Death Row Population 35
Women on Death Row (Kentucky) 1
Georgraphy
Southern states accounted for 95 percent of the executions in 2008. Texas accounted for 16 of 32 executions as of August 2009 and over 37 % of all executions in the U.S since 1977. Over 33% of the prisoners on Texas Death Row come from the county where Houston is located. In 2007 (the last year for which statistics are available), juries throughout the United State returned 115 death sentences. Over 60 % were in the South. A 2002 study found that 2/3rds of American counties have never imposed the death penalty since 1977. Only 3 % (92 out of 3,066) of the nation’s counties account for 50 percent of its death sentences in that 32 year period. When the U.S. resumed executions in 1977, only 16 nations had abolished the death penalty; the number has since grown to 135 (60 retain) (FL Bar 10-01-09—11). Five nations are responsible for +90% of the world’s executions: Iran, Pakistan, Saudi Arabia, China - and the United States.

Conclusion
The death penalty is sanctioned by the law of the land but seems to be ruled by the law of unintended consequences when it is not being ruled by the Fourth Law of Thermodynamics (also known as Murphy’s Law).

A recent example of Murphy’s Law is furnished by a lethal injection attempt in Ohio where a prisoner in the death chamber was repeatedly stuck with a needle to administer the lethal drugs but was eventually sent back to his cell when the prison personnel could find not a vein to use. And a recent example of the law of unintended consequences is furnished by an FBI report that showed states with high death penalty usage have a higher murder rate!

Of the Wilson case, Judge Boyce Martin of the United States Court of Appeals for the 6th Circuit wrote earlier this month:

The rape and murder of Debbie Pooley was a heartbreaking and reprehensible
act. But at Gregory Wilson’s murder trial, the state’s ignominy began…*** virtually every branch of our justice system failed —from the judiciary, which allowed a sex scandal between a colleague of the trial judge and Wilson’s co-defendant to jeopardize the fairness of Wilson’s trial; to the defense counsel, who were woefully unqualified and left Wilson abandoned at trial. The judiciary failed both Wilson and our legal system in this case because a judge’s unseemly conduct created a risk of bias that undermined the fairness of Wilson’s trial. Brenda Humphrey, Wilson’s co-defendant and the woman who identified him as Pooley’s killer, was having an illicit sexual affair with Judge James Gilliece, a colleague and good friend of the trial judge during Wilson’s trial:***
…This scandal is an embarrassment to all segments of the judiciary, from the judge
who violated the Code of Judicial Conduct by having a sexual relationship with a
defendant to the court officers who broke their oath of office by ferrying this defendant to and from the judge’s chambers for sex. When any trial is infiltrated by this sort of sordid corruption, it demeans our judicial system and undermines public confidence in its judgments. When a criminal defendant’s life is at stake, it is horrifying.
Perhaps even more egregiously than the judiciary, Wilson’s defense counsel
failed him and the principles of our legal system. From the very beginning of the case, Wilson’s defense was clearly a charade:****
…Over my more than thirty years on the bench, Wilson’s trial stands out as one of
the worst examples that I have seen of the unfairness and abysmal lawyering that
pervade capital trials. Although I will continue to apply the law of the Supreme Court as required by my oath, I must reiterate my belief that “the idea that the death penalty is fairly and rationally imposed in this country is a farce.” Moore v. Parker, 425 F.3d
No. 09-6306 Wilson v. Rees, et al. Page 7250, 270 (6th Cir. 2005) (Martin, J., dissenting). To maintain the legitimacy of our adversarial system of justice, we must be confident that its two foundational components are sound: a neutral and fair arbiter, and adequate legal representation for both parties.
If either pillar is fractured, as in this case, then we are left with a system that does not function. Its results cannot be trusted, particularly when a life is at stake. When a person is sentenced to death in a kangaroo court such as Wilson’s, with an illicit sexual affair taking place between a co-defendant and a colleague of the trial judge and no semblance of qualified defense counsel, it irreparably tarnishes our legal system. Until we reform this broken system, we cannot rely on it to determine life and death.
DV
October 21, 2010

KET: Death Penalty October 12, 2009

2010-09-10T15:07:00.001-04:00

Death Penalty: A Constitutional Collision Course (Kentucky Law Review)

2010-09-10T14:55:00.003-04:00

From Kentucky Law Review

Thursday, November 19, 2009
OP-ED: Atty Donld Vish's special to the CJ re death penalty

The death penalty has put the Constitution on a collision course with itself.
The path to collision was cut and cleared in 1976, when the Supreme Court allowed states to reinstate the death penalty based on statutes that used a ‘guided discretion' template proposed by the Model Penal Code (MPC). The ‘guided discretion' approach was designed to (1) eliminate the arbitrary and discriminatory administration of the death penalty that caused the court to invalidate all state death penalty statues in 1972 and (2) balance the competing constitutional demands of even-handed administration of the law and individual consideration of each case.
Rhetoricians have a name for rubrics like “guided discretion”: enantiosis, the yoking together of opposites to teach a poetic truth by contrast. An example is make haste slowly (which has also risen to a constitutional standard in death penalty cases).

The precise place where justice fits between “guided” and “discretion” is different in each capital case and always difficult to find. Unlike other criminal law cases where the acceptable margin of accuracy or error is reasonably wide, the legal target in death penalty cases is especially narrow. The structural and theoretical obstacles to finding, then reaching, the perfect balance between uniform administration of the law and individualized consideration of each case is the reason why so many death penalty cases take so long to resolve.
As the Supreme Court has continued to track and groom the path to justice in death penalty cases by using evolving standards of due process that mark the progress of a civilized society's search for justice, competing constitutional values get in the way of one another and, like Virgil's army, crowd the field so totally that none has room to do its work.

The sponsor of the MPC, The American Law Institute, has now withdrawn the guided discretion template and its legal consultants, Professors Carol S. Steiker, Harvard Law School, and Jordan M. Steiker, University of Texas Law school, have declared the “guided discretion experiment” unsuccessful in eliminating the arbitrariness and discrimination that figured so prominently in the decision to invalidate state death penalty laws in 1972. But the failure does not inhere in the model. The template is merely a mirror for what is required by the Constitution in death penalty cases: objective guidance and wise discretion. But the more there is of one, the less there is of the other.

As courts grapple with the balance between the two, justice in death penalty cases is becoming to the Constitution what absolute zero is to the laws of thermodynamics: a place one can progress toward but never reach.
Before the political process abolishes the death penalty in Kentucky, it will have been abolished by Kentucky juries that decline to impose it and appellate courts that can't uphold it because the applicable legal standards collide with each other.

Donald Vish is the director of advocacy and education for the Kentucky Coalition to Abolish the Death Penalty and an elected life member of the American Law Institute.

Posted on Thursday, November 19, 2009 at 10:44 PM in Apple, Criminal, Opinions and Editorials (Op-Ed) | Permalink
TrackBack

Drug Shortage Impacts Kentucky Executions

2010-09-10T14:19:00.000-04:00

Ky. governor holding off on some executions due to shortage of key drug
WHAS TV News Report: August 26, 2010
by Claudia Coffey

WHAS11.com

Posted on August 26, 2010 at 6:34 PM

Related:
•Condemned Ky. inmate asks judge to halt execution

(WHAS11) - Kentucky Governor Steve Beshear has set a September 16 execution date for a rapist and murderer but held off on two others because of a shortage of a key drug used in the execution.

Beshear said he signed only one warrant because the state has enough sodium thiopental for just one execution.

Kentucky's stock expires October 1 and a new supply of the drug is not expected until early in 2011.
It's raising a number of ethical questions; the biggest is whether one dose for one execution even safe to use so close to the date it expires.

The person facing execution? Gregory Wilson. Wilson was sentenced to die October 31, 1988, for his part in the 1987 kidnapping and murder of Deborah Pooley a year earlier in Kenton County in Northern Kentucky.

53-year-old Gregory Wilson will face an execution chamber similar to this one on September 16.

The last person executed in Kentucky was Marco Chapman back in 2008.
Wilson is one of three death row inmates for which death penalty is being sought but the state doesn't have enough chemicals on hand to execute the other two.

"I can't make anything of any of this," says Donald Vish with the KY Coalition to Abolish the Death Penalty.

Donald Vish, the Director of Advocacy for the Kentucky Coalition to Abolish the Death Penalty, says his organization has asked the governor to stay the execution until the entire system can be reviewed especially now given a key chemical is set to expire just two weeks after the Wilson execution.

"I think it creates a substantial risk of a botched execution or a substantial risk of lingering pain if the efficacy of those drugs has been diminished in any way," says Donald Vish with the KY Coalition to Abolish the Death Penalty.

The Department of Corrections has a sufficient amount of a drug called sodium thiopental, that amount expire October 1. The drug is a sedative.

"In this setting they use three different drugs. This drug is used first to make the person unaware of the effects of the other drugs," says George Bosse of the KY Regional Poison Control Center.

George Bosse - the medical director of the Kentucky Regional Poison Control Center - says like all drugs this too has an expiration date and it’s likely to remain effective until that date.

It should last until the expiration date and what happens after that is somewhat controversial and there is some concern it could lose its effectiveness and there is concern that it could cause toxicity which is less likely but the bigger concern is it could be less effective," says Bosse.

end--

Death Penalty: Guest Editorial June 3, 2010

2010-09-10T14:05:00.002-04:00

June 3, 2010
Guest Editorial: WAVE-TV
The Death Penalty

By Donald Vish
Kentucky Coalition to Abolish the Death Penalty

Aggravated murder cases in Kentucky show a disparity in treatment so inexplicable and so extreme that the legitimacy of the death penalty must be called into question.

In the last two years a serial killer, a child-killer rapist and a $1,000 hit man got life sentences while over the years some aggravated murderers got death. Why: A bad crime; a bad lawyer or bad luck?

Similar punishment for similar crimes is a cornerstone of criminal justice. Without it justice looks random and lacks credibility.

The governor needs to get to the bottom of this dysfunction before signing any death warrants. Confidence in our justice system depends on getting an explanation for a disparity that is now inexplicable-and unacceptable.

Copyright 2010 WAVE News. All rights reserved.

Abolish the Death Penalty: WAVE TV Guest Editorial

2010-09-10T14:02:00.000-04:00

Abolish the Death Penalty
(WAVE TV Guest Editorial
1-22-10)

By Donald Vish
KY Coalition to Abolish the Death Penalty

The rarity of executions in Kentucky goes beyond selectivity and enters the realm of freakish oddity – three since 1977 and only four since 1956.

Three conclusions are warranted:

1.The death penalty no longer serves any legal purpose
2.It offends Kentuckians' evolving standard of decency
3.It's arbitrarily applied
A 2006 University of Kentucky poll showed that 67% of Kentuckians prefer a penal option other than death in capital murder cases. The Kentucky Supreme Court should reconsider the continuing legality of the death penalty in light of its marginal and erratic use. Through looking at jury sentencing patterns, the court should conclude the death penalty does not meet legal standards, and that juries believe that life in prison without parole adequately protects the public and punishes the worst of the worst.

That's my opinion.

Copyright 2010 WAVE-TV. All Rights Reserved.

Eliminate the Death Penalty

2010-09-10T13:44:00.001-04:00

(Lexington Herald Leader
Sunday, September 5, 2010)

Eliminate the Death Penalty
by
Donald Vish

The death penalty has become an embarrassment. Its administration has undermined public confidence in the way the justice system works. The best thing its supporters can say about is it’s not used very much.

The modern history of the death penalty in Kentucky undercuts its credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky. Many were eligible for a death sentence. Today there are 34 people on death row. Four people have been executed in the last 53 years. Infrequent use of the death penalty in Kentucky is not proof that executions are reserved for the worst of the worst.

In the last two years a serial killer, a child-killer rapist and a $1000 dollar hit man got life sentences while over the years some aggravated murderers got death. Why? A bad crime or a bad lawyer or bad luck?

The disparity in treatment of aggravated murder cases is so inexplicable and so extreme that the legitimacy of the death penalty must be called into question. An honest and impartial examination of aggravated murders in Kentucky would lead one to conclude that it is impossible to discern the legal criteria by which some are sentenced to death and others are not. The gravity of the crime does not appear to be the determining factor.

Similar punishment for similar crimes is a cornerstone of criminal justice. Without it justice looks random and lacks credibility. Within the universe comprised of heinous crimes and brutal perpetrators administration of the laws governing executions resembles the equivalent of Russian roulette: most of the time nothing happens but every now and then someone gets killed in accordance with the laws of chance.

Last fall, The American Law Institute, the organization that created the blueprint for modern death penalty laws in this country, concluded that the system it created does not work and cannot be fixed because the constitutional imperatives of consistency in sentencing and the need for individualized sentencing cannot be reconciled. In the context of death penalty jurisprudence, the Constitution is at war with itself and has lost.

The current order scheduling for September 16 the execution Gregory Wilson, 53, for the brutal murder and rape of a popular restaurant worker Deborah Pooley, necessitated in part by the need to complete the execution before the sleep drug used in the lethal injection mix expires in October is an example of a broken system. Since there is not enough of the drug on hand to execute the other two inmates whose death warrants are on Governor Beshear’s desk, he had to ask his justice secretary to come up with a selection process. While the process may be formulated in utmost good faith, any process that selects one of three under these circumstances more resembles the verdict of chance than the verdict of justice.

The death penalty is riddled with contradictions and contradictory imperatives.

Using a deadly chemical employed in both lethal injection and euthanasia, executions serve the contradictory goals of

* retribution and a humane death imposed after a
* legal process that applies contradictory legal mandates of even-handed administration of the law and personal consideration of each case and
* all in a special time warp that hurries along slowly.

There are too many pieces to the death penalty puzzle. It’s impossible to make them fit because they don’t. Add accidents of geography, race, demographics and wrong convictions to the lethal mix that capital punishment law has become and you get a justice system that’s killing itself.

Donald Vish is a lawyer, a life member of the American Law Institute and the Director of Advocacy and Education for the Kentucky Coalition to Abolish the Death Penalty

Last Public Execution in America

2010-08-14T17:15:00.001-04:00

Last Public Execution in America

2010-08-14T17:15:00.000-04:00

Review Needed Before Death Warrants Signed

2010-05-25T20:55:00.003-04:00

From The Frankfort State Journal May 25, 2010 by Donald Vish

Review Needed Before Death Warrants Signed

Similar punishments for similar crimes committed by similar people acting under similar circumstances are the foundation of the criminal justice system. On this foundation stand essential constitutional and public policy pillars of due process, equal protection and proportional punishment.

Recent aggravated murder cases show a disparity in death penalty cases so divergent, so inexplicable and so extreme that the death penalty is called into question as a matter of public policy.

In the last two years, for example, a serial killer, a child-killer rapist and a $1000 dollar hit man got life sentences rather than death. One prosecutor immediately changed a death penalty case to a life without parole case simply because the prosecuting attorney made a mistake requiring a new trial.

To determine the proper symmetry of aggravated murder cases and capital punishment it is necessary to look at a universe of cases in which
Similar crimes got the death penalty
Similar crimes did not get the death penalty
Similar crimes were not prosecuted as death penalty cases.

