Saturday, February 23, 2019

Woody Allen Yet Again, A Sidebar Comment

First this:

Then me:

....I agree with you that Allen’s films ought be separable from the allegations against him of child abuse. For some that will require the passage of more time on the idea that “time heals all wounds,” (well, not all but for sure most of them.)

But I do want to quarrel just a little with your careful evenhandedness over the allegations. I say that on this score more boldness is in order. 

The test in most civil litigation is the balance of probabilities, or more likely than not, which at a mimimim numerically is 51 out of 100. A civil court finding of no liability means that for it, having seen and assessed all the probative evidence, it is more likely than not that Allen didn’t do anything wrong, which is to say, the balance of probabilities weighs in his favour. 

It’s trite and is an epistemic truism that ultimately we can never know what happened: but that’s true of nearly every “he said/she said” type of allegation where no “smoking gun” exists. So what’s the point of trotting it out yet again? Why not better say something like, “The judge of all evidence adduced in court found it more likely than not that Allen was falsely accused.” Btw, that evidence included this—you’ll forgive me for quoting Wikipedia:

....On August 17 the Connecticut State Police announced that they were investigating the assault allegation.[44][45] Frank Maco, the Connecticut State's Attorney for the Litchfield district, asked the Child Sexual Abuse Clinic of Yale–New Haven Hospital to evaluate whether Dylan would make a viable witness.[51][12] Consisting of two social workers, a nurse and Dr. John M. Leventhal, a pediatrician, the Yale–New Haven team interviewed Dylan, Dylan's psychologist, Allen, Farrow, their domestic staff, and others.[52][53] Leventhal signed the team's report, while Dylan was interviewed by the social workers.[53][12] Completed in March 1993, the report went beyond its brief, concluding: "It is our expert opinion that Dylan was not sexually abused by Mr. Allen".[c]Its conclusion was based, in part, on the view that Dylan had difficulty telling a consistent story and suffered from "thought disturbances".[52][54][d] ...

So, again, my point on what is admittedly a side bar to your core argument is that we needn’t be so delicately even handed in mincing around the issue of Allen’s culpability. Again, we can say something like, “According to the most assiduous and disinterested assessment of all the relevant evidence, the probability is that Allen never did anything wrong.”...

Thursday, February 21, 2019

My Tweet On Cormac McCarthy’s The Sunset Limited As A Film

Just saw #thesunsetlimited. 

To diminish/dismiss it as a warmed over, sophomoric argument—White is admittedly overwrought—is to miss the human, flesh and blood, two-human-lives drama that  finally is more important and more than, is the sum of, all the fraught exchanges.

Sunday, February 17, 2019

The New Criticism And POMO Literary Theory

First this: this 

Then me:

Subject to two big qualifications I’ll mention in a minute, I was with you by and large until I read this:

….The problem with literary theory is that it is not proper “theory.” At best, it is hypothesis without predictive value. There may be some descriptive capacity in literary “theories,” but they do not predict anything about prose or poetry…

How could a theory— a plausible general principle or body of principles offered to explain something—of literature, which in its case can only be descriptive account of it, be predictive? What could it, or any theory of literature, predict? Wellek and Warren, who wrote the classic Theory Of Literature wouldn’t, I wouldn’t have thought, have made any claim for their theory having any predictive value. Neither, I’d say, would Frye.

The first qualification is to distinguish between POMO literary theory or literary critical thinking and the New Criticism, which saw/sees literary works as marked by paradox, tension and often by deliberate ambiguity as they emerge from the way in which language is used and, so to say, build into a literary world, a coherent whole. Wellek and Warren say that in literature “world” is equivalent to “‘attitude toward life’ or tone implicit in the world…”

They argue the need to see a literary work as a totality and for a view of form as naming “the aesthetic structure of a literary work—that which makes it literature…that which aesthetically organizes its ‘matter.’” For them, a literary work is a self defining totality with its own mode of existence, which is to say, is its autonomy: “the novelist offers…a…world…recognizable as overlapping the empirical world but distinct in its self-coherent intelligibility.” And it’s world view that Frye describes when he identifies form as “meaning holding the poem together in a simultaneous structure.”

