Category Archives: Random Musings

Law like love: thoughts on a Supreme Court nomination, ADR, and jurisprudence

Law like loveEarlier this week President Obama announced the nomination of Federal Appeals Court Judge Sonia Sotomayor to the U.S. Supreme Court.

Predictably her nomination produced swift reaction: cheering accolades from some quarters and harsh condemnation from others. What caught my own attention was the response of a number of conservative pundits to an article Sotomayor wrote with Nicole Gordon, “Returning Majesty to the Law and Politics: A Modern Approach” (PDF), 30 Suffolk U.L. Rev. 35 (1996), based upon a speech Sotomayor delivered in February 1996 as part of the Donahue Lecture Series, a program instituted by the Suffolk University Law Review to commemorate an honored 1921 alumnus, Judge Frank J. Donahue. A former faculty member, trustee, and treasurer of Suffolk, Donahue served as an Associate Justice of the Superior Court of Massachusetts for 42 years. (As an aside, over the years the Donahue Lecture Series has featured many distinguished speakers, including Chief Justice William H. Rehnquist, Associate Justices Antonin Scalia and Stephen G. Breyer, and Judge Richard A. Posner.)

Sotomayor’s article acknowledges the lack of public confidence in law and legal institutions, due in part to law’s propensity to evolve over time and the uncertainty of its outcomes, and sets forth some modest proposals to restore confidence in the legal profession and the judiciary.  Sotomayor recognizes, too, the binary limitations of law, giving alternative dispute resolution a nod:

…the adversary system, almost by definition, cannot address the gray area of the “truth” present in most cases because the system tends to produce all-or-nothing winners and losers. This is why settlements and new forms of “alternative dispute resolution” are so important.

What provoked the heated wrath of several conservative voices? These words:

The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances.

And these:

The constant development of unprecedented problems requires a legal system capable of fluidity and pliancy. Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.

And finally these:

…a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction…[referring to cases of first impression]

Sotomayor’s critics are quick to see these as nothing more than secret code, the tell-tale signs of judicial activism, and convincing proof that Sotomayor will make up law out of whole cloth to advance a radical left-wing agenda.

Alas, there is nothing either remarkable or sinister about what Sotomayor has written. She is simply describing what every first-year law student in common law jurisdictions like the U.S. learns during his first few weeks in law school: that law is in flux, gradually but constantly evolving, and that some of it, as indeed it has been for centuries, is the product of judicial decision making not legislative action.  At the risk of reproducing here what has rapidly devolved into a tedious cliché through constant repetition, I offer you what jurist and legal scholar Oliver Wendell Holmes said about the law in his best known work, The Common Law:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

On a less lofty, more pragmatic level, the uncertainty of law is well known to its agents, intermediaries, and surrogates: it is what creates leverage at the mediation table. As litigators and the mediators who assist them behind closed doors know full well, the law can be unpredictable, so better trade hope for certainty by settling.

While pundits cannot see it, even the poets know of the mutability of law; I leave you with W.H. Auden’s moving work, “Law Like Love”, which speaks of law’s unknowable and ever-changing nature:

Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.

Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.

Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.

Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.

And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.

If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,

No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyvay:
Like love I say.

Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.

Negotiating online relationships: a marketing mistake to avoid

oops! marketing strategies to avoidAs much I have been enjoying Twitter, the social media and instant messaging tool, it has one black mark against it: some followers try to sell you stuff you don’t want. I have quickly learned who not to follow back to avoid an influx of messages that are little more than shameless self-promotion or snake-oil ads.

Occasionally, these self-marketers will also pursue you beyond Twitter, sending you emails that push products or services.  One such effort backfired in a big way for the legal marketing specialist who deployed it.  They sent me the following message that begins with these words:

I have been reading your Mediation Channel and following you on Twitter. It is apparent that we have a mutual passion helping lawyers succeed. I have an opportunity for us to collaborate and do just that.

How flattering! Bloggers love to hear from their readers, so this isn’t a bad way to get a blogger’s attention. There was just one problem.

Despite the fact that my Twitter account links to my blog, which in turn provides my email address on a contact page readily accessible from the plainly visible navbar and from a link in one of my sidebars, this marketer sent this message to a different Diane Levin, who immediately spotted the mistake and took the trouble to forward the message along to me, the intended recipient.