While this three-pronged method of review is not required under Kentucky statutory law mandating proportionality reviews of all death sentences or the United State Constitution as interpreted by the United States Supreme, the extraordinary disparity in outcome of potential death penalty cases is troubling enough to justify a broad inquiry by the governor before signing a death warrant.

The governor has vast clemency powers without constraints and virtually beyond review. The drafters of Kentucky's constitution made a plenary grant of executive power to enable the chief magistrate do justice on a plane beyond the minimum required by statute. Confidence in the justice system can only be achieved by finding a reasonable explanation for a disparity that is now inexplicable.

May 25, 2010
Donald Vish, Kentucky Coalition to Abolish the Death Penalty, Louisville

Wolf Pen Branch Mill Farm (1820-25)

2010-05-22T16:49:00.006-04:00

This 430 acre working farm in Jefferson County (Louisville) is a rare jewel. Owner Sallie Bingham has granted a conservation easement for the farm ensuring its preservation.

Airborne @ Churchill Downs

2010-05-03T19:43:00.000-04:00

Churchill Downs, Derby Week

2010-05-03T19:36:00.001-04:00

Spring

2010-03-09T20:24:00.001-05:00

Keeneland Race Course (Racing the Way it Was Meant to Be)

Text of Remarks Kentucky Libertarian Party Annual Convention

2010-02-26T15:56:00.007-05:00

The Death Penalty is Killing Itself

Text of Remarks

To the

Kentucky Libertarian Party
February 27, 2010
Lexington, KY

The Death Penalty is Killing Itself

By

Donald Vish
Kentucky Coalition to Abolish the Death Penalty

Thank you for entrusting your podium to me. We all know there’s no thief worse than a bad speech to a captive audience. A wise old stump speaker from that place I’ll just call ‘down-home’ once told me that the worst speakers make speeches that are always fixin’ to get ready to get started. I am not going to do that. I’m going to get to the point right away which is this: the death penalty is too broke to fix, to risky to use and too expensive to keep. It is the penal equivalent of Russian roulette: ruled by the laws of chance that most of the time make nothing happen.

But we may be on the verge of a lot happening. The attorney general has requested three death warrants from the governor. Before the governor could act on the request in November, the Kentucky Supreme Court suspended executions in Kentucky until the Kentucky Department of Corrections published the details of the procedures it uses for executions and took public comments on the procedures. Those steps have been taken and the execution protocols are on their way to the governor’s desk for signature. On their way to the governor’s desk, the procedures must go through a legislative committee. The governor has said he will sign the protocols when they arrive. So execution procedures could be back on the books by April or May which means Kentucky could have multiple executions in 2010: at least three and this in a state that has executed only four people in the last 53 years.

Lethal Injection: Humane Executions

The Holy Grail of modern civilized executions is to have someone dead, not to make someone dead much less to actually kill anyone. The civilized execution seeks to perfect a process that has only a past tense, a protocol that takes the dying out of death and the killing out of killed. Civilized killing aspires to be a sentence without a verb. In a perfect execution, nothing happens, there is no beginning or middle and the end is always in the remote past. The coroner has to announce later that it happened earlier. The civilized execution is a perfect demonstration of the proverb: nothing produces nothing made all the more remarkable by having done it with nobody.

In the humane execution the actual executioner is merely unknown but in the perfect execution lethal injection strives to achieve, there is no executioner, a perfect illustration of the dictum: everybody’s business is nobody’s business.

The humane execution is choreographed to occlude its entanglement with brutality, barbarism, violence or a freakish and lingering death, to silence the voice of pain. So the body sleeps in muscular paralysis so one knows if it wakes up.

The execution is disguised to resemble a medical procedure. Trappings of humanitarianism, healing and kindness conceal the reality: there’s a noose in the needle.

Death Penalty History Condemns Itself

The modern history of death penalty in Kentucky undermines its own credibility as a just, legitimate and effective instrument of public policy. Since 1956, there have been thousands of murders committed in Kentucky and many were eligible for a death sentence.

Today, there are 35 people on death row and four people have been executed in the last 53 years.

Kelly Moss was electrocuted against his will in 1962; Harold McQueen was electrocuted against his will in 1997; Eddie Lee Harper decided to stop his legal appeals and requested execution by lethal injection in 1999; Marco Chapman dismissed his lawyers and his legal appeals and was executed by lethal injection in 2008.

The modern history of the death penalty in Kentucky mocks itself as a penal option that is intended to deter crime, exact retribution for heinous murders and provide society with the comfort and closure that comes from knowing that justice will be done though the heavens may fall.

How can four executions in 53 years deter anyone from doing anything? What does it say to victims’ families, friends and society at-large that out of thousands of murders in 53 years only 4 were deemed sufficiently heinous to merit execution? What is the citizenry to make of a system that can take up to thirty years to conclude its official deliberations?

What are judges, law enforcement officials and citizens to make of a justice system that seems to select for execution only those murderers that share, shall we say, certain similar demographics and even ‘geographics’? And how shall we reconcile our social and civic and legal commitment to fairness and the even-handed administration of the law with the knowledge that innocent people have been sent to death row?

The Death Penalty Doesn’t Work

The death penalty is a failure on every level: legal, social, political, penal, financial and moral.

First, there is no way to kill humanely.

Secondly, there is no way to kill in compliance with constitutional procedures.

Thirdly, there is no way to kill without the risk that innocent people will be executed.

Fourthly, administration of the death penalty has failed to deter heinous murders in Kentucky and to exact proportional retribution for and from the worst of the worst.

Finally, the people are not getting their money’s worth from an unnecessary system that serves no penological purpose.

In Kentucky, the death penalty makes nothing happen.

Nationally, it is sanctioned by the law of the land but seems to be ruled by the law of unintended consequences when it is not being ruled by the Fourth Law of Thermodynamics (also known as Murphy’s Law). A recent example of Murphy’s law is furnished by a lethal injection attempt in Ohio where a prisoner in the death chamber was repeatedly stuck with a needle to administer the lethal drugs but was eventually sent back to his cell when the prison personnel could not find a vein to use. And a recent example of the law of unintended consequences is furnished by an FBI report that showed states with high death penalty usage have a higher murder rate!

Law of Lightening

Imposition of the death penalty has been analogized to the capriciousness of lightening. The comparison is unfair. It is much easier to predict WHERE the death penalty will be used than to predict where lightening might strike. The death penalty has a measurable geographic vortex. The geography of the death penalty is so pronounced that it is an exercise of poetic license to say the United States endorses the death penalty. Actually, most places in the United States do not use the death penalty.

Since the death penalty was reinstated in 1977

• more than two-thirds of American counties have never imposed it and
• Only 3 percent (92 out of 3,066) of the nation’s counties have generated 50 percent of its death sentences.

Death Penalty Use is Limited and in Decline

The death penalty has become an embarrassment to our legal system. Its administration has undermined public confidence in the way the law works. The best thing its supporters can say about it is the best thing its opponents can say about it: it’s not used very much.

In fact, in some precincts, both social and geographic, it’s not used at all.
In 2009, eighty-seven percent of executions in the United States were in the south, and over half of those were in Texas. A single county in Texas has furnished more than 33 percent of the state’s death row population.

While 35 states have the death penalty, executions are clustered in just a few. There have been 1,188 executions since 1977 and 54 percent of those have come from three states: Texas, with 447 (37.6 percent),Virginia with 105 and Oklahoma with 91.

Even where the death penalty is used, its use is declining. There were fewer death sentences in 2009 than any year since executions resumed in 1977. Death sentences reached a high point in 1994, 328, and since then have declined 63 percent. 2009 is the seventh straight year the number of death sentences has declined.

Deterrence

Justification for the death penalty has been based on the penal goals of deterrence and retribution. But in 10 of the 12 states without capital punishment, the homicide rates are below the national average and FBI data shows that half of the states with the death penalty have murder rates above the national average. A New York Times analysis found that over the last 20 years, states with the death penalty have murder rates between 48 percent to 101 percent HIGHER than states without the death penalty (December 14, 2009 New York Times.)

Retribution

Gallup polls show that among those who support the death penalty, retribution is most often cited as the reason. A June 30, 2006 Gallup poll, citing a 2003 Gallup study stated:

The reason is very likely their concept of justice. According to a 2003 Gallup study, close to half of Americans who supported the death penalty cited some aspect of retribution for the crime as the reason. [An October 13, 2009 Gallup Poll updates public opinion on the death penalty reporting 65% of Americans continue to support the use of the death penalty for persons convicted of murder, while 31% oppose it -- continuing a trend that has shown little change over the last six years. ]

The most recent 2009 Gallup poll on death penalty support does not update the 2003 findings about the reasons for support of capital punishment nor does it update the 2006 finding, quoted in the 2009 study:

An Explicit Alternative to the Death Penalty? Gallup research has found that support for the death penalty is lower if Americans are offered an explicit alternative -- "life imprisonment, with absolutely no possibility of parole." In May 2006, for example, 65% of Americans supported the death penalty in general (matching the current figure),while,separately,47% said they preferred the death penalty to life imprisonment as a penalty for murder when given that choice (48% favored life imprisonment).

The Gallop finding is consistent with a 2006 University of Kentucky poll that found 67% of Kentucky residents questioned preferred a long prison sentence over execution for those convicted of murder. As part of a larger statewide survey in August and September, 2006 the University of Kentucky Survey Research Center asked 836 randomly selected Kentuckians over age 18 which of five possible punishments was most appropriate for someone convicted of aggravated murder.

Findings include:

• 36.2 percent favored life with no possibility of parole.
• 31.4 percent favored one of three other prison sentences: life without parole for 20 years, life without parole for 25 years, 20 to 50 years with no parole possible until 85 percent of the sentence is served.
• 30.5 percent favored the death penalty.

Balancing Retribution with Risk of Executing the Innocent

Gallop surveys have stated the retribution case in four ways: 1) the punishment fits the crime (37%); 2) the criminal deserves the punishment (13%); 3) it is fair 3%) and 4) it serves justice (4%) (Gallop Poll June 30, 2006 citing a 2003 Gallop survey) most of which may be summed up in the dictum ‘an eye for an eye.’

So the retribution case has two overarching formulations: (1) the punishment fits the crime (37%) and (2) the criminal deserves the punishment (20%).

When New Mexico abolished the death penalty in 2009, Governor Richardson acknowledged the retribution theory. But he rejected the practice because of the possibility of executing an innocent person. He concluded that life in prison without possibility of parole was a just penalty and adequate retribution perhaps even worse than death.

Governor Richardson’s concern about executing the innocent is well founded. Since 1977, 139 death row prisoners have been exonerated (in most cases ‘exonerated’ means the defendant was acquitted upon retrial and in a handful of cases ‘exoneration’ means the defendant was declared innocent based on DNA evidence). And now there is a 2009 report commissioned by the Texas Forensic Science Commission that points toward the conclusion that Texas executed an innocent man in 1991. Cameron Todd Willingham was electrocuted in 1991 for the arson murder of his three children. The new report finds that the arson claims were not sustainable (although this finding is hotly contested by some law enforcement officials). Resolution of the matter awaits adjudication by the State of Texas but progress is on hold since the Governor recently changed the composition of the committee assigned to sort out the facts and findings.

In Kentucky, the very recent Louisville case of Edwin A. Chandler is cause for grave concern. The judge that released Chandler in 2009 apologized to him from the bench (he was not the original sentencing judge) and called his case a miscarriage of justice. Chandler served nine years in prison for a murder he did not commit during a robbery he had nothing to do with. He could have received the death penalty.

Chandler’s innocence claims were corroborated by an eye witness that called the police and said that Chandler was not the shooter (but the witness was never called to testify at trial), by a fingerprint and DNA sample at the crime scene that was not found until years later and by a convenience store surveillance tape that the police lost before Chandler’s trial. The jury that convicted Chandler was ‘death qualified’ during voir dire meaning the state could have asked for the death penalty. But by closing argument it did not even though Chandler was convicted. The jury decision was based in part on the strength of Chandler’s actual confession to the crime which he said he made it in response to a threat by police to prosecute his family for being criminal accessories to murder if he did not.

Policy Conundrums
Retribution with Kindness

Administration of capital punishment requires navigating between the separate worlds of too much and not enough. The dual imperatives of getting more blood for blood in a humane way while at the same time satisfying the sense of equivalence that distinguishes retributive justice are impossible to reconcile.

How can a punishment informed by a sense of justice that imposes retributive equivalence be harmonized with the quest for a painless execution? How can the state methodically kill a person as an act of just retribution and at the same time comport with standards of decency that distinguish a civilized society? How can killing be kindness? How does the state reconcile the conflicting imperatives of retributive equivalence and humane execution?

Dr. Alfred P. Southwick thought he had the answer to the question in 1890 after ten years of work on his invention: the electric chair. Upon witnessing its first jolt in 1890 on killer William Kemmler, Dr. Southwick exclaimed:

There is the culmination of ten years work and study! We live in a higher civilization from this day.

Dr. Southwick didn’t know it when he spoke but the first jolt failed to kill Kemmler and George Westinghouse later said of the messy execution that ensued:

It could have been done better with an ax.

Lethal injection is the direct successor to Dr. Southwick’s 19th search for a method of premeditated, ritualized and efficient killing that demonstrates that we live in a higher civilization. Other methods have proved to have too much potential for misadventure to compete for the oxymoronic title of humane killing.

Legal Conundrums

Capital punishment has placed the constitution on a collision course with itself. On the one hand the constitution requires wise discretion applied to the special facts of every death penalty case and on the other hand the use of an objective, uniform standard consistently applied to all persons in all death penalty cases. In reinstating the death penalty in 1976, the U. S. Supreme Court approved state death penalty laws that yoked together the two disparate requirements under a due process template of the Model Penal Code called "guided discretion." But guided discretion is a contradiction of terms: the more there is of one, the less there is of the other. As a result, the 'guided discretion' templates aims for a very narrow target, perhaps a theoretical target, and is always in danger of erring either on the side of arbitrariness or on the side of inflexibility. The difficulty in applying the guided discretion standard is the reason why so many death penalty cases are reversed and retired and why the appeals are so protracted.

In 2009 The American Law Institute (ALI), the author of the Model Penal Code withdrew the standard from the model penal code … in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.The reauthorization of the death penalty by the Supreme Court was predicated on this standard which the ALI has now withdrawn. The ALI legal consultants that evaluated how the template has fared since 1976 have declared it a failure.

At some point, the courts will have to confirm the ALI’s conclusion.

Conclusion

The death penalty has failed as a matter of law and social policy.
The death penalty is not compatible with central values of our constitution: justice and basic fairness. It is impossible to formulate workable procedural rules in harmony with substantive legal requirements of eliminating arbitrariness and discrimination while achieving fundamental fairness through individualized sentencing.

The mere possibility of prosecutorial misfeasance or malfeasance in a death penalty case or the possibility of executing the innocent together with evidence of discrimination, including geographic discrimination, protracted litigation that seems to turn on technicalities collectively damages the legitimacy of the law and the credibility of the legal system.