The second is that in the elucidation of form and meaning as one, students, teachers and critics are doing something rigorous and disciplined, something that, like anything taken seriously, is easy to parody. Sometimes parody is apt but it can be facile and callow when the seriousness of the parodied project is actually worthwhile. The elucidation of the techniques and meanings of great works is worthwhile and it doesn’t exclude more casual reading and reviewing.

So Bellow’s playful cri de couer fails on at least one big ground: he conflates the discipline of literary study, necessary but not necessarily fun, with reading and reviewing purely for enjoyment. The effects of the former can deepen the the joy of the latter.

And, finally, this piece, while it is clear and correct in its critique of literary theory, suffers from failing to distinguish between on one hand, the New Criticism and the theory of literature it rests on, which wants to go to heart of works to understand them, all worthwhile, and, on the other, POMO literary theory, which reduces works to texts exemplifying somebody’s systematic (and always reductive) account of the way things are. In that, texts are vehicles for understanding that exemplification and are secondary to it, next to incidental. Here the grounds are fertile for parody.

Monday, February 11, 2019

A Few Thoughts On Jody Wilson Reybould And Solicitor Client Privilege Re SNC Lavalin

If I’m a criminal defence attorney and had had a client who told me he was innocent of charges and who then hired another lawyer, why would I, if I was asked, refuse to say what my client had told me in proclaiming his innocence?

Especially if with his new lawyer he continues to say he’s not guilty? 

What aspect of solicitor client privilege or the duty of confidentially stops me from saying what he’s told me as to his innocence and what he continues to say as to it? 

And doesn’t his ongoing public statement constitute a waiver of the privilege and the duty, if they even apply, to that extent of that proclamation of innocence? 

So here Reybould as AG was the PMO’s lawyer.

It now has a new lawyer, Lametti.

So she owes it a duty of confidentiality and the need to honour privileged communications, the latter of which essentially covers legal advice she gave.


1. her advice is manifest—she refused any suggestion, request or intimation made to her to overrule her DPP and and agree to remediation. In effect, her advice was to reject remediation.

2. Here the PMO can be taken to have proclaimed its innocence and to continue to be doing so.

So what in principle stops Reybould from affirming there was never any attempt to influence her by the PMO, as opposed to the other side of the Shawcross principle, under which govts short of influencing decisions can make what it thinks are alternatives and options to be considered known, but must stop short of suggesting, at a minimum, what the AG ought to, should, do? 

I can’t see the claim of solicitor client privilege or the duty of confidentiality stopping her from saying the PMO never influenced her.

Can you? 

Is there any argument that because “influence” is here a legal judgment or conclusion about a set of facts, all the interactions, as opposed to a straight assertion of innocence, that the two cases are disanalogous? 

I wouldn’t have thought so. 

The only principled reason I can see for Reybould’s silence is that she’s not sure whether the PMO crossed the line, which, if that’s the reason, is damning enough to the government. 

Wednesday, February 6, 2019

Toward An Attempt At A Definition Of Social Justice

How’s this: 

Social justice is the collective remediation of serious injustice afflicting a large seriously disadvantaged group and is the vindication of its entitlement?

Just taking a shot at the definition of it.

No doubt it needs a lot of work, if not complete rescuing or overhauling. 

Tuesday, February 5, 2019

A Lay Note, Poor Thing That It Is, On Semantic Originalism

A note to two guys:

I’ve been (what I laughingly call) thinking about why on an originalist account courts early on in principle couldn’t have held that capital punishment is “cruel and unusual.” 

To discover original public meaning, the explorers look at all kinds of contemporaneous utterances, written and oral, as well as considering the state of things in the common law. (As I understand it, unusual then meant an atypical practice.) If in that investigation, there was, as seems to be so, no consensus, no critical mass of agreement, nor any convergence of opinion that capital punishment was cruel—it certainly was typical—as criminal punishment went, then how could a court in those times have concluded it was cruel? 

Also there are US constitutional provisions that speak of and recognize capital crime: 

...No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation...

And from section 1 of the 14th Amendment:

...nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws...