This tipped me off that this marketer hadn’t in fact paid much attention to what was on my blog. In fact, it’s pretty obvious they hadn’t bothered to visit my blog at all. Since marketing is about building relationships with prospective clients, at least make an effort to be sincere and get the important stuff right.

Law has a PR problem: too often, lawyers viewed as instigators not healers of disputes

Speed bumps ahead unless lawyers address public image problemI spent Mother’s Day weekend in the town where I grew up, visiting my folks. On the drive eastbound home to Boston this morning along the Massachusetts Turnpike, I spotted the sign, hanging from an overpass somewhere past the Charlton service area. Rigged from a white tarpaulin or a bed sheet, it bore the following words, spray-painted in crude red letters:


As I drove on, I thought about the person who painted the large red words and hung the handmade sign above the lanes of cars below in defiance of local authorities. It was not hard to imagine what circumstances drove him or her, on Mother’s Day weekend, to declare war on a system they believed pits parents against each other in a pitched battle for their children.

It might be easy to dismiss the messenger as a lone crackpot with a can of spray paint – except that this is the objection I hear all too often from mediation clients when I remind them how important independent legal advice can be as they weigh the difficult decisions they face. No, they insist, lawyers will make things worse.

A lawyer myself, this depresses me. What happened to make people think the worst of lawyers, to believe that lawyers provoke not resolve conflict? And what are we going to do to change their minds?

Is this the end of blogging?

If you’re a member of either the legal or ADR blogging community (or both, like me, who stands with one foot in each of those worlds), maybe you’ve noticed it. Something feels different.

It’s like a funeral around here. Last week, Robert Ambrogi marked the passing of two popular law blogs. David Giacalone, retired attorney and mediator, and the poet laureate of the legal blogging community, announced that he would stop blogging as of March 1, 2009. And the anonymous editor of Blawg Review, the high-quality review of legal blogging, wonders, “Is this the end?” with the publication of the 200th issue, prompting Dan Hull to invoke magic to prevent the death of this mighty blogging institution.

Among mediation bloggers, we’ve had a death in the family as well: one of the first of the mediation blogs, Mediation Mensch. And I’ve noticed less of the reciprocal linking, the luminous web of conversation weaving one blog to the next, and the robust debates we ignited. Increasingly it seems we are talking to ourselves alone here in the dark. The conversation has been outsourced to Twitter, the microblogging and instant messaging tool that is all the rage these days. But what happens to the quality of conversation in a place which limits messages to 140 characters?

Do these portents herald the end of blogging? Or is it just change, making way for the Next New Thing? Look out, you rock ‘n’ rollers:

January 2009 Carnival of Trust

The Carnival of Trust

Welcome to the January 2009 Carnival of Trust, a monthly review of posts that explore the most essential ingredient in all our relationships, business and personal.  Charles H. Green, CEO of Trusted Advisor Associates, and an expert on trust in business relationships, is the creator of the Carnival of Trust, and I am deeply honored  that he extended an invitation to me to serve as host this month.

That trust is vital cannot be doubted, as even a casual glance at newspaper headlines makes plain. From the Bernie Madoff scandal to the impeachment of Illinois governor Rod Blagojevich to the refusal of U.S. banks to account for the money they received in the recent Wall Street bailout, it has never been clearer that trust matters — and matters a lot.  Violations of trust hit hard, whether public figures and national interests are at stake or between private citizens behind closed doors.

But these events that have unfolded on the national stage affect people locally.  It is at that level that trust is experienced — personally, immediately, intimately.  It’s that view at the ground level that this Carnival of Trust is dedicated to.  The 10 posts that I have selected all share something in common.  It’s their ability to capture, up close and personal, the meaning of trust — its significance, its bestowal, its loss, its redemption.  They bring us face to face with trust — and our individual and collective responsibility to preserve and protect it.

Trust in Sales and Marketing

Taking us on a journey of trust  is a blogger identified only as Steve, who documents his and his wife’s strategies for creating and building wealth on a single income at  He asks and answers the question, “Should You Trust Your Customers?” through three compelling real-life examples drawn from the online business he and his wife run. To find out whether trust triumphed, read his story.