No combination of procedural rules, substantive regulations, death protocols and eventless executions can save the death penalty from the genealogy from which it derives its inherent barbarism, its humane deficiencies, its premeditated cruelty and its costly failures.

The death penalty is killing itself.

DV
2968 words/ 25 minutes
February 26, 2010

Facts about the Death Penalty
(As of December, 2009)

35 states have the death penalty
15 do not
New Mexico and New Jersey abolished the death penalty in 2009 and 2006.
1170-- Number of executions since resumption of executions in 1976
1999-- Stands as the year with the most executions—98
2009—34
2008—37
2007—42
2006 – 53
Race of defendants: W-57%, B-34%, H-7%
Race of victims: W-79%, B-14%
Race of death row inmates: B-42%, W-45%
Exonerations through 2009 in 26 states—139
Since 1999, number of death sentences has dropped dramatically:
1999 2000 2001 2002 2003 2004 2005 2006 2007 2008
Sentences 284 235 167 169 153 140 138 121 115 111 (2008 is projected)
Kentucky Death Row 36 (includes one woman)
Gallup Poll: October 2008 Gallup Poll found overall support for death penalty was 64% (80% in 1994). Poll also revealed when respondents are given choice of life without parole as alternate sentencing option, more choose life without parole (48%) than death penalty (47%). http://www.gallup.com/poll/111931/americans-hold-firm-support-death-penalty.aspx (11-17-2008).
Number of Executions before 1976 424
Current Kentucky Death Row Population 36
Women on Death Row (Kentucky) 1
Southern states accounted for 95 percent of the executions in 2008. Texas accounted for 16 of 32 executions as of August 2009 and over 37 % of all executions in the U.S since 1977. Over 33% of the prisoners on Texas Death Row come from the county where Houston is located. In 2007 (the last year for which statistics are available), juries throughout the United State returned 115 death sentences. Over 60 % were in the South. A 2002 study found that 2/3rds of American counties have never imposed the death penalty since 1977. Only 3 % (92 out of 3,066) of the nation’s counties account for 50 percent of its death sentences in that 32 year period. When the U.S. resumed executions in 1977, only 16 nations had abolished the death penalty; the number has since grown to 135 (60 retain) (FL Bar 10-01-09—11). Five nations are responsible for +90% of the world’s executions: Iran, Pakistan, Saudi Arabia, China - and the United States.

The Death of the Death Penalty

2010-01-19T19:03:00.005-05:00

The Death of the Death Penalty

The death penalty is dead. Killed not by judicial fiat or parliamentary maneuver or executive order but by the people. Juries comprised of citizens who swear they support the death penalty in principle have simply quit imposing it in practice.

There have been four executions in Kentucky since 1956. Two involved inmates who dropped their appeals. Scarcity can be a sign of selectivity but the rarity of executions in Kentucky goes beyond selectivity and enters the realm of freakish oddity.

The death penalty record in Kentucky support two conclusions:

1) It no longer serves a law enforcement purpose;
2) It offends Kentucky’s evolving standard of decency.

The supreme court case that resulted in the upcoming public hearings on execution techniques did not rule that the death penalty is legal--only that its machinery must be tinkered, tuned and tended in public.

The U.S. Supreme Court case that reviewed lethal injection in Kentucky did not rule on the legality of the death penalty but only a particular method of execution based upon a particular limited record about a particular regulation that we now know was not properly adopted.

The Kentucky Supreme Court should next address capital punishment head on not to abolish it on its own authority but by ruling that the people already have, secure in the knowledge that life in prison without parole protects the public and punishes the criminal.

Compassion

2010-01-16T08:29:00.001-05:00

How Do We Enlarge the Great Circle of Compassion?

A Homily Prepared for Delivery
January 17, 2010
National Coalition to Abolish the Death Penalty Annual Meeting
Louisville, KY

By: Donald Vish

***  

Thank you for inviting me to present a homily on compassion. We all know there’s no thief worse than a bad sermon. So special thanks to each of you for your presence, your trust and your faith in coming to this room.

  My invitation included specific instructions to answer the question:

  How Do We Enlarge the Great Circle of Compassion?

  I’m going to answer that question. I’m just not going to answer it very quickly. I wouldn’t be a very good preacher if I got to the point too soon.

  The Golden Rule: (Say it. You know the words): do unto others as you would have others do unto you.  

That’s a good rule of good sense. It’s valuable as a cornerstone of justice. It’s a solid metric for fairness. It’s true in the same way it’s true to say: whoever smiles will always have a reason to smile.

  But the Golden Rule is not an expression of compassion.  

First, it affirms otherness, thee and me that leads to thine and mine. Secondly, it is ever so slightly animated with self-interest expressing in Elizabethan language what the 3-card Monte dealer says more plainly about the arc of justice: what goes around comes around.  

Plato’s dictum comes closer to compassion: be kind, everyone you meet is fighting a hard battle.

  Plato’s sermon is built on empathy not compassion. Empathy is based on perception, understanding. Empathy is neither sympathy nor pity each of which relates to the adverse impact someone else’s suffering has on us!   Sympathy means ‘fellow feeling’ and requires a certain degree of equality. Pity, on the other hand, regards its object as weak and hence as inferior.  

Compassion is the selfless disposition to relieve human suffering. It soars above empathy and sympathy and pity. Compassion is the noblest trait of human nature. Dante would call it caritas, pure love with no expectation of a quid pro quo.  

Make no mistake: many good works are built on the Golden Rule, on empathy, on sympathy, on pity and on lesser motives like fame and glory and vanity and self-interest. They all count. But compassion is in a class by itself.  

When General Agamemnon was ready to launch 1000 ships to invade Troy, he had two problems: the first one is so typical of blood vengeance—no one knew how to get to Troy. Blood vengeance is always ready to act before its ready to act. Vengeance never misses an opportunity to miss an opportunity. It is ever and always aimless and misdirected even though its arc is predictable and certain: it comes around then goes around.   

Like Macbeth’s vaulting ambition, vengeance o’erleaps itself and falls on th’other side of reason.

  Agamemnon’s second problem was the lack of wind. The ships could not sail. So he made a bargain with the gods—he sacrificed his daughter for a favorable breeze. Then the ships sailed for Troy and war began.

Agamemnon’s murder of his daughter ensured that he would return home from war to more war.   Under the law of blood vengeance, his daughter’s mother was obligated to murder him—and she did; and under the law of blood vengeance her son was obligated to murder her—and he did; and under the law of blood vengeance, her daughter was obligated to murder her brother…and so it goes.

  The arc of vengeance is as sure and as certain as the laws of mathematics: a series ending where it begins, and repeating itself.   Those words are the dictionary definition of a circle—as well as a complete treatise on blood vengeanc.

Like a pebble dropped into a pond, vengeance sends out ripple after ripple each extending its sphere until it runs out of space or spends itself.

Vengeance is a circle.   A circle delineates, it defines and separates the inside from the outside. The circle is closed. Any segment of a circle is a curved line.

  In architecture, a curved line is pretty but it’s weak. Leonardo reflected on the weakness of curved lines and made an astounding observation: two curved lines when propped up against each other form an arch: one of the strongest formations in architecture. So an arch is a strength created by two weaknesses.

  Here’s the answer to the question—enlarge the circle of compassion by never closing it.

  Keep the circle open. Reach out, join hands with one another in a tangible display of unity, solidarity and connectedness; but let those on each end extend an open hand to the world at-large as an invitation to others to join hands.  

Let the circle of compassion be like Leonardo’s arch, a strength comprised of many weaknesses.

  January 12, 2010  777 words 7 minutes 55 seconds

Syllabus: Law & Literature @ Brandeis School of Law

2009-12-16T09:22:00.013-05:00

LAW & LITERATURE
SPRING 2010

Poets are the unacknowledged legislators of the world.
---Percy Bysshe Shelley

LAW & LITERATURE
Spring 2010 / Louis D. Brandeis School of Law / University of Louisville
Donald Vish, lecturer
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Course Description

This course will present insights into the nature of law and social justice through the prism of literature. Each class will explore timely and timeless topics arising out of the search for justice. How can Orestes extricate himself from the duty to avenge the murder of his father by killing his own mother? How shall Captain Vere punish Billy Budd’s reflexive act that results in the death of a superior officer aboard ship in wartime? How is Antigone to obey the religious law requiring her to bury her brother and the state’s decree that she may not? Justice is a pendulum that swings between the letter of the law and the spirit of equity. We shall plot the course of justice through the eyes of art and the imagination of storytellers. Poets and litterateurs are the unacknowledged legislators of the world. ____________________________________
Lecture #1: INTRODUCTION
[January 7, 2010]
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Course Syllabus

Basis of grading: Either four papers written as book reviews for each of the four principal literary assignments will be 80% of the grade or one paper using each of the four principal works to define and describe the nature of justice in not less than 2500 words nor more than 4000. Class participation will be 20% of the final grade (discuss this with students.) Each paper should be less than 750 words and relate the story line or a character to the important legal principles you discern in the text. We are interested in the story line ONLY as it impacts law and justice issues. The paper is due at the beginning of the class at which the piece is to be discussed. Good reportage is a “C” and superb insight and analysis is an “A.” Class participation means responding when called on as well as gratuitous participation in class discussions and raising helpful and provocative questions and comments. Knowing the lesson will earn a “C” or “B” whereas participation distinguished by obvious analytical thought will earn an “A.” If you feel the class has concluded without affording an adequate opportunity for you to shine, you may email me your extended remarks within 24 hours of the class at donaldvish@middreut.com and they will be considered. A class ombudsman committee of three will be appointed to present any complaints, suggestions and requests that an individual student may not want to present personally to the lecturer.

Read the rest of this post . . . .

Class plan: There will be thirteen lectures between January 7 and April 15. Four key literary works will be considered in lectures #4 (January 28), #7 (February 18), #10 (March 25), and #12 (April 8). Other literary works and fragments treating law and justice themes will be discussed in the intervening lectures. It is NOT necessary for you to read or read about any item marked with an asterisk (*). The material marked with an asterisk (*) will be referenced and described by the lecturer during the class.
Facebook: A class Group Page has been created under the title: Law & Literature @ Louis D. Brandeis School of Law. Weekly assignments will be posted along with discussion opportunities.

Textbooks: (1) Law and Literature: Text & Theory (paperback edition) edited by Lenora LEDWON (1996, Garland Publishing, Inc) [$40.00 new from Amazon, some used at $22.00]; and (2) Richard A. POSNER, Law and Literature (Revised and Enlarged Edition) [Harvard University Press, 1998]. (Referred to as POSNER or LEDWON in this Syllabus). (See LEDWON pp. 102 for a critique of the POSNER view of law and literature).

Major Resource on line: LAW & HUMANITIES: a Bibliography of Law and Literature, Professor Daniel L. Solove, The George Washington University Law School (this is a tour de force, consult it before each class to see if there is anything that interests you or helps you with the assignment). http://docs.law.gwu.edu/facweb/dsolove/Law-Humanities/writers.htm

Reading assignments: many can be accessed online.

The following works may be purchased from Amazon.com and delivered for less than $100.00 or may be read through excerpts available in the two textbooks. Only Billy Budd, Sailor must be read in its entirety. Here are the major literary works:

1. William Shakespeare, The Merchant of Venice (Oxford World's Classics: the Oxford Shakespeare) Jay L. Halio (Paperback - 2008) or see LEDWON pp. 63-65, 297-310 and POSNER pp. 65, 87-88, 103,110, 111, 123, 126, 143, 150, 189, 243, 321, 397. Also read the plot outline or story synopsis of Shakespeare’s Measure for Measure by POSNER pp. 114-121, 123-124, 126, 143, 150, 244, 398-399. Lecture # 4, January 28, 2010.

2. Aeschylus, The Orestia (Paperback) Agamemnon, The Libation Bearers and The Eumenides (525-456 B.C.E). (Penguin Classics) by Aeschylus, W. B. Stanford, and Robert Fagles (Paperback - Feb 7, 1984) and see POSNER 60-66, 83, 121-122 and also http://en.wikipedia.org/wiki/The_Oresteia Lecture # 7, February 18, 2010.

3. Herman Melville, Billy Budd, Sailor (An Inside Narrative) (1924) (Harrison Hayford & Merton Seals, eds. U. Chicago Press, 1962). Please use this edition and read the work in its entirety along with the essays, commentary and observations about the story. Lecture #10, March 25, 2010. In addition, see POSNER pp. 122,149-50, 162, 163, 165-173, 179, 181, 242.

4. Albert Camus, The Stranger (1942) [Student Guide, Landmarks of World Literature] by Patrick McCarthy, Paperback 2004. (Especially Part Two, the trial) or see POSNER pp. 40-48, 151, 162-164, 176-177, 223, 321. Lecture # 12, April 8, 2010.

5. Franz Kafka, The Trial [introduction by George Steiner] A. A. Knopf, Inc. Schocken Books, Inc. ISBN 0-8052-1040-7 or see POSNER pp. 129-140, 176, 184-185, 188, 192, 238, 240, 241 and LEDWON pp. 63-65, 255-256. Lecture # 15, April 29, 2010. [CANCELLED, classes end April 19, 2010].

Literary fragments, excerpts and the expository prose and poetry are identified in the assignments section of each lecture plan. If you have trouble finding the text online, please let me know by email. If you elect to write one paper you can begin right away and proceed during the semester at your own pace. If you elect to write five papers, one on each of the principal literary works, the paper is due at the beginning of the lecture at which the work will be considered.

The Study of Law and Literature

The law and literature movement focuses on the interdisciplinary connection between law and literature. This field has roots in two major developments in the intellectual history of law -- first, the growing doubt about whether law in isolation is a source of value and meaning, or whether it must be plugged into a large cultural or philosophical or social-science context to give it value and meaning; and, second, the growing focus on the mutability of meaning in all texts, whether literary or legal. Those who work in the field stress one or the other of two complementary perspectives: law in literature (understanding enduring issues as they are explored in great literary texts) and law as literature (understanding legal texts by reference to methods of literary interpretation, analysis, and critique). From Wikipedia http://en.wikipedia.org/wiki/Law_and_literature

Journals: Law and Literature 

The Cardozo Studies in Law and Literature, a leading journal on the subject for many years, has changed its name and is now part of the University of California Press (access requires subscription): http://www.ucpressjournals.com/journal.asp?j=lal 

Lawyers and Literature 

Website created by James Elkins, Professor of Law, West Virginia University, for his course on lawyers and literature.

Assignments for Class #1:
1. Book of Genesis: 4:1-24 The Story of Cain and Abel: 9:6, the law as explained to Noah. Is the judge fair? Is the punishment just? What is the nature of the justice system in the story? Identify all of Cain’s crimes. Which is the most serious? What does it mean to be avenged sevenfold? Is Lamech a murderer? Is he punished or protected?
2. Psalm 19, 7-11. What are the elements of a good legal system according to Psalm 19? Where does the law originate? What is its source, its authority? Does the source of the law in Psalm 19 have anything in common with the United States Constitution or the Declaration of Independence? Does crime pay?
3. Dante, The Divine Comedy Canto V, XX, XXVIII line 142, XXXIV [Google the word ‘contrapasso’ with Dante’s name]. Is Cain’s punishment consistent with Dante’s theory of contrapasso? What exactly is Cain’s punishment(s)? Did God provoke Cain?