The question as to whether a court can now on an originalist account so hold that capital punishment is cruel and unusual is a different one that has a proposed answer in a province of originalist theory called semantic originalism. I’m not so very knowledgeable about it but as I superficially have it, it seems to boil down to the difference between detonative and connotative meaning: which is to say, there is a core of fixed meaning, detonative meaning, and then a range of possible meanings coming from among other things open ended language and changes in general understandings over time: 

...No originalist disputes that the Constitution is sometimes, like a novel, hard to interpret, and that readers might have different understandings of the text; readers at the time of the Founding did, too. Some words create ambiguity, intentionally or unintentionally. But each word still has an objective public meaning; conventional usage still limits our interpretation; and some interpretations are better than others.

Yet, a commitment to originalism doesn’t rule out the possibility of adaptation to future circumstances. Perhaps the ratifiers of the Fourteenth Amendment did not believe that the Constitution required desegregating schools, for instance, but it doesn’t follow that Brown v. Board of Education was wrongly decided. If originalists believed that only the original, expected applications of the Constitution are valid, then the First Amendment wouldn’t apply to speech on the Internet, and the Fourth Amendment’s guarantee against unreasonable searches and seizures wouldn’t apply to GPS devices. Most of the Constitution’s provisions define standards or principles—unreasonable searches and seizures, equal protection, due process—with meanings that can apply to new situations....


One other thing, on Ontario’s Interpretation Act, Section 4:

....4. The law shall be considered as always speaking and, where a matter or thing is expressed in the present tense, it is to be applied to the circumstances as they arise, so that effect may be given to each Act and every part of it according to its true intent and meaning. R.S.O. 1990, c. I.11, s. 4....

Apparently the phrase “as always speaking” has a lengthy progeny. 

I think it can be read with reference to that detonation connotation distinction and remain consistent with semantic originalism:

....Yet Aubrey makes clear that in Australia statutes are now presumed to be ‘always speaking’. That position is endorsed by our leading statutory interpretation treatise as well, an authority which the joint judgment cited in support of its characterisation of the ‘always speaking’ approach (at n 51). As to what it entails, that can take a number of forms depending on the relevant factual and statutory context. For example, the orthodox distinction between the connotation and denotation of statutory words permits the scope of a statute to extend to new phenomena whilst its original meaning remains fixed...

From this

Maybe we can talk about this sometime. 

I’ll just note that the more I read about originalism’s theoretical means of dealing with new issues I start to get dizzy in separating it from living tree interpretation save for what seems an unobjectionable and crashingly obvious and trite truism that in interpretation, construction and application courts shouldn’t override legislation and substitute their views for what the law provides.  

On Maher On Adults Reading Comic Books

Maher on adults reading comic books:


Maher's particular form of arrogance is hard for me to stomach, so I may be having a difficult time separating the man from the opinion here. But I think he's off-base.

I haven't read a comic book since I was about 14, but I used to like them a lot. Things have changed since I read comics as a kid though, and certainly since Maher did. The simplistic nature of the superhero genre isn't so simplistic anymore. There are lots of authors who have reinvented and reinterpreted these heroes, and had them struggle with more complicated and contemporary problems. Moreover, they aren't all written for kids.

Maher, I think, has simply transferred his simplistic view of religion - fairy tales that only dumb adults or children believe - and applied it to comic books. 

It's hard to see Maher's logic, though. He's choosing a random example of someone online (sans age, gender, etc.) who said they were grateful for Stan Lee's contribution to their life. And from that he's extrapolated that (a) comic books are for kids; (b) intelligent adults should not read them; (c) that adults think they're important suggests one important reason why Trump is president. He insists we're not getting dumber, and that neither is our entertainment, but still, you know, Donald Trump.

It's just kind of a mess, honestly.

Tales of extraordinary people (Hercules springs to mind), are old and enduring in much the same way that classic fiction is. It isn't obvious to me that because some adults enjoy comic books, they can't think deeply about current events or politics. If you're interested, you can see a Bloggingheads that was recently done about one of what Maher might call pseudo intellectual professors talking about Stan Lee and his legacy.


First off, I share your dislike of Maher: he puts me off big time, so much so that he’s an inspiration to the upward movement of my viscera.

I’ll take your point about comics, graphic books and the like having evolved. Maybe they