In “Lessons Learning from Improv“, marketing consultant John Moore of Brand Autopsy pauses to reflect on what 18 weeks of improv comedy classes taught him personally about everyday business life — important lessons he generously shares with his readers about fellowship, mutual support, and the value of trusting others to achieve success.

In “What’s Your Hook?“, Meredith Liepelt, a consultant specializing in marketing for women entrepreneurs, offers small business owners advice courtesy of ice cream purveyor Baskin-Robbins: give potential clients a free taste of your services to help them build confidence in you and your ability to serve their needs well. Liepelt demonstrates step by step the effect of the free sample on one prospective client.

Trust in Leadership and Management

Albert Schweitzer once wrote, “”No human being is ever totally and permanently a stranger to another human being. Man belongs to man. Man is entitled to man. Large and small circumstances break in to dispel the estrangement we impose upon ourselves in daily living, and to bring us close to one another, man to man.” That’s the message of an untitled post on the blog of Robert Bruner, Dean of the Darden School of Business at the University of Virginia.  He exhorts the Darden community to remember how important ethics and reputation are to creating a sustainable legacy for the future.  He calls on every member of that community to take personal responsibility for encouraging others to do what’s right, to speak up when others err, and to make a commitment to serve as a living example of the ethos of trust.

Professional coach Christopher Edgar at Purpose Power Coaching wonders, “Do You Distrust Others, Or Just Yourself?”  Describing the struggle of one of his clients to come to terms with her own inability to trust herself, Edgar uses his client’s story to bring to life the lesson that trusting oneself is closely linked to success in business.

Trust in Strategy, Economics and Politics

Rushworth M. Kidder at Ethics Newsline wants to know whether “Fighting Ponzi with Ponzi?” is a sustainable strategy in the wake of recent revelations surrounding Bernie Madoff. He sees lessons from the Madoff scandal for the current economic crisis and persists in asking the hard questions: “Are we at risk of becoming a nation of Ponzis? Are we building today’s bailouts and stimulus packages to guarantee a working economy tomorrow — or are we, like Ponzi, paying current dividends out of our children’s capital?”

Scott Greenfield, who blogs at Simple Justice, laments the demise of civic responsibility with the rise of an alarming cost-saving trend: “Cash & Carry Law Enforcement“, where citizens are charged for police and fire emergency services. Greenfield delivers a powerful civics lesson: “The fundamental concept of the common good means that we, as a society, sacrifice a little for the benefit of the whole.”

Trust in Advising and Influencing

In “The Workplace as Moral Testing Ground“, Mark Brady, blogging at The Committed Parent, writes movingly of the important responsibility that parents, teachers, and others who mentor the young hold for the development of children as moral beings, and with unflinching self-honesty reflects on his own youthful errors.

Sam Sommers, a blogger at Psychology Today, recounts an eye-opening experience on an elevator to warn of The Power of Us, the irresistible influence that shared identity in a group can hold over us, swaying us in our judgments when we interact with someone who belongs to the same group that we do. He cautions, too, that “usness” — shared affiliations of culture, privilege, or class — can place obstacles in the path of women and minorities.

This has been a difficult winter so far for folks like me who live in New England.  An ice storm in December left numerous communities without power, some for many days.  For some, the response of utility companies was frustratingly inadequate as people were kept literally and figuratively in the dark.  Conflict resolution expert Tammy Lenski, herself without electricity for over a week in her New Hampshire home, brings the voice of personal experience to dispense wise advice for “Crisis communication and the impact on conflict, anger” at Conflict Zen.

This brings us to the end of the January 2009 Carnival of Trust.  I thank you for joining me.  At a time when trust is imperiled, perhaps we’d be prudent to heed the words of 19th century humorist Finley Peter Dunne who wrote, “Trust everybody, but cut the cards.” Yet I’d like to end on a more hopeful note with the following observation from Ralph Waldo Emerson:

“Trust men and they will be true to you; treat them greatly, and they will show themselves great.”