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Lecture #2 and #3: WORDS
[January 14 & 21, 2010]
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Assignments for Classes #2 and #3:
1. Mr. Justice Holmes, dissent Lochner v. New York, 198 U. S. 45, 74 (1905) (Holmes, J., dissenting). See LEDWON pp. 77-82.
2. Richard POSNER, Law and Literature A Relation Reargued, Virginia Law Review 72, 1986, IV A. Rhetoric and Knowledge and especially his critical discussion of Justice Holmes’ dissent in Lochner “…a rhetorical masterpiece.” How can Judge POSNER reconcile his criticism and his praise? Does POSNER approve of the use of rhetoric in the law? LEDWON, pp .77-82.
3. Through the Looking Glass by Lewis Carroll  Chapter VI Humpty Dumpty (his digression on words) http://www.sabian.org/Alice/lgchap06.htm
4. Harper Lee, To Kill a Mockingbird, Chapter 19 (Mr. Gilmer’s cross examination of Tom Robinson. Begin with Tom Robinson’s answer to the last question posed by Atticus Finch. p. 386 of Law & Literature: Text & Theory, edited by Lenora LEDWON (New York, 1996). See, LEDWON pp. 383-401.
5. Benjamin Franklin, Poor Richard’s Opinion. LEDWON, pp. 469.
6. Alice’s Adventures in Wonderland, Chapter XI, Who Stole the Tarts? and Chapter XII, Alice’s Evidence. See, LEDWON pp 454-462.
http://www.aliceinwonderland.com/ch11.html / http://www.aliceinwonderland.com/ch12.html ALICE'S ADVENTURES IN WONDERLAND/by Lewis Carroll/THE MILLENNIUM FULCRUM EDITION 2.7a/(C) 1991 Duncan Research

It is not necessary to read the following work (s) that will be cited or explained during the lecture:

*7. Ovid, Metamorphoses Book 12 (612-631), and Book 13 The Judgment of Arms (1-393). Upon the death of the great warrior Achilles on the battlefield of Troy, two people claim his sword and shield. An assembly is convened to hear the evidence and decide who is worthy: the wily Odysseus or the warrior Ajax. Each makes their case their case to the jury. http://www.mythology.us/ovid_metamorphoses_book_13.htm. The lesson from this debate is in the last 16 lines of the report.
*8. Aristophanes, The Clouds (419 BCE, Greece). A man wants his son to study rhetoric in order to learn to talk his way out of debt.

*9. The Internet Encyclopedia of Philosophy, Protagoras of Abdera.http://www.utm.edu/research/iep/p/protagor.htm Author Information: Carol Poster  Email: cposter@english.fsu.edu  English Department State University FL 32306.

*10. Plutarch, Solon. Athenians used to cover up the ugliness of things with auspicious and kindly terms, giving them polite and endearing names.

*11. Apollodorus of Athens (born c. 180 B.C.E.) (The Library 3.180), Pausanias and Suidas both recount the myth of the rape of Ares’ daughter Alkippe by Poseidon's son Aalirrhothios. Ares slew the rapist and was tried by the gods for murder upon the Arepagos. The trial was held on the Hill of Ares overlooking Athens. The trial raises the following questions? Why was the trial held at night? What role did rhetoric play in the trial? What is the “Areopagus”? See also Pausanias, Guide to Greece 1.28.5. Who was Apollodorus and what role did he play in the courts of Athens?
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Lecture # 4: JUSTICE, LAW & MERCY
[January 28, 2010]
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Assignments for Class #4:
1. William Shakespeare, Merchant of Venice (1597) (Oxford World's Classics: the Oxford Shakespeare) by William Shakespeare and Jay L. Halio (Paperback - May 15, 2008) or see POSNER pp. 65, 87-88, 103-111, 115-121, 123, 126, 143, 150, 189, 243, 282, 321, 397 and LEDWON pp.297-310. Lecture # 3, January 21, 2010. See especially Portia's argument, The Merchant of Venice, IV, i. What does the play have to say about law and equity? Also read the plot outline, story synopsis and commentary
on Shakespeare’s Measure for Measure by POSNER, see Lecture #5. See especially POSNER’s observations about unpopular minorities trust in a rigid legal system.
2. Steiker, Carol S. Lecture on the role of mercy and the administration of criminal justice (one hour, begins 14 minutes into tape, the lecture is less than an hour): Watch a webcast of Professor Steiker's lecture. (RealPlayer Required) @ http://www.law.harvard.edu/news/spotlight/criminal-law/03_steiker.html (using fiction to illustrate truth). The following text is read in the preceding film clip:
3. Austin Sarat, Nasser Hussain, Forgiveness, mercy, and clemency, Mercy and the Administration of Criminal Justice by Carol S. Steiker [22 pages, Google Books, http://books.google.com/books?id=KOAoQiRFo70C&pg=PA16&lpg=PA16&dq=Steiker+mercy+justice&source=bl&ots=..
4. O’Henry. Summarize the two O’Henry stories citedd by Professor Steiker. Can the two stories be reconciled?

It is not necessary to read the following works that will be cited by the lecturer:

*5. Dan Markel, Against Mercy, Florida State University College of Law Minnesota Law Review, Vol. 88, 2004

*6. New Testament: The Gospel of John 8:1-11. The Scribes and Pharisees bring the adulteress to Jesus for execution by stoning. Confer, The Hebrew Bible: Micah 6:8; Zechariah 7:9.

*7 New Testament: The Parable of the Workers in the Vineyard Matt: 20:1-16. Equal pay for UN-equal work.

*8 Do unto others as you would have others do unto you. Matt: 7:12

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Lecture #5: LESSONS FROM SHAKESPEARE: JUSTICE, LAW & MERCY
[February 4, 2010]

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Assignments for Class #5:
1. POSNER Measure for Measure pp. 114-126 (law and equity, rigidity and flexibility), 143, 150, 244, 398-399 (plagiarism). Define the word desuetude and be prepared to say what you think of it.
Shakespeare, Measure for Measure (1604): This play is the best introduction to Shakespeare’s overall view of the law. While The Merchant of Venice has received more legal commentary, Measure for Measure has more legal themes: for example kill all the lawyers… What happens to mercy and the law in this play? What does the play have to say about morality and the law and corrupt judges? How is Angelo like Creon, Captain Vere and Draco? What is the penalty for fornication? Is it better to enforce laws strictly or equitably? Do you think the anti-fornication used to prosecute Claudio would violate his right to privacy in modern American law?
2. Bowers v. Hardwick, 478 U.S. 186 (1986) [upholding the Georgia sodomy statute.] Overruled in Lawrence v. Texas, 539 U.S. 558 (2003). Compare the opinion in Bowers to the legal themes in Measure for Measure: Extreme punishment/minor offense; law to enforce morals; is immoral also illegal? What is the importance of respect for the law in enforcement of the law? How does the law work when the source of law is power?
3. Victor Hugo, Les Miserables. Google or otherwise research Bishop Myriel and Jean Valjean and summarize the story of the candlesticks. Is this a story of justice, mercy or madness?

It is not necessary to read the following works that will be cited by the lecturer:
*4. Kornstein, Daniel J., A Scarecrow of the Law from Kill All the Lawyers: Shakespeare’s Legal Appeal (1994 Princeton University Press). This is a tour de force analysis of the Merchant of Venice and Measure for Measure as they enunciate theories of justice.

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Lecture #6: REVENGE & MERCY
[February 11, 2010]
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Assignments for Class #6:

1. Shakespeare, Hamlet (Paperback) the grave digging scene: Why not that be the skull of a lawyer? Where be his quiddities now, his quillities, his cases, his tenures, and his tricks? Hamlet, V, i, 99. See POSNER pp. 57, 75-92, 103, 156, 210-211, 222, 241, 243, 247-248, 285
2. The New Testament, Matthew 5:38: An eye for an eye… A law of mercy?

It is not necessary to read the following works that will be cited by the lecturer:

*2. Shakespeare, Henry V, IV, I, 132 (the "following orders" defense): Henry V orders the massacre of prisoners at Agincourt.
*3. Shakespeare, Timon of Athens. Pity is the virtue of the law. III, v, 8. Is pity the same thing as compassion? As mercy?
*4. Shakespeare, Taming of the Shrew I. ii, 277: Do as adversaries do in law, / Strive mightily but eat and drink as friends. Note: Does the ‘adversaries’ reference describe a system of law (the ‘adversarial system’) that is peculiar to England or does it pervade Europe. What other types of legal systems are alternatives to the ‘adversarial’?
*5. Shakespeare, The Winter's Tale: as she hath/ Been publicly accused, so shall she have/ A just and open trial. II, iii, 201.
*6. Shakespeare, Julius Caesar, III, 2. The funeral oration, a masterpiece of forensic oratory. See POSNER pp. 262-265.
*7. See Kill all the lawyers? Shakespeare's legal appeal By Daniel Kornstein (1994 Princeton University Press) Chapter 5 Skull of a Lawyer, Hamlet.

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Lecture #7: REVENGE & MERCY
[February 18, 2010]
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Assignments for Class #7:

1. Aeschylus, The Orestia (Paperback) Agamemnon, The Libation Bearers and The Eumenides (525-456 B.C.E.) (Penguin Classics) by Aeschylus, W. B. Stanford, and Robert Fagles (Paperback - Feb 7, 1984) and see POSNER pp. 60-66, 83, 121-122. And http://en.wikipedia.org/wiki/The_Oresteia . Lecture # 7, February 18, 2010.

2. POSNER, Chapter Two Revenge as Legal Prototype pp. 49-92.

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Lecture #8: REVENGE & THE NATURE OF LAW
[February 25, 2010]
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Assignments for Class #8:
1. Charles Dickens, The Trial of Bardell v. Pickwick [from The Pickwick Papers]; Why didn’t Bardell and Pickwick testify? What do you think of the reason? What does Mr. Perker think of hungry jurors? [Begin your reading at “I wonder what the foreman of the jury, whoever he’ll be, has got for breakfast,” said Mr. Snodgrass…..to “I know’d what ‘ud come o’ this here mode o’ doin’ bis’ness. Oh Sammy, Sammy….” POSNER pp.140-143, 176 (is the jury always a safeguard?).
2. Charles Dickens, In Chancery [from Bleak House]. What does the suit Jarndyce v. Jarndyce mean? LEDWON pp. 251-255 and POSNER 140-144]. (What do you think about justice being rendered according to the conscience of the judge or jury? How does equity fare in this story? Where is the pendulum now?)
3. POSNER pp. 49-92, Revenge as Legal Prototype. See also pp. 120, 121 (and try to add to the list). Compare the concept POSNER calls ‘composition’ (page 56) and the phrase ‘restorative justice’ (Google the phrase).

It is not necessary to read the following works that will be cited by the lecturer:

*4. Cicero, On Duties. On Duties, or On Obligations, has generally been the most popular of Cicero’s writings, and perhaps exercised more influence on thought and standards of the western world than any other secular work ever written. Michael Grant, Penguin Classics (1971): Book I. VII, 20 [role of justice and kindness], 21 [private property], 22 [duties to the state], 23 [foundation of justice], 24 [reason for crime], 26, 27 [injury and injustice], 28 [passive injustice], 29 [self-interest], 31 [the two principles of justice], 33 [chicanery], XI. 33 [limits to retribution and punishment], XIV. 42 [kindness and generosity], XVI. 50 [kindness], 51, 52 [public property], 63 [the soul of justice], 71 [duty to engage in public affairs], 87 [electioneering and scrambling for office], Book 2, 49, 50 [winning admiration through lawyering], 51 [capital charges against the innocent and defending the guilty], 66, 67[eloquence at the bar], 70, 71 [ representing the poor], 74 [property taxes], 78-80 [agrarian laws], 83 [impartiality], 84 [debt and public safety], 85 [courts of equity], Book 3, 54-57, 65-67 [a seller’s duty to disclose], 60-61 [criminal fraud], 69 [civil law versus moral law], 70 [good faith in contracts], 97 [doing evil to do good].
*5. Cicero, The Laws, Book One, 16-35. Where does justice come from? Is law synonymous with wisdom?
*6. Cicero, The Laws, Book Two, 37-40. What does music have to do with law? Why did Athens cut off strings from the instrument played by Timotheus? What would Plato think? See Plato, Laws 3. 700-1; Aristotle, Pol. 8. 5-7, Horace, Ars Poetica 202-19.
*7. Michel de Montaigne, Of Custom (1572-1574) (the last 14 paragraphs of the essay). What is Montaigne’s theory about the source of law? Would Montaigne support the idea ‘health care reform’ and innovation? Why does Montaigne think the legal reformer should wear a rope around the neck? What does Montaigne think about legal tricks and artifice?
*8 The Hebrew Bible, Exodus (21-23ff); Leviticus (24:17-20); Deuteronomy (19:21). Compare with Dante’s concept of contrapasso or counter-punishment.
*9. Rabelais, On Judge Bridlegoose and Lord John the Loony [from Gargantua and Pantagruel]. HOW PANTAGRUEL PERSUADED PANURGE TO SEEK COUNSEL OF A FOOL through PANTAGRUEL’S STRANGE TALE OF THE PERPLEXITIES OF HUMAN JUDGEMENT. Judge Bridlegoose decides cases by rolling dice.
*10. Kafka, The Problem of Our Laws: Our laws are not generally known; they are kept secret by the small group of nobles who rule us … for the laws were made to the advantage of the nobles from the very beginning, they themselves stand above the laws
*11. Piers Plowman (14th c.): Neede hath no law. Publilius Syrus, Necessity gives the law, but does not herself accept it. What do the two maxims mean? Who is Ananke (or Anance) and what role does she play in the law.
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Lecture #9: CRIME, PUNISHMENT AND LEGAL FORMALISM
March 2, 2010]
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Assignments for Class # 9:
1. Sophocles, Antigone (in THE OEDIPUS CYCLE) (441 B.C.E.) (Cambridge Translations from Greek Drama) (Paperback), David Franklin (Translator), John Harrison, Translator, P.E. Easterling (Introduction) or see POSNER pp. 63, 97, 98-100, 172. Lecture #9, March 4, 2010. How is Creon like Captain Vere?
2. Dante: contrapasso [Google the word with Dante’s name).
4. Walker v. Georgia 555 U. S. 1 (2008) (proportionality review).
5. 1 Kings 3:16-28: The Judgment of Solomon.
It is not necessary to read the following works that will be cited by the lecturer:
*6. Kristen M. Nugent. Proportionality and Prosecutorial Discretion: Challenges to the Constitutionality of Georgia’s Death Penalty Laws and Procedures amidst the Deficiencies of the State’s Mandatory Appellate Review Structure University of Miami Law Review (2009).  At: http://works.bepress.com/kristen_nugent/1 (look for ‘download the paper’ option in upper right hand corner).
*7. Plutarch, Lives: Solon [legendary Athenian lawgiver, died 539 B.C.E] written 75 C.E. translated by John Dryden http://classics.mit.edu/Plutarch/solon.html [this essay describes the architecture of a complete system of justice in Athens and compares it with the system of justice in Sparta]: First, then, he repealed all Draco's laws, except those concerning homicide, because they were too severe, and the punishment too great; for death was appointed for almost all offences, insomuch that those that were convicted of idleness were to die, and those that stole a cabbage or an apple to suffer even as villains that committed sacrilege or murder. So that Demades, in after time, was thought to have said very happily, that Draco's laws were written not with ink but blood; and he himself, being once asked why be made death the punishment of most offences, replied, ‘Small ones deserve that, and I have no higher for the greater crimes.
*8. Plutarch Lives: Lycurgus [legendary Spartan lawgiver, 800-730 B.C.E.]. Compare Solon with Lycurgus with Draco. What did Lycurgus think of music and the law? What did the Delphic Oracle think of Lycurgus’s laws? http://classics.mit.edu/Plutarch/lycurgus.html [this essay describes the complete system of justice in Sparta].

Friedrich Schiller (1789): Solon and Lycurgus were great and righteous men, but their laws differed greatly since they proceeded from principles diametrically opposed. The character of an entire people is the most faithful impression of its laws, and the surest judge of its value. Limited was the mind of the Spartan, and insensitive his heart. He was proud and haughty toward his fellows, severe toward the vanquished, inhuman toward his slaves, and slavish toward his superiors; in his transactions, he was unscrupulous and faithless, despotic in his decisions, and his greatness, even his virtue, lacked the pleasing grace, which alone wins hearts. The Athenian, quite the contrary, was gentle and tender of behavior, politely intelligent in discussion, kind to inferiors, hospitable and helpful to foreigners.
*9. 1 Kings 3:9-12; and 10: 24: Solomon’s Wish: Give Thy servant an understanding heart to judge…
______________________________________________________
Lecture #10: CRIME, PUNISHMENT& LEGAL FORMALISM
[March, 25, 2010]
_____________________________________________________
Assignments for Class #10:
1. Herman Melville, Billy Budd, Sailor (An Inside Narrative) (1924 posthumously). Has any work of American literature generated more antithetical and mutually hostile interpretation than Herman Melville's Billy Budd, Sailor? And all the battles about the moral and political vision at the heart of the tale swirl around one question: Are we supposed to admire or condemn Captain Vere for his decision to sentence Billy Budd to death by public hanging? Somehow, astonishingly enough, nobody seems to have noticed that central to the story is the subject of capital punishment and its history. H. Bruce Franklin Reprinted from AMERICAN LITERATURE, Copyright 1997 by H. Bruce Franklin): See POSNER pp. 122,148-50, 162, 163, 165-173, 179, 181, 242. Compare Captain Vere, Creon, Lycurgus, Draco and Solon and Solomon.

___________________________________________________

Lecture #11: CRIME & PUNISHMENT
[April 1, 2010]
_____________________________________________________

Assignments for Class 11 follow:

1. Lon L. Fuller, Speluncean Explorers: In the Supreme Court of Newgarth, 4300 http://www.nullapoena.de/stud/explorers.html (Harvard Law Review, 1949). Would Judge Bridlegoose approve of the method used to decide? Consult notes from Lecture #8. Be prepared to discuss the five divergent legal theories.

2. Clarence Darrow, Address to the Prisoners in the Cook County Jail, LEDWON 283

_____________________________________________________
Lecture #12: PUNISHMENT
[April 8, 2010]

_________________________________________________________
Assignments for Class # 12

1. Albert Camus, The Stranger (1942) [A Student Guide, Landmarks of World Literature] by Patrick McCarthy, Paperback 2004. (Especially Part Two, the trial, the arbitrariness of justice). POSNER pp. 40-48. Is the novella a polemic against capital punishment? Is it imaginative literature? What does this story say about capital punishment? What does Billy Budd (the man) have in common with Mersault? What does this work have in common with Dickens’ Bleak House? Jarndyce v. Jarndyce drones on. This scarecrow of a suit has, in course of time, be- come so complicated, that no man alive knows what it means. The parties to it under- stand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Charles Dickens, Bleak House 7-8 (George Ford & Sylvère Monod eds., W.W. Norton & Co. 1985) (1853).
_______________________________________________

Lecture #13: Crime & Punishment
[April 15, 2010]

________________________________________________
Assignments for Class # 13:
1. Jack L. Sammons, On Teaching the Legality of Televising Capital Punishment, LEDWON 293
2. Robert Browning, Porphyria’s Lover, LEDWON 294
3. Gilbert & Sullivan, The Mikado (1885). Scan or research the opera text to determine why Ko-Ko, the Lord High Executioner was appointed to his position; what he or the Pooh-Bah thinks of his position; the Pooh Bah’s explanation as to why the executioner enjoys such high status in the town of Titipu.
4. Homer, The Odyssey, Book XXII http://classics.mit.edu/Homer/odyssey.22.xxii.html . Read only the last eight paragraphs of Book XXII that describe how and why Telemachus executed Penelope’s twelve handmaidens. Could these executions take place today in the United States?
5. Greek Mythology, Theseus. Using classical dictionaries, reference books and your own research ingenuity, determine how Theseus cleared the road from Troize, over Corinth and Isthmus to Eleusis and Athens from bandits and other criminals such as Sinis, Procrustes (Damastes), Periphetes and Sciron. http://www.in2greece.com/english/historymyth/mythology/names/theseus.htm . Would Dante approve of Theseus methods of punishing crime? Also see Minos, the Odyssey Book XI 568. Where does Judge Minos do his judging? What kind of lawmaker was he?

[CLASSES END]

____________________________________________________
Lecture #14: CULTURE, FEMINISM
[April 22, 2010]
_____________________________________________________
Assignments for Class # 14

1. The Apocrypha Susanna and the Elders. Is there any trial technique utilized in the story that modern American justice continues to use? What type of offense justifies the death penalty in the story? If the Elders had intended to wreck Susanna’s marriage and her social standing, would they have received the death penalty? Daniel 13 in the New American Bible or here: http://bible.oremus.org/?version=nrsvae&vnum=yes&passage=Susanna
2. Carolyn Heilburn and Judith Resnik, Convergences: Law, Literature and Feminism. LEDWON pp. 91-126. Be prepared to discuss Jude the Obscure, A Doll’s House, Hoyt v. Florida, Michael M. v. Superior Court.

3. W. H. Auden, Law Like Love [LEDWON 221].

4. Susan Glaspell, A Jury of Her Peers (1917). What do you think of Mrs. Hale and Mrs. Peters story about the canary and their repair of the quilt? What is the difference in the jury make-up in the story and the jury that heard the actual case the story is based on? Why do Mrs. Hale and Mrs. Peters help Minnie? POSNER pp.122-126. (Are the women in the story like Portia?).

____________________________________________________

Lecture #15: PUNISHMENT
[April 29, 2010]
____________________________________________________
Assignments for Class # 15:

1. Michel Foucault, Panopticism, Discipline and Punishment, LEDWON 323.

2. Franz Kafka, The Trial (1925) (Willa & Edwin Muir trans. Revised E.M. Butler, Schocken n Books, New, Introduction by George Steiner). POSNER 127-140, 183-205, and especially 176, 184-185, 188, 192, 217, 238, 240-241 and LEDWON pp. 255-256. http://en.wikipedia.org/wiki/The_Trial. Do you discern any relation to Dickens’ Bleak House?

Donald Vish, Middleton Reutlinger, of counsel; executive director and board member, The Joan & Lee Thomas Foundation; director of advocacy, The Kentucky Coalition to Abolish the Death Penalty; board member, Louisville Bar Association (Committee on Judicial Integrity and Independence); elected life member, The American Law Institute. Member of the Kentucky and Florida bars.

A New Saint

2009-11-22T20:13:00.004-05:00

Cathedral of the Assumption, Louisville

Most Rev. Joseph E. Kurtz D.D. Archbishop of Louisville celebrates with the Little Sisters of the Poor on the occassion of the canonization of their foundress Jeanne Jugan as a saint, November 22, 2009.

FLAWED

2009-11-18T06:10:00.002-05:00

A Bad Design

Missing Pieces

The legal organization responsible for designing the model penal code has withdrawn its support for a key provision of the code that inadvertently served as the cornerstone for modern death penalty statutes.

The American Law Institute intended to remain neutral on capital punishment when it crafted the model penal code in 1962. The code contained, however, a template for considering conflicting constitutional values in death penalty cases that required due process of law based on objective criteria and individual consideration of the special facts and circumstances of each capital case.

The guided discretion construct was ignored by the states until 1972 when the United States Supreme Court invalidated all state death penalty laws for failing to provide due process of law in a nondiscriminatory manner that weighed the competing interests of even-handed administration of law with individual consideration of each capital case.

States attempted to fix the problem by adopting the guided discretion template of the MPC. In 1976 the Supreme Court approved resumption of capital punishment on the strength of the MPC endorsement.

As a result, the ALI gained first-hand experience with the only law beyond its expertise: the law of unintended consequences.

In October 2009, the ALI withdrew its support for the guided discretion template and a legal report evaluating its application over the years said it had not worked.

It’s now time to look at all other legal and administrative aspects of death penalty administration to determine whether the system is merely broken or intrinsically flawed beyond repair.

253 words
dv
November 17, 2009

Collision Course

2009-11-14T17:54:00.004-05:00

Collision Course

The death penalty has put the constitution on a collision course with itself.

The path to collision was cut and cleared in 1976 when the Supreme Court allowed states to reinstate the death penalty based on statutes that used a ‘guided discretion’ template proposed by the Model Penal Code (MPC). The ‘guided discretion’ approach was designed to (1) eliminate the arbitrary and discriminatory administration of the death penalty that caused the court to invalidate all state death penalty statues in 1972 and (2) balance the competing constitutional demands of even-handed administration of the law and individual consideration of each case.

Rhetoricians have a name for rubrics like ‘guided discretion’: enantiosis, the yoking together of opposites to teach a poetic truth by contrast. An example is make haste slowly (which has also risen to a constitutional standard in death penalty cases).

The precise place where justice fits between ‘guided’ and ‘discretion’ is different in each capital case and always difficult to find. Unlike other criminal law cases where the acceptable margin of accuracy or error is reasonably wide, the legal target in death penalty cases is especially narrow. The structural and theoretical obstacles to finding then reaching the perfect balance between uniform administration of the law and individualized consideration of each case is the reason why so many death penalty cases take so long to resolve.

As the Supreme Court has continued to track and groom the path to justice in death penalty cases by using evolving standards of due process that mark the progress of a civilized society’s search for justice, competing constitutional values get in the way of one another and, like Virgil’s army, crowd the field so totally that none has room to do its work.

The sponsor of the MPC, The American Law Institute (ALI), has now withdrawn the guided discretion template and its legal consultants Professors Carol S. Steiker, Harvard Law School and Jordan M. Steiker, University of Texas Law School, have declared the ‘guided discretion experiment’ unsuccessful in eliminating the arbitrariness and discrimination that figured so prominently in the decision to invalidate state death penalty laws in 1972. But the failure does not inhere in the model — the template is merely a mirror for what is required by the constitution in death penalty cases: objective guidance and wise discretion. But the more there is of one, the less there is of the other.

As courts grapple with the balance between the two, justice in death penalty cases is becoming to the constitution what absolute zero is to the laws of thermodynamics: a place one can progress toward but never reach.

Before the political process abolishes the death penalty in Kentucky, it will have been abolished by Kentucky juries that decline to impose it and appellate courts that can’t uphold it because the applicable legal standards collide with each other.

Donald Vish is the director of advocacy and education for the Kentucky Coalition to Abolish the Death Penalty and an elected life member of the American Law Institute.

Desire

2009-09-29T02:18:00.003-04:00

Desire follows no path in the sky. It obeys neither planetary motion nor sidereal time. It flashes like an aurora on a schedule known only to the heart.

Flattery

2009-09-13T18:16:00.001-04:00

Flattery rests on an iron clad rule.

One of the parties must be a fool.

Detail, Original Floor Tile, The Lincoln Institute

2009-09-07T12:40:00.010-04:00

Original Floor Tile, The Lincoln Institute

Berea College educated black and white students together until 1904 when Kentucky State Representative Carl Day convinced his colleagues to outlaw integrated education.

The Trustees of Berea resolved to continue educating black students and by 1910 completed construction of a school building in Simpsonville, Kentucky with the help of a challenge grant from Andrew Carnegie. The stone, brick and asbestos Tudor Revival building designed by Foster & Tandy opened its doors to eight-five students on October 1, 1912.

Whitney Moore Young (1921-1971), civil rights spokesman and advisor to three Presidents was the head of the school for over 40 years. The school experienced a steady decline in enrollment after 1954 when segregated education was outlawed and closed in 1970.

The U.S. Department of Labor currently leases 54 acres of the campus from the Lincoln Foundation for the operation of the Whitney M. Young, Jr. Job Corps Center.

Mr. Larry McDonald, president of the Lincoln Foundation, invited photographers from St. George’s Community Center to document original architectural details of the building, which has undergone extensive modifications over the years. Student photographers Aaron Payne, 13, and Cherree Montgomery, 16 went to the campus in July with Ted Gatlin, Jr., St. George’s Community Center Freedom School Site Coordinator and graduate student at Kentucky State University and Donald Vish, originator of the photography and mentorship project at St. George's.

The image selected for use as a note card for the Lincoln Institute is a detail from the original floor of the entrance hall and is unchanged since the doors of the school first opened in 1912.

September 7, 2009
DV

Lincoln by Louisville Sculptor Ed Hamilton

2009-09-06T16:19:00.003-04:00

Lincoln

Louisville sculptor, Ed Hamilton, crafted this monumental rendering of Abe Lincoln for the Louisville Waterfront Park memorial to the 16th president. The monument was dedicated earlier this year. Mr. Hamilton's work is nationally recognized.

Civility

2009-08-26T08:25:00.009-04:00

The Iron Law of Civility Governs Bridge Traffic @ Harrods Creek
A History of Civility: From Plato to the KBA
Code of Professional Courtesy [abridged by the author August, 2009]

36 Bench & Bar September 2008
By Donald H. Vish

The tie that holds me by the law of courtesy seems to me much tighter and stronger than the
law of legal compulsion — Michel de Montaigne.

Be Brief

An invitation to write or speak about civility provides the recipient with an opportunity to demonstrate its first law: be brief.

There is a more elaborate formulation of the rule: pensa molto, parla poco, e scrivi meno which I hasten to translate into English: think much, speak little, and write less. Otherwise, the useful Italian dictum violates George Washington’s 72nd Rule of Civility:

Speak not in an unknown tongue in company, but in your own language....

What is civility

So what does civil conduct have to do with speaking briefly, writing concisely and speaking in a language the audience understands? The common denominator is that each is based on thoughtful concern for the comfort and convenience of others. That is the cornerstone of civility. Civility transcends the realm of the merely useful and belongs to the higher realm of ethics and morality. Civility is more than a way of acting — it is a way of living. George Washington’s lifelong interest in civility began at the age of 14 when he wrote in his journal 110 Rules of Civility and Decent Behaviour in Company and Conversation. His First Rule of Civility could serve as the ONLY rule of civility, a complete and brief treatise on the subject:

Every action done in company ought to be done with some sign of respect to those that are present.

Civility is more than courteous, well-mannered behavior. Being civil means being constantly aware of others and weaving restraint, respect, and consideration into the very fabric of this awareness, according to P. M. Forni, the co-founder of the Johns Hopkins Civility Project and a noted author and speaker on the subject of civility. Civility is a form of goodness, he concludes in his best-selling book Choosing Civility: the Twenty Five Rules of Considerate Conduct. Those who practice civility, Dr. Forni believes, find both serenity and contentment. Benjamin Franklin was similarly inclined. Franklin believed practicing the art of civil virtue leads first to personal happiness and eventually to greatness.

Emulating Washington and Franklin, the Kentucky Bar Association codified eleven aspirational rules of professional courtesy in 1993 and petitioned the Kentucky Supreme Court to adopt and promulgate the Code of Professional Courtesy [CPC] by formal order. Effective September 1, 1993, Kentucky lawyers had two sets of civil rules: The Rules of Civil Procedure, governing civil actions, and the Rules of Professional Courtesy, governing civil behavior....The CPC is intended as a series of guidelines for lawyers in their dealings with clients, opposing parties, their lawyers, the courts and the general public. While not constituting a disciplinary code or a legal standard of care, Kentucky attorneys are expected to comply with the letter and spirit of the Code adopted by the Supreme Court. The eleven rules in their totality encompass Washington’s First Rule, be considerate of those present, and Plato’s dictum, be kind.

... incivility is contagious. One uncivil act begets another which treads on the heels of another and spreads like ripples on water. So are there antidotes to the Plague of Incivility? Well, if there are not enough Rules already, I would propose four:

Think much, speak little, and write less
Save your anger for the right occasion but always withhold it in two cases: 1) where you can’t change the outcome and 2) where you can
Look and overlook , bear and forbear
Always make haste slowly.

Donald Vish is an attorney with Middleton Reutlinger in Louisville.

The author would like to acknowledge and thank Kentucky Supreme Court Justice James E. Keller (retired) for his encouragement of and enthusiasm for the advancement of civility and the expert editorial and stylistic advice provided by lawyer James Dady. Errors and omissions, however, are those of the author alone.

Take responsibility

2009-08-21T22:49:00.001-04:00

Churchill Weavers

2009-08-14T16:20:00.005-04:00

Churchill Weavers, a company with a long history in Berea, Kentucky, closed several years ago, its name and product line going to a company in Indiana. I had heard little about the group for some time, and feared that the revival of the group's weaving collection would not occur.

However, I just received the following from a representative of the group:

Hello, After a brief hiatus, Churchill Weavers will be relaunching a limited production schedule of their famous handmade throws and scarves. After September 1, production will begin again on reissues of some of their older lines as well as some of their new designs for Spring 2010.

There will be a return to the original Churchill Weavers emphasis on upscale but accessible, luxuriously tactile products. Churchill will continue its tradition of weaving on our trademark antique looms, personally designed by David Churchill in the early years of the last Century.

We invite any interested parties to please contact us via email with inquiries and/or orders at churchillweavers@hughes.net.

Muliebrity, more honest than modest

2009-07-17T19:02:00.002-04:00

The perversions of inequality are absent; what appears instead is the glamour of a protracted cultural moment in which women were free from any expectation of sexual pursuit. The power of Ms. Bassman's photographs is the power of a woman who is never moved to make a call.

The work of Lillian Bassman, strictly speaking, falls beyond the scope of Danzig U.S.A.. As this article and this photo gallery attest, however, there is a renaissance of interest in Bassman's astonishingly honest depictions of feminine beauty.

Champions4Her

2009-07-01T17:01:00.003-04:00

A moment from the 2009 Kentucky Bar Association convention

2009-06-13T21:37:00.004-04:00

As the 2009 Kentucky Bar Association convention fades into the past and the Commonwealth's lawyers bid farewell to Covington, I'd like to record one final memory. Danzig U.S.A. contributors Reggie and Cheryl Van Stockum joined the University of Louisville's reception for law alumni and friends. Below, Reggie shares a moment with Matt Williams and Bob Micou.

Jefferson Memorial Forest

2009-06-01T22:45:00.004-04:00

Herewith a sighting of a cricket frog, Acris crepitans, along the Slitstone Trail at the Jefferson Memorial Forest.

Jefferson Memorial Forest, all 6,191 acres of it, lies entirely within the city limits of Louisville. It is 15 minutes from downtown. A quick sprint along any of the Forest's hiking trails will convince you that this is some of the best urban recreation in the country.

I de dager var kjempene på jorden

2009-05-05T00:49:00.004-04:00

Again from Recess Appointment, chapter 3 of Iridescence:

I de dager var kjempene på jorden. The land of one's childhood, no matter its physical location, marks the same place on every person's emotional map. In those days there were giants in the earth, and the sons of God came unto the daughters of men. And in turn those daughters bore children who became mighty men of old, men of renown. . . . There the warriors stood taller, whether they swung bats or wore plastic armor beneath their jerseys. The preachers spoke with greater authority, sometimes of heaven but mostly of hell. And above all the daughters of men have no greater beauty than those you first meet in that never-forgotten land. So struck will you be by your discovery, your terrible and thrilling discovery that you want one and all of them at once and forever, that you will spend the balance of your days searching for one to compare with the girls you recall from the founding of the kingdom of giants.

Editor's notes:

The phrase I de dager var kjempene på jorden comes from the 1930 Norwegian Bokmål translation of Genesis 6:4.

The image shown is that of Milam Park, Clarkston, Georgia.

Calvin Borel, Jockey & Sage

2009-05-03T11:33:00.011-04:00

Jockey Calvin Borel said he owed his success to his father. When asked what his father did, Calvin delivered a terse and wise catechism on child rearing: "He believed in me."

Calvin won the 2007 Kentucky Derby, the 2009 Kentucky Oaks and the 2009 Kentucky Derby riding a 50 to 1 long shot that arrived at Churchill Downs after being drive across country from New Mexico in a trailer pulled by his trainer's pick-up truck--the horse-racing equivalent of hitch-hiking to the Derby.

Manifold destiny

2009-04-30T18:54:00.002-04:00

From Recess Appointment, chapter 3 of Iridescence:

No reach back into ancient natural history can resist the temptation of the near emotional future. You will believe in that orgiastic future no matter how badly the recent personal past distorts your view of current global reality. It eluded you then, but that’s no matter — tomorrow you will run faster, stretch out your arms further. And if you are lucky enough to have noticed the trompe-l'œil of your own creation, you will realize this truth: No amount of traversing the ancient and the modern, the personal and the global, will separate fear from desire. At any scale the topology of anxiety and longing dictates an invariable outcome. Such is the manifold destiny of the searching soul. Equal and opposite emotions, one and inseparable, comprise a single surface in the Klein bottle of the human heart in conflict with itself.

Memory and redshift

2009-04-28T19:29:00.000-04:00

No less than their sensory counterparts, the waves of personal remembrance obey Doppler's law. The mind in motion never quite perceives what passes before the mind at rest. Emotional recall obeys the forces that bend the peal of a passing bell and warp the color of distant stars. Race toward the past if you will; yesterday recedes faster than your memory can recall. As you reel backward, redshift stretches memory beyond your field of perception, till truth dissipates in spasms of invisible heat. Race instead toward the future, and impatient anticipation crashes against the the invariant pace at which tomorrow arrives. Against that blackness you will see no more than purple tendrils not quite taking full form, the fleeting projections of things yet to come.

Spring Arrives at My Front Door

2009-04-20T19:58:00.002-04:00

Jared Diamond, author of "Guns, Germs and Steel" and "Collapse"

2009-04-19T22:39:00.008-04:00

The Assault of Guam (1944) (Part IV)

2009-04-19T19:30:00.003-04:00

A day or two after we landed on Guam, at about 11:30 p.m. on July 25, 1944, those of us at the Command Post that had been established at the base of the steep cliff near the beaches, heard a cacophony of machine-gun fire and explosive bursts coming from the top of the cliff.

Mixed and confused reports, some frantic, reached our radios. In the midst of this turmoil, a forward observer stumbled down the cliff to report that the enemy had attacked, and “all hell” had broken loose on our front lines.

Upon receiving this alarming information, we requested that fragmentation hand grenades be forwarded from our ammunition dump several hundred yards to the rear. In anticipation of such an attack, we should have already had them on hand.

To our consternation, after a painfully long delay, grenades arrived, but they were smoke grenades, useless in our situation, rather than those that broke into steel fragments after being thrown.

As the noise of battle came closer, I received the following order from the battalion commander, Lt. Col. Marlowe Williams: “Van get up there and see what’s going on.”

So I called for my radio operator, who doubled as a bugler, and we started in darkness to ascend the bluff, scarcely knowing where we were but knowing that the way was “up.”

Enemy mortar shells, aimed at rear installations, passed overhead, but more dangerous to us was our own artillery, which was responding to urgent calls from the front lines.

A number of rounds, failing to clear the crest, burst not far from us. Turning around, I saw no sign of my radioman, so alone, I continued slowly on my mission.

The front lines

At the break of dawn, I reached C Company in the front lines. At this location our position was intact, but the enemy had bypassed our positions and elsewhere had penetrated our lines, using ravines as protection.

It was apparent that their objective was to reach the beach in the rear in order to destroy our artillery and the supply dumps. I arrived in time to see the enraged company gunnery sergeant pick up a discarded Samurai sword and kill the remaining enemy soldier.

I then borrowed a company radio and contacted headquarters in the rear to report that the line at that point had held.

As the sun rose, and the fog of battle lifted, the magnitude of this attack became apparent.

It had not been a so-called “Banzai” attack, led by sword-wielding officers, rushing forward to certain death. It was an organized counter-attack, carefully planned and well-executed against hopeless odds.

The enemy’s main blow was against our center, Company B, commanded by my good friend Capt. Don Beck. From his command position that night, he watched as the Japanese, taking advantage of their knowledge of the terrain, came down the ravines, overpowering his command.

Enemy shells, as well as our supporting mortar and artillery shells, were falling near his position. [While wounded at least once, Capt. Beck commanded Company B in all three invasions: Bougainville, Guam and (later) Iwo Jima. I know of no other Marine to remain in command of an infantry company through three such ordeals.]

Editor's note: First Published in the Sentinel-News, Shelbyville, Kentucky, April 8, 2009
© 2009 Ron Van Stockum

Xortal-Times Turn (Chapter 1, part 1)

2009-04-17T22:50:00.005-04:00

It was noon. The sky was a bony cold gray and the air heavy. An old outdoor thermometer hung on a fence post, its metallic base rusted and bent.

A good day to be in a cave, thought Tony as he stepped out of his vintage Volkswagen Beetle and slipped into his jacket. He parked next to the fence and noted the long temperature gauge...52º F. "Warm weather for January, eh bub?" he said as his friend Vern stepped out of the car on the other side.

"Wait around awhile, it'll change," quipped Vern, tucking his head into his hunting cap, ear flaps still folded up inside.

Both friends turned toward the side of the clapboard frame house and Tony, reaching the outer basement access door, leaned down and swung the heavy, angled wooden door first up and then over to his right. Vern snapped hold of the door with the metal clip on the ordinarily free hanging chain attached to the side of the house. Strong winds were common enough to warrant this protection from premature closure.

The basement was part of an 1870's home and hence only undercut a quarter of the house now sitting above it. Since it was only 14' by 14' wide, Tony was tempted to believe that it was the basement to the original pioneer home carved out from the forest in 1795 when his eastern ancestors traveled down Clear Creek from the point where Harrods Trace crossed on its way from the Kentucky River to the fort at the Falls.

He and Vern pulled the worn cardboard box of caving gear from atop the bare earthen wall of one side. Vern pulled out the helmets as Tony supported the wet, weak bottom of the box. The acrid smell of spent carbide permeated the gear and, mixed with the dank air of the basement, created a seemingly alien atmosphere. Yet to the boys it was a pleasant smell, the smell of life and safety and hope in the power of men to advance into the hostile world below. They climbed out of the basement with a sense of muted excitement, a sober eagerness that precedes physical exertion. It would take great effort to dig into the karst window, without the certitude of finding a passable cavity below. Even if found, it was likely that such a passage would be a belly crawl, pinching out in an unpassable convergence of stone.

At 26 (Vern, born on June 17, and Tony on August 6), both boys were strong with youth. Tony was thicker in bone and muscle and wore a down-turning mustache across his face. Vern was taller, but not by much, and sported a light beard. His features were otherwise aquiline, if a little pudgy. Tony's features were angular and his eyes were set far back below bony protruding eyebrows. Vern had blue eyes, Tony hazel. Vern was already losing his hair in a broad swath atop his head. In this, he was like his father.

"Here you go, bub," said Tony, dropping the box on the blue table on the clapboard house porch. "Start pulling out the stuff...how about a cola?"

"Diet, man," said Vern. He was a diabetic, although diet cola seemed to be his only conscious accommodation to the disease. Cola and the shots, that is. Vern loved to grin at Tony as he dropped his trouser-leg, brought out a needle and syringe, pierced the rubber seal on a vial of insulin, and literally smacked the needle into his thigh. The thought raised goose bumps on Tony's arms, the sight just paralyzed him. "Here man, give it a shot!" taunted Vern, thrusting out the spent cartridge toward Tony. It was a sliver thin needle and that made it even more frightening.

Out from the box came the caving gear. The hats were ordered from a caving store and looked something like old Prussian helmets without a spike. They were held firmly on the head by a four point strap. Ground mud in numerous cuts and scrapes in the hard cap plastic testified as to the need for helmets and tight straps. It also testified to the two years of experience both cavers now claimed. Mounting brackets on the front of the helmets would accept the carbide lamps.

Xortal, a novel

2009-04-13T18:07:00.004-04:00

"Xortal" is a work of Science Fiction. It is my third novel in that genre. I have a background and interest in natural history and explore such things in my writings.

"Knowledge" is the first chapter in "Xortal." I look forward to posting portions of additional chapters in the future.....thanks, Reginald Bareham

Xortal-Knowledge (Introduction)

2009-04-12T12:32:00.006-04:00

I write this story out of fear, punishing anxiety which keeps me bottled up in this dark, dank place lest I even more grossly affect the progress of that without. My friend lies dead, yet I know that he lives. Xortal, I fear, is lost but I am condemned to await its return if I am ever to escape my predicament, much less understand it. I wear the chest pack frequently still, going back on regular forays seeking Xortal. But I do not dare interact for fear of more greatly alienating my being, or worse, threatening my current existence.

