Saturday, July 25, 2009

My Letter to Professor Gates

Dear Mr. Gates:

First about me.

I am a 62 year old lawyer living and working in Toronto.

I'm Jewish. I have besides my law degree a Masters' degree in English literature from the University of British Columbia.

My eldest daughter, also now a lawyer, did her Honors’ English degree at McGill, and studied you a lot in her American literature concentration and cited you a lot for her Honors’ essay on James Baldwin and Toni Morrison.

Your prominence came after my time. I got my Master's degree in 1971. But I have read some of your writing and have dipped into some of your literary criticism and theory.

I have thought well of you from what I have known and read.

That said, I regret to say I think your behavior with Sgt. Crowley itself is regrettable.

After all allowances for your tiredness, frustrations and crankiness from a long trip and a locked door, I'd like you to know how I, an educated Canadian liberal, see your conduct. Perhaps I am a barometer of a certain range of enlightened opinion.

When your apparent friend the President said in a politically necessary after thought, and I emphasize “politically necessary”, that you probably “overreacted”, can you imagine what multitude of egregious conduct the euphemism “overreacted” was meant to cover?

From first to last and after, I find you in the wrong. You had two broad choices as to how to deal with an officer just doing his job: you could have understood his position and cooperated with him and saved any complaints for later; or you could have acted as you did, losing it more and more as events rolled along.

Crowley was, as is now well known, responding to your neighbor’s understandable concern at what she thought she saw. And you have commended her call for police help. But your immediate saddling of your high horse and riding it was unwarranted. Then, extending the metaphor, you began galloping and show jumping, getting in the cop’s face, calling him a racist, following him out and yelling at him, not letting it alone despite two warnings, to the consternation of the coterie of onlookers who experienced the increasing volume of your bellicosity.

It is a disappointing discredit to you that you told the officer that he didn’t know who he “was messing with”, as, in my construction of your psyche, you over heatedly and with conflation merged your sense of self importance with every put upon black man in America. Thus self aggrandizement fed self delusion to the point that you felt this incident marked some apotheosis of racial profiling and that you had the juice to take it to the man.

For me the only “whether” is whether Crowley should have arrested you. That is a judgment and was in his discretion. His call is within his margin for error. Hindsight always yields a better way, but perfection in gauging police action is not the test. The test is always reasonableness in the circumstances with latitude and deference to the cop on the spot and in the circumstances. But in reflecting on his judgment consider a few things. Match what you set off in what you must in your soul know was an overreaction, knowing at that point the officer was doing nothing wrong, match that with what was formative in his decision to arrest you: being called a racist from the outset, that yelling increasing in volume and tone and becoming more insistent and public.

Which is not to say, your abuse of Crowley justified his arresting you. That question will stand unresolved regardless of the extent of all debate. Disorderliness is a legal conclusion flowing from an apprehension of the evidence and the molding of the evidence into facts by a fact finder. Since the charges are dropped the question is doomed to irresolution. But this is to say, if nothing objectively wrong set you off, you can imagine well how something concrete and wrong in your abusive tirade and false accusation of racism prompted Crowley’s decision.

And should you wish to do some signifying, consider two related things: the image of a somewhat effete you handcuffed and perped away to be fingerprinted, mug shot and processed; and the image and sounds of the testifying solidarity of the rainbow coalition of the Cambridge police, and note and reflect on particularly the words of Officers Lashley, Figueroa and King, the latter tear-inducingly powerful in her innate dignity and outrage and punctuated by the supportive embrace between her and Crowley

So the outraged, put upon black man, a Harvard professor of great renown, privilege and celebrity, supported by his mayor, governor and president, all inclined here to abstract outrage, is confronted and stared down by highly moving, working class diversity joined together in solidarity at real outrage. The confrontation and stare down are intensified, if one thinks about it and puts these things together, by what finally must be seen as the President’s repudiation of his original words and support for you in his understated deflating euphemism of you overreacting. That, getting past the bland, politically nuanced trope, is a straight up, withering repudiation of you.