Prevent conflict escalation: use Google's new Mail Goggles email tool

Prevent conflict with Mail GogglesAs anyone knows who has awakened in the sober light of dawn to regret an email sent in haste the night before, electronic communications can be lethal. Be too quick on the trigger with the “send” button and you may find you’ve initiated DEFCON 1 in your workplace or personal relationships. (And forget about negotiating by email, as Victoria Pynchon cautioned readers recently — its very nature seems to encourage anti-social behavior, including lying and deception.)

Google, understanding full well the dark side of human nature (particularly that side of human nature that responds to its email after too many Jell-O shots in the wee hours of the morning), offers a solution: Mail Goggles. Here’s how it works:

When you enable Mail Goggles, it will check that you’re really sure you want to send that late night Friday email. And what better way to check than by making you solve a few simple math problems after you click send to verify you’re in the right state of mind?

By default, Mail Goggles is only active late night on the weekend as that is the time you’re most likely to need it. Once enabled, you can adjust when it’s active in the General settings.

Mail Goggles may prove to be one of the world’s most powerful conflict prevention tools yet. It’s available on all Gmail accounts. Simply click on “Settings”, then “Lab”, then scroll down to “Mail Goggles” and select “Enable” to protect yourself from further embarrassment.

Judaism, media literacy and U.S. elections: reflections on the Jewish New Year

Media literacy

Last night marked the start of the celebration of the Jewish New Year, Rosh Hashanah. In anticipation, several days earlier, I began rereading a book I’d acquired several years ago, Nothing Sacred, a controversial work by media critic Douglas Rushkoff that seeks 21st century meaning in the traditions and texts of Judaism.

Rushkoff argues that Judaism is “a religion dedicated to media literacy” — an approach to deconstructing, analyzing and questioning media’s messages — which offers digital-age lessons in participatory democracy for the secular world.

He points to Judaism’s core practices:

Judaism is a religion dedicated to media literacy. The initiation to adult practice is not an act of faith, but a demonstration of literacy called a bar (or bat) mitvah…Jews have to be able to not only read the text, but also understand what it means…

Further, Jewish rituals require community participation. The Torah scroll cannot even be read unless ten people — a minyan — are present. This was a safeguard against isolation and its destructive impact. If only such priorities were used in the media space, where an isolated, self-doubting viewer is considered the most valuable target for markets selling on TV or the Web.

In an undated interview with the Jewish Public Forum, Rushkoff observed,

The fact that Jews are not supposed to read the holy texts alone – we’re not even supposed to read the Talmud by ourselves – is also fascinating. It forces us to be social and interactive with our stories and laws, rather than alone with them. It’s more like participating in a chat room or newsgroup than sitting passively on a Web site. We can maintain some critical distance. We are invited to think and comment. The text is kept alive. Transparent.

In Rushkoff’s world, Judaism’s traditions translate into lessons for 21st century citizens.  We all bear responsibility to remake ourselves into knowledgeable, literate consumers of modern media who can analyze and decode its messages and gain resistance to propaganda and distortions of fact. Discussion and constant questioning, not blind-faith acceptance, are essential to uncovering truths and debunking false claims, whether in spiritual practices or political ones.

Today, as a new year begins, as the U.S. faces financial chaos, and a presidential election looms just weeks away, I pause for a moment to consider how Rushkoff’s insights on Jewish traditions apply to the secular texts that are the foundation of American democracy — our Constitution, our laws — as well as to the cacophony of messages through media — TV, radio, print, web — that seek to sway us.

Rushkoff of course is right: to participate fully, to be engaged citizens, we must demand media literacy of ourselves (and also, I would hasten to add, of those who would lead us).  We must be literate enough to decipher the messages that shape our lives and our decisions — at the moment, the choices we Americans will make in the voting booth in November.

Envision word peace with Wordle, a word cloud generator

Create word peace with word clouds with Wordle

I was fascinated last week by the word clouds — graphic depictions — of the convention speeches of Senators Barack Obama and John McCain that appeared on so many web sites and blogs.

Word clouds are visual representations of words. The larger the word in the image, the more frequently it appears on the site.

I was delighted then when the folks at the National Arbitration Forum Blog created an ADR word cloud using Wordle, an online tool.

I generated the images you’re seeing by feeding the content of Mediation Channel and my other site,, to Wordl. You can create one for yourself using a blog’s feed or by submitting words of your own.

It’s the chance to see right before your eyes the weight words are given as Wordle captures in a snapshot what is important at a particular moment in time.