So here, in this tomb of my time, I write the tale which will record my true passage through life. It will serve, should any attempt to follow, as a warning and it may yet serve as a guide for those with the courage, or foolishness, to seek this passage again. Although knowledge is a hollow substitute for human companionship, it has proven to be my only friend in exile. A friend that I embrace now more than ever in the awful loneliness that I suffer. It is that companion which, as its reward, will take on a new life in these pages.

So I collect data, increase my knowledge and catalogue it in my growing mind. Regardless, the bronze sled is gone and that can only mean that the isle of Avalon has again risen. The Tor is again a beacon. What terrors will come only Xortal knows, and only Xortal can command.

Listen to the rocks!

The rainbow as refracted truth

2009-04-08T01:22:00.007-04:00

By arc or by whole, the rainbow reveals refracted truth. Nearby rain and distant mist have equal power to vaporize visible light into bands of color. A single sheet of water, slicing through sunlight, projects the full spectrum against the sky's inverted bowl. If you are lucky enough to be standing far enough from the point where solar brilliance meets suspended water, you will see sunlight scattered into a full ring of color.

Like metaphorical truth, visible light rarely reveals its constituent parts so regularly and so predictably. Depart ever so modestly from the axis on which truth or light turns, and your eyes will no longer honor one focus. And if you should look instead at an object propelled through the sky, gravity's rainbow will no longer appear to you in closed form. It will rise — and fall — according to a trajectory that will never connect the beginning of truth with its end.

And this is to say nothing of the most treacherous trick of the light, the double deception that awaits time's pilgrim. Race toward the past if you will; yesterday recedes faster than your memory can recall. As you reel backward, redshift stretches memory beyond your field of perception, till truth dissolves in waves filled with heat rather than light. Race instead toward the future, and impatient anticipation crashes against the invariant pace at which tomorrow arrives. Against that blackness you will see no more than purple tendrils not quite taking full form, the fleeting projections of things yet to materialize.

Pivotal events therefore mark the sections of our lives, slicing at particular points of time through the whole of the truth and leaving us no more enlightened than the objects we trace across our field of vision at speeds well below that of light. Catch them, and you will be rewarded momentarily by the mirage of control. Miss them altogether, and you will rue forever the path that both of you, protagonist and projectile, must follow.

Parrish Court

2009-03-27T01:23:00.003-04:00

With apologies to Walt Whitman:

When jonquils first in the courtyard bloomed,
And the great star slowly drooped in the western sky late by day,
I yearned — and yet shall yearn with ever-returning spring.

Above: Parrish Court, Belknap Campus, University of Louisville. Cross-posted from The Cardinal Lawyer.

The Harrods Creek Bridge RIP 2008

2009-03-22T19:00:00.002-04:00

The Harrods Creek Bridge
Regulated traffic according to the iron law of civility.

Bliss

2009-03-22T08:59:00.003-04:00

Bliss
Search inside yourself for bliss
And if you find none there
Quit your search and rest assured
You won't find bliss anywhere.
dv

Me

2009-03-07T14:56:00.004-05:00

A Look at Me and Where I'm Headed
I keep a picture of myself on my bookshelf where I can see it from my desk while working and from my chair when thinking. It is the last image I see before leaving for the day and the first image I see in the morning upon arriving at my desk. The self-portrait is shown above.

The picture shows my shadow cast across my gravesite at Cave Hill Cemetery pointing toward the symbol of earthly success, my Mercedes-Benz (formerly). The luxury car cannot deliver me from the place that awaits my sure and certain arrival.

I see myself in the picture as dust and shadow, like the flower of the field described by the psalmist: For as soon as the wind goeth over it, it is gone; and the place thereof shall know it no more. Psalm 103:14-16.

There is life in the picture, the good life symbolized by the silver car. There’s death, dust and shadow in the scene as well and even fading flowers of the field set in a vase before a tombstone before the 'wind goeth over it.' And the grave-digger’s work is visible in the lower left foreground, marked by white flags.

And there is resurrection symbolized by the patch of green grass visible near the base of the shadow, the return of life in an eternal cycle.

The picture keeps me centered.

Masterworks

2009-02-17T20:15:00.002-05:00

Masterworks

I look at what the masters did
I really learn a lot.
For when I see the work they did
I see what I did not.
--dv

Our club, "Your Water"

2009-02-11T09:34:00.003-05:00

The Isaac Shelby chapter of the University of Louisville Alumni Association gathered on February 8, 2009, at Allen Dale, home of Reggie and Cheryl Van Stockum, to watch the Cardinals' basketball game with St. John's. Halftime entertainment included a screening of Reggie's performance of Your Water. The video, drawn from from Reggie's video library on Vimeo.com, exhibits one song from the Reginald Bareham Singer Songwriter Showcase at the Rudyard Kipling in Louisville on February 7. Your Water featured Reggie Van Stockum (performing under the name Reginald Bareham) on rhythm guitar and vocals, Kelly Hickerson on guitar, David Clement on trombone, and Brian Ginn on snare drum.

» Cross-posted at The Cardinal Lawyer «

Wendell Berry Makes Public Statement on the Death Penalty

2009-01-29T14:11:00.006-05:00

Noted Kentucky author, philosopher and man-of-letters, Wendell Berry has authorized me to use the following statement of his position on the death penalty:

[Not to be altered in any way without the approval of Wendell Berry]

“As I am made deeply uncomfortable by the taking of a human life before birth, I am also made deeply uncomfortable by the taking of a human life after birth. Obviously, it can be well argued that the world would be better off if certain people had never been born or if they had been killed in early youth by a fall from a tree. And I certainly can imagine circumstances in which I might kill another person. But I don’t believe that mere humans have the mental or moral capacity to decide rightfully, let alone infallibly, that another human should be killed. As I don’t condone the illegal killing of a human by a human, I cannot condone the legal killing of a human by a human. One killing is not rectified or atoned for by the addition of a second. An illegal killing is in no way made better by a legal killing. A society is not made saner or more morally secure by the deputation in it of legalized killers. Whereas many illegal killings are done in hot blood, legal killings are always done in cold blood and with a procedural deliberation that is horrifying. Hot-blooded killing is of course horrifying also, but to me it is more understandable. Probably we have no choice against illegal killing, which continues to happen against the wishes of nearly everybody. But it is possible, morally and rationally, to choose to withhold one’s approval from legal killing, and I so choose.”
[Not to be altered in any way without the approval of Wendell Berry].
--Wendell Berry
Port Royal, KY
January 23, 2009

UofL's Speed School to Take Lead on Renewable Energy Research

2009-01-27T11:57:00.003-05:00

On January 26, 2008, Kentucky Governor Steve Beshear announced that Kentucky’s Center for Renewable Energy Research and Environmental Stewardship will be operated by the University of Louisville. Uof L engineering and business alumnus Henry Conn and his wife, Rebecca, have pledged more than $20 million to the Speed school to support this program.

The center’s mission promotes partnerships among the state’s colleges and universities, private industry and nonprofit organizations to actively pursue federal research and development resources that are dedicated to renewable energy.

Quilting Portraits

2009-01-05T09:18:00.004-05:00

Fabric is a delightful way to represent the human face. My work is a bit abstract, but the images are (generally) recognizable.

Here is a version I have done of President-elect Obama. (I must remember that teeth are difficult to portray ...)

Earthrise on Christmas Eve

2008-12-24T10:55:00.006-05:00

Earthrise
December 24, 1968

Peace on earth,
good will to all

Mellwood Artists At Library

2008-12-19T08:57:00.004-05:00

Artists from the Mellwood Arts & Entertainment Center will have work on display from December 18 to February 8 in the Louisville Free Public Library's main branch. The works on display are varied and beautiful, ranging from ceramics, to print, to wood, to fiber. (OK. This is a bit of self-promotion, I have a fiber piece there.)

If you are downtown, stop by the library's Bernheim Gallery to see what some of your fellow Louisvillians are doing.

Pug power for the holidays at the University of Louisville

2008-12-17T21:41:00.003-05:00

Danzig U.S.A. has made much of the pug's status as the dog breed of the Cardinal Nation. The official 2008 holiday card of the University of Louisville drives home the point.

Woof!

Editor's note: Here is a bonus animal image, from the UofL Law School's holiday card:

Ashley Cecil calls on Champions 4 Her

2008-12-16T00:16:00.003-05:00

Ashley Cecil has issued a call for artists to take part in next summer's Champions 4 Her fundraiser:

I’m looking for a few more visual artists who are interested in participating as a street painting facilitator. It entails meeting with the group you will be assigned to at their facilities for a series of sessions to collaboratively create a final design of what will go onto the pavement at Water Front Park the day of the event. Each group will consist of some combination of clients of the organization, volunteers, and/or staff (few of whom will have any artistic experience). This is not an opportunity for artists to showcase their own work. The objective is to guide your group through the art-making process and give them creative license.

Penny Sisto Exhibit at Uzoma

2008-12-02T14:22:00.006-05:00

Fiber artist Penny Sisto's exhibit "Rude, Crude and Lewd" will be on display at uzoMa gallery from December 5 through January 23, 2009. The opening reception is Friday, December 5, from 6-8 pm, and she will hold an artist workshop January 11, from 2-4 pm.

For more information, contact Angela Ramsey Robinson at explore.uzoma@gmail.com.

Sisto's work is passionate, intricate and beautiful. I am certain this exhibit will be no exception. The image I have included here is from her Immigrant Series. (Click on image to go to her gallery page.)

(cross-posted on B's Dreams)

Ex libro lapidum historia mundi

2008-11-23T00:54:00.004-05:00

Mazon Creek lagerstätte
All geology represents the present-tense freeze-frame of the earth's history, condensed conveniently in the chemistry of rocks and soils. Though the course of any single organism's life is infinitesimally minute by comparison with the history of the earth, only one species in the earth's parade of life — ours — has managed to crack the code. It is as though some geological variant of Heisenberg's uncertainty principle prevents observation over a more meaningful time span. Any organism attaining the power to unlock the earth's secrets also acquires, by that very stroke, the power to destroy the earth itself.

The true wonders in this world do not hide. Rather, they wait in plain sight, obscured not so much by ice or vegetation as by the shades we draw across our eyes. Most of geologic history belongs in this category of true wonders. Terrestrial history accretes at rates too slow for any mortal observer to notice. But it leaves records in the form of rocks and soils and layers.

On extremely rare occasions, the chroniclers of geologic time pause to pick one fragment of one organism — a leaf, a wing, a shell, a bone — and enshrine it in some durable medium. The imprints of Carboniferous ferns, horsetails, and club mosses, insects in amber, the barely perceptible bas-relief of a mollusk, cliffs colored by coccolithophorid shells, even the hydrocarbon relics of ancient plant life that humans so casually burn and polymerize — all these bear mute testimony to worlds long past.

As with sediment, so with sentiment: Our efforts at self-understanding have no chance of overcoming the mindless buzz of being and doing. We cannot understand feelings of the moment, with deep emotional footprints and even with lasting practical consequences, until we stop acting upon those feelings and seize the opportunity to look backward, in the serenity of solitude.

Editor's note: Cross-posted from Jurisdynamics.

Veterans Day

2008-11-18T04:22:00.011-05:00

Glory Land

With new dress blues and shiny shoes
And the strut of a brave brass band
Daddy took-up his country’s flag
And marched to glory land.

Without his shoes and new dress blues
But behind the band and flag
Daddy came home from glory land
Wearing a burlap bag. DV
2006

The body of an American

2008-11-17T13:22:00.007-05:00

Editor's note: This item was originally published in The Cardinal Lawyer on Veterans' Day 2007. It is a timeless message, though, and for that reason I am posting it here despite being a week late for Veterans' Day 2008.

There is perhaps no finer tribute to American veterans than John Dos Passos's "The Body of an American," the concluding chapter of 1919, part two of the U.S.A. trilogy (1930-36):

Whereasthe Congressoftheunitedstates byaconcurrentresolutionadoptedon the4thdayofmarch last-authorizedthe Secretaryofwar to cause to be brought to theunitedstatesthe body of an American whowasamemberoftheAmericanexpeditionaryforceineuropewholosthis lifeduringtheworldwarandwhoseidentityhasnot beenestablished for burial inthememorialamphitheatreofthe nationalcemeteryatarlingtonvirginia

In the tarpaper morgue at Chalons-sur-Marne in the reek of chloride of lime and the dead, they picked out the pine box that held all that was left of

enie menie minie moe plenty of other pine boxes stacked up there containing what they’d scraped up of Richard Roe

and other person or persons unknown. Only one can go. How did they pick John Doe? . . .

how can you tell a guy’s a hundredpercent when all you’ve got’s a gunnysack full of bones, bronze buttons stamped with the screaming eagle and a pair of roll puttees?

. . . and the gagging chloride and the puky dirtstench of the yearold dead . . .

The day withal was too meaningful and tragic for applause. Silence, tears, songs and prayer, muffled drums and soft music were the instrumentalities today of national approbation.

John Doe was born (thudding din of blood of love into the shuddering soar of a man and a woman alone indeed together lurching into and ninemonths sick drowse waking into scared agony and the pain and blood and mess of birth). John Doe was born

and raised in Brooklyn, in Memphis, near the lakefront in Cleveland, Ohio, in the stench of the stockyards in Chi, on Beacon Hill, in an old brick house in Alexandria Virginia, on Telegraph Hill, in a halftimbered Tudor cottage in Portland the city of roses,

in the Lying-In Hospital old Morgan endowed on Stuyvesant Square,

across the railroad tracks, out near the country club, in a shack cabin tenement apartmenthouse exclusive residential suburb;

scion of one of the best families in the social register, won first prize in the baby parade at Coronado Beach, was marbles champion of the Little Rock grammarschools, crack basketballplayer at the Booneville High, quarterback at the State Reformatory, having saved the sheriff’s kid from drowning in the Little Missouri River was invited to Washington to be photographed shaking hands with the President on the White House steps; —

Read the rest of this post . . . .* * * * *

though this was a time of mourning, such an assemblage necessarily has about it a touch of color. In the boxes are seen the court uniforms of foreign diplomats, the gold braid of our own and foreign fleets and armies, the black of the conventional morning dress of American statesmen, the varicolored furs and outdoor wrapping garments of mothers and sisters come to mourn, the drab and blue of soldiers and sailors, the glitter of musical instruments and the white and black of a vested choir

— busboy harveststiff hogcaller boyscout champeen cornshucker of Western Kansas bellhop at the United States Hotel at Saratoga Springs office boy callboy fruiter telephone lineman longshoreman lumberjack plumber’s helper,

worked for an exterminating company in Union City, filled pipes in an opium joint in Trenton, N.J.

Y.M.C.A. secretary, express agent, truckdriver, fordmechanic, sold books in Denver Colorado: Madam would you be willing to help a young man work his way through college?

President Harding, with a reverence seemingly more significant because of his high temporal station, concluded his speech:

We are met today to pay the impersonal tribute;

the name of him whose body lies before us took flight with his imperishable soul . . .

as a typical soldier of this representative democracy he fought and died believing in the indisputable justice of his country’s cause . . .

by raising his right hand and asking the thousands with the sound of his voice to join in the prayer:

Our Father which art in heaven hallowed by thy name . . .

* * * * *

John Doe’s

heart pumped blood:

alive thudding silence of blood in your ears

down in the clearing in the Oregon forest where the punkins were punkincolor pouring into the blood through the eyes and the fallcolored trees and the bronze hoopers were hopping through the dry grass, where tiny striped snails hung on the underside of the blades and the flies hummed, wasps droned, bumble-bees buzzed, and the woods smelt of wine and mushrooms and apples, homey smell of fall pouring into the blood,

and I dropped the tin hat and the sweaty pack and lay flat with the dogday sun licking my throat and adamsapple and the tight skin over the breastbone.

The shell had his number on it.

* * * * *

The blood ran into the ground.

The service record dropped out of the filing cabinet when the quartermaster sergeant got blotto that time they had to pack up and leave the billets in a hurry.

The identification tag was in the bottom of the Marne.

The blood ran into the ground, the brains oozed out of the cracked skull and were licked up by the trenchrats, the belly swelled and raised a generation of blue-bottle flies.

and the incorruptible skeleton,

and the scraps of dried viscera and skin bundled in khaki

they took to Chalons-sur-Marne

and laid it out neat in a pine coffin

and took it home to God’s Country on a battleship

and buried in a sarcophagus in the Memorial Amphitheatre in the Arlington National Cemetery

and draped the Old Glory over it

and the bugler played taps

and Mr. Harding prayed to God and the diplomats and the generals and the admirals and the brasshats and the politicians and the handsomely dressed ladies out of the society column of the Washington Post stood up solemn

and thought how beautiful sad Old Glory God’s Country it was go have the bugler play taps and the three volleys made their ears ring.

Where his chest ought to have been they pinned

the Congressional Medal, the D.S.C., the Medaille Militaire, the Belgian Croix de Guerre, the Italian gold medal, the Vitutea Militara sent by Queen Marie of Rumania, the Czechoslovak war cross, the Virtuti Militari of the Poles, a wreath sent by Hamilton Fish, Jr., of New York, . . . . All the Washingtonians brought flowers.

Woodrow Wilson brought a bouquet of poppies.

Editor's note: The photos of the burial of the Unknown Soldier appear on ArlingtonCemetery.Net.

Visiting Harland

2008-10-29T21:52:00.006-04:00

Harland Sanders is buried at Cave Hill Cemetery. One can follow a yellow line from the main entrance to the colonel's grave. It's really worth the visit. Cave Hill is beautiful, filled with wonderful flowers, trees, and monuments. The Sanders memorial is a delightful walk and a bit of Kentucky history. As the trees turn, before it gets too cold, take a moment to visit the colonel.

Upshot: The Cathedral of the Assumption

2008-10-29T08:32:00.004-04:00

World Religions
Philanthropists who paid for the resotration of Louisville's historic Cathedral of the Assumption will be honored and thanked for their contributions in November. The foundation overseeing the renovation has changed its name and mission and is now focusing on interfaith relations among the world's religions. It is based at the cathderal offices.

Pug power in the Cardinal Nation

2008-10-14T20:08:00.003-04:00

Danzig U.S.A. has long acknowledged that the pug is the unofficial dog breed of the University of Louisville. And now it's official:

Bernheim Arboretum and Research Forest

2008-10-12T22:50:00.004-04:00

Photo credit: Mari Mar, Friendly Pines. This image depicts trees around Lake Nevin at the Bernheim Arboretum and Research Forest.

Half an hour south of downtown Louisville lies a refuge for all seasons, the Bernheim Arboretum and Research Forest. Bernheim's attractions include an arboretum and 35 miles of hiking trails.

Isaac Wolfe Bernheim, a German immigrant who succeeded in distilling, established the forest in 1929 by assembling 14,000 heavily farmed and logged acres in Bullitt and Nelson Counties. Frederick Law Olmsted designed Bernheim Forest's original layout. Bernheim gave his Forest for the future enjoyment of his fellow Kentuckians.

Today's forest consists of an arboretum and a natural area. The arboretum contains formal and informal plant collections. The visitor's center is Kentucky's first platinum-level LEED-certified building. In the natural area, primarily a beech-maple forest, visitors can explore over 35 miles of hiking trails, ranging from casual strolls to a strenuous, all-day excursion on the Millennium Trail. The Quiet Garden offers especially serene views of Lake Nevin, the largest of Bernheim's four lakes.

Justice Brandeis's gravesite

2008-10-06T17:14:00.000-04:00

Jeffrey Scott Holland's blog, Unusual Kentucky, offers these images of Justice Brandeis's gravesite at the University of Louisville:

A Beacon of Freedom

2008-10-05T17:09:00.005-04:00

The Town Clock in New Albany, Indiana stood as a beacon of freedom to 19th century runaway slaves looking for a narrow place on the Ohio River where it was safe to cross and safe to land. Many runaways crossed at Louisville, a large slave trading market early in the 19th century. This photo, taken as Louisville peace pilgrims went to the site on Saturday, illustrates how narrow the river is at this point.

Summa cum debitum

2008-10-02T15:06:00.004-04:00

Summa cum debitum
So while we’re focused on debt, bail-outs, rescue plans and the appropriate public policy to deal with the financial crisis created by mortgage-backed securities, let’s look at, think about and even do something with the monumental problem of student loans.

Over the last decade or two, we have transformed a significant number of young people into a legion of debtors holding degrees awarded summa cum debitum. In many cases, students have been prepared for jobs that don’t exist or a life’s work that cannot amortize their student loans. And just as mortgages were bundled and sold as investment securities, student loans have been packaged and sold as bonds, many on the infamous auction-rate securities market that collapsed last February.

The adverse social, civil and political impact of student debt is not limited to those who incur it unwisely, those who fund it improvidently or those who invest in its securitized structures unsuccessfully. Civil society depends upon a wide range of skills to invent, perfect, make, maintain and operate its wheels and gears. When the allocation of work is driven by the need to pay onerous loans, terrible societal dysfunctions result.

Many young people have started life with little and some have started with nothing but today a significant number are starting with even less.

David Jones. Jr.on Civic Greatness @ IdeaFestival 2008

2008-09-27T09:22:00.006-04:00

The Common Denominator of Great States

Vest Advertising interviewed Louisville business and civic leader David Jones, Jr. at the Louisville IdeaFestival 2008 on the thesis of guest speaker Amy Chua, a Yale law professor and avid historian; viz., that great civic hyperpowers were talent magnets built on tolerance and inclusion of minority cultures and religions:

David Jones, Jr. sees Louisville as a fertile field for the seeds of multiculutralism and talks about how his own business has benefited from the diverse talents of diverse people.

East of Eden is Eden

2008-09-26T19:27:00.004-04:00

These pastoral scenes are slightly east of Metro Louisville.

Windstorm 2008

2008-09-25T20:28:00.003-04:00

Windstorm 2008
A hurricane force windstorm (winds exceeding 75 mph) blew through Louisville in September leaving in its wake numerous fallen trees and countless uplifting examples of courtesy and kindness. Electricity was restored to all after six days.

The last of the true believers

2008-09-13T17:54:00.005-04:00

A thematic anthem from Nanci Griffith, one of Danzig U.S.A.'s favorite artists:

Oh, he said it was the sound of the winter calling
from up around the bend
Or it could be the cry of your restless heart
for the love of your long lost friends
Me, I think it's just the summertime
and the heat of these Texas winds
They keep on slapping my face with dust so thick
that the tears won't roll again

Chorus:
Last of the true believers
Have you grown weary all alone?
You could go home again, home again, home
Last of the true believers
You pack your things and go back home
You could go home again, home again, home

You can't stay away forever
'cause they say love doesn't last that long
and the ghost of the one that you loved the best
is bound to be long gone
So you fall for the one you believe in
and take pride in the heart you hold
'Cause when the wintertime pounds upon your door
it's shelter from the cold

[Repeat chorus.]

There's a shadow on our wall
where I once stood with him in mind
And there is an empty space beside him
where I do take my rest at night
Oh, I will be the last of the true believers
if truth is his heart to lend
'Cause the wintertime sure looks cold to me
coming up around the bend

[Repeat chorus.]

Oh, I could go home again, home again, home
Well, it looks like home again, home again, home
Oh, I could go home again, home again, home
Well, he brings me home again, home again, home . . . .

Where I go

2008-09-08T19:54:00.007-04:00

The Green River near Mammoth Cave, Kentucky

Natalie Merchant, Where I Go, Tigerlily (1995)

climbing under a barbed wire fence
by the railroad ties
climbing over the old stone wall
I am bound for the riverside

Well I go to the river to soothe my mind
ponder over the crazy days of my life
just sit and watch the river flow

find a place on the riverbank
where the green rushes grow
see the wind in the willow tree
in the branches hanging low

well I go to the river to soothe my mind
to ponder over the crazy days of my life
watch the river flow
ease my mind and my soul
where I go

well I will go to the river from time to time
wander over these crazy days in my mind
watch the river flow
where the willow branches grow
by the cool rolling waters
moving gracefully and slow

child it's lovely
let the river take it all away
the mad pace, the hurry
the troubles, the worries
just let the river take them all away
flow away

The Kentucky River near Shaker Village, Kentucky

A Journey to Ithaca: anchor at the island when you are old.

2008-09-08T15:10:00.002-04:00

A Journey to Ithaca #12

A Journey to Ithaca: Make haste slowly, festina lente

2008-09-08T15:07:00.005-04:00

A Journey to Ithaca # 11

this image would be cropped to eliminate the wing of the Cessna (intentionally included by the photographer but a great irritant and distraction to many who look at the image).

A Journey to Ithaca: To learn and learn from scholars.

2008-09-08T15:03:00.003-04:00

A Journey to Ithaca # 10

A Journey to Ithaca: Pray that the road is long.

2008-09-08T14:59:00.001-04:00

A Journey to Ithaca # 9

A Journey to Ithaca: Ports seen for the first time.

2008-09-08T14:57:00.002-04:00

A Journey to Ithaca # 8

A Journey to Ithaca: Always keep Ithaca in your mind.

2008-09-08T14:49:00.002-04:00

A Journey to Ithaca # 7

A Journey to Ithaca: Let your thoughts remain lofty.

2008-09-08T14:32:00.004-04:00

A Journey to Ithaca # 6 Let your thoughts remain lofty.

Note: in this image, the face of Justice Brandeis will be clearly visible. Look at 9 o'clock then into the image about one fifth of the distance of the width.

A Journey to Ithaca: there are many ways to Ithaca.

2008-09-08T14:22:00.005-04:00

A Journey to Ithaca # 5 ...you will enter ports seen for the first time There are many ways to Ithaca. Make haste slowly.

A Journey to Ithaca: do not fear.

2008-09-08T14:16:00.004-04:00

A Journey to Ithaca #4
When you set out on your journey to Ithaca....do not fear.

A Journey to Ithaca

2008-09-08T14:08:00.003-04:00

A Journey to Ithaca #3
When you set out on your journey to Ithaca, pray that the summer mornings are many.

Journey to Ithaca

2008-09-08T13:59:00.001-04:00

Journey to Ithaca #2
Always keep Ithaca in your mind.

Journey to Ithaca: A Picture Gallery for a Law School Classroom

2008-09-08T13:43:00.004-04:00

Journey to Ithaca #1 When you set out on your journey to Ithaca, pray that the road is long....That the summer mornings are many... Constantine Cavafy (1911).

Note: When classes begin at the Louis D. Brandeis School of Law at the University of Louisville, Dean James M. Chen introduces students to Ithaka, the celebrated poem by Constantine P. Cavafy.

The proposed picture gallery for a law school classroom uses pictures of Louisville, the launching point for the Lewis and Clark Expedition and the George Rogers Clark cabin to illustate notable lines from the poem. Eleven more images follow. The exhibition, however, will use only nine.

Same Skyline, Different Worlds

2008-09-07T10:24:00.004-04:00

Louisville's business, commerical and financial district shares the horizon with a net fisher seen here casting the net. The fisher has ample parking for his enterprise.

Louisville Indiana

2008-09-07T09:46:00.004-04:00

A Fresh Perspective
In search of a new way to look at Louisville, I went to the front perch of General George Rogers Clark--in Indiana! Sitting there in the rocking chair, I SEE Louisville from a fresh, Indiana perspective, the same perspective enjoyed by the great American explorer, conquistador and patriot. General Clark loved his cabin (built near the launching point of the Lewis & Clark Expedition) but moved to Locust Grove in Louisville to live with his siter after his health failed.

ps, the entire photoshoot is on my Flickr site at a gallery called Louisville views from Indiana.

Art vs. Art

2008-09-05T08:59:00.003-04:00

Art vs. Art, a painting competition in which artists compete against each other and the losing art is destroyed, is coming to the Mellwood Arts Center on September 6, noon - 6 p.m. Art vs. Art is a fund raiser for Primary Colours, an Indianapolis-based arts nonprofit.

In the first stage — the paint-off — the program invites artists to come to the arts center, pay a $10 fee, and paint for 4 hours. The supplies are provided by the competition. You can stop by to watch the painting at Mellwood and later go online to view the paintings and vote for your favorites from the following cities: Louisville, Columbus, Ohio, Hammond, Ind., and Indianapolis (Indy's paint-off is September 13; the other three are September 6).

Once the paintings have been painted and the votes have been tallied, the top 32 will be part of a death match, in which the audience votes for its favorite art, and the losing art at each level is either sold or destroyed. Yes. You heard it. They destroy the art, unless you, the audience, saves it.

If you'd like to see painters at their craft, and would like to have some fun, visit the Mellwood Arts Center on Saturday. I think the event will be a lot of fun.

A Classroom Picture Gallery #28 (last in round 2 series)

2008-09-05T07:41:00.005-04:00

#28

Doing well in Capture Kentuckiana voting although some have asked me to crop out the wing of the airplane (which I include to help define space and perspective).
** **
Note: The images included in round two have limited and simple subjects. Round one images are more panoramic. With the exhibit limited to nine images, panoramic views are the most cautious way to capture Louisville ethos.

A Classroom Picture Gallery #27

2008-09-05T07:37:00.001-04:00

#27

Doing well in the Capture Kentuckiana voting.

A Classroom Gallery #26

2008-09-05T07:34:00.003-04:00

#26

This image is doing very well in the Capture Kentuckiana voting.

A Classroom Picture Gallery #25

2008-09-05T07:29:00.003-04:00

#25

Bridge at Big Rock Park.
I love the winter sunlight.

A Classroom Picture Gallery #24

2008-09-05T07:25:00.004-04:00

#24

Baringer Creek, Cherokee Park
This picture is also doing very well in the Capture Kentuckiana voting.

A Classroom Picture Gallery #21

2008-09-05T07:16:00.004-04:00

#21

Louisville Steeples

This image is polling very well in the Courier Journal project and I am not surprised. This picture is rich with metaphor and evokes much commentary and inquiry. One of my personal favorites and used as a gallery card. Many world's share the same horizon.

A Classroom Picture Gallery #20

2008-09-05T07:13:00.002-04:00

#20

Picnic Table @ Hogan's Fountain

This image has recevied a large number of votes (I was surprised).