Finally, you reach Al Sharpton proportions in your after the fact condemnation of Crowley as a racist and a rogue cop. But you have had the bad luck of encountering the wrong guy. He is the exemplary cop who tried to revive Reggie Lewis, who was handpicked by his former black commanding officer to teach racial profiling and who, as noted, has the unstinting support of his racially diverse colleagues.

So, in sum, save for granting some allowance to the question of whether you should have been arrested, in the end things are the opposite of how you painted them. Crowley is essentially in the right and you are essentially in the wrong. Race played no part in what he did and only arises from you playing the race card wildly wrongly and wildly badly. The teachable moment here is inter racial, working class solidarity seeing things for the way they really are and telling truth to so much aggregated power, forcing a President to back down and making you look clownishly absurd in your outlandishness here, perhaps never to be taken seriously again by many whom you would want to take you seriously.

Sincerely and respectfully,

Itzik Basman

Hearsay in Civil Cases in Canada

Just letting you know:

Monday, July 20, 2009

Justice Abella's less than impressive reasoning

Why in this case did Justice Abella go on and on to talk so much and so diffusely about how much say kids under 16 can have on their medical treatment? Why did she talk so much about balancing their evolving autonomy against the state's need to look out for them better sometimes than they can? Why did she go on and on about how the legislation in question was not arbitrary? In sum, why did she go to such exhausting lenghts when, after it all, she laid it down as an inflexible rule that in matters of life and death no kid under the age of 16 (or whatever age the relevant legislation sets in which ever province) can decide to reject life saving treatment. Abella cited the answer she coud not herself see clearly. Her cite is what her judgment boils down to, all her endless commentary failing to say something quite different notwithstanding:

"...[79] The difficulty and uncertainty involved in assessing maturity has prompted some experts to suggest that children should be entitled to exercise their autonomy only insofar as it does not threaten their life or health. As John Eekelaar remarks:

We cannot know for certain whether, retrospectively, a person may not regret that some control was not exercised over his immature judgment by persons with greater experience. But could we not say that it is on balance better to subject all persons to this potential inhibition up to a defined age, in case the failure to exercise the restraint unduly prejudices a person’s basic or developmental interests?

(“The Emergence of Children’s Rights” (1986), 6 Oxford J. Legal Stud. 161, at pp. 181-82)..."

Justice Binnie reached a deplorable conclusion: that the state will let a 14 year old kid decide to die by respecting her rejection of a life saving transfusion of blood. But he was right to note more than once in his reasons that Abella never once met squarely the kid's argument.

As a side note, this case highlights the need for a more sophisticated analysis of what "arbitrary" means as a constitutional matter given the inescapability of line drawing in framing, defining and applying rules and principles and tests and standards in deciding cases.

Friday, July 17, 2009

empathy, sympathy and forgiveness

I don’t think that “to understand is to forgive” on a number of grounds. To understand is to understand. Understanding may yield forgiveness or it may equally yield more intransigent condemnation, depending on what gets understood. Moreover, one might forgive without understanding as in “I don’t know why you did that, but I forgive you.” On these bases, amongst others, it seems plain to me that we can understand what we don’t like and not have that understanding constitute our empathy.

If we want to get away from circular arguments, empathy means x, therefore x is empathy, we need to experience the meaning of the word empathy and let its connotations flow through our minds. So I tend to think it’s circular for a shrink to say when she treats a patient who she understands but does not sympathize with—engaged detachment—she’s empathizing with her patient. Her unexamined premise forces a particular conclusion when the issue is: what is the meaning of the concept the premise assumes a certain meaning for.

From my own thinking about empathy, and when I let the suggestiveness of the word drift through my mind, I tend to think it’s core is sympathetic identification, which is different from, and more encompassing than, sympathy alone and is different from, and more encompassing than, understanding alone.