Word peace with Wordle

Barack Obama: mediator to a divided nation

Uniting America once againIn the days after the towers fell on September 11, 2001, Americans everywhere came together to honor the dead and demand justice. The world stood beside us, sharing our shock and grief.

That unity proved short-lived. “You’re either with us or against us” became U.S. foreign policy, alienating long-time allies. Pursuit of war against Iraq tore Americans apart as the U.S. divided into two opposing camps, red state from blue. Earlier this year, conservative pundit Rush Limbaugh mocked Republican presidential hopeful John McCain for his efforts to reach across the political aisle, asking, “”When did the measure of conservatism, when did the measure of success, when did the measure of progress, when did it become reaching out to Democrats?”

Last night, in an electrifying speech, Barack Obama accepted the Democratic party’s nomination for president.

What struck my ear, as a mediator, were his words on the importance of setting aside our differences to address the tough issues America faces — economy, jobs, health care, social issues, civil liberties, national security:

The times are too serious, the stakes are too high for this same partisan playbook. So let us agree that patriotism has no party. I love this country, and so do you, and so does John McCain.

He invited Americans to focus on the future and our shared interests rather than on the positions that have riven us, acknowledging the hard work ahead:

America, our work will not be easy. The challenges we face require tough choices. And Democrats, as well as Republicans, will need to cast off the worn-out ideas and politics of the past, for part of what has been lost these past eight years can’t just be measured by lost wages or bigger trade deficits. What has also been lost is our sense of common purpose, and that’s what we have to restore.

We may not agree on abortion, but surely we can agree on reducing the number of unwanted pregnancies in this country.

We may not agree on abortion, but surely we can agree on reducing the number of unwanted pregnancies in this country.

The — the reality of gun ownership may be different for hunters in rural Ohio than they are for those plagued by gang violence in Cleveland, but don’t tell me we can’t uphold the Second Amendment while keeping AK-47s out of the hands of criminals.

I know there are differences on same-sex marriage, but surely we can agree that our gay and lesbian brothers and sisters deserve to visit the person they love in a hospital and to live lives free of discrimination.

You know, passions may fly on immigration, but I don’t know anyone who benefits when a mother is separated from her infant child or an employer undercuts American wages by hiring illegal workers.

But this, too, is part of America’s promise, the promise of a democracy where we can find the strength and grace to bridge divides and unite in common effort.

It’s about time.

Read the full transcript of Obama’s acceptance speech.

The paper it's printed on: pondering the meaning of money

What is money?Money.

It has been said to make the world go around. It has been maligned as the root of all evil. It breeds litigation. It spurs negotiations onward. It serves as commercial and political lubricant. Alexander Hamilton once called it the “darling [object] of human avarice and enterprise”.

We fill our wallets and our bank accounts with it, we spend it or save it, we go to work each day to earn it. But do we really understand it, this thing we call money? What is its fundamental nature? What is money anyway?

Legal scholar John J. Chung, Associate Professor of Law at Roger Williams University School of Law, has some surprising and provocative answers in a recently published paper, “Money as Simulacrum”. From the abstract:

This paper explores the meaning and nature of money, and the form in which money exists today. It begins by asking such basic questions as what is money and explores the history and development of money. We live in a world of increasing and stunning wealth, a world where billionaires are as common as millionaires once were, and a world of increasing wealth inequality. This paper contends that such a world exists because money is a pure simulacrum that has taken on a reality of its own, a reality that is now untethered to the fact that money’s significance used to be limited by its role as a symbol of an underlying thing of value. But money is now a pure thing in and of itself, with value, existence and purpose that is independent of any signified thing. When money became released from its role as symbol, the foundation was laid for the world we live in today…The purpose of this paper is to discuss money in its original conception, money as it exists now, and where the meaning and nature of money may be headed.

Chung writes,

Money is now a pure abstraction with its own self-referential value and reality, whose creation is no longer constrained by a reference to anything else. It is no longer a symbol; it is its own reality.

To understand the history of the dollar or the euro in your pocket as well as its deeper meaning in the early 21st century, read “Money as Simulacrum“. Your time will be well spent.

(Thanks to Steve Hicks for the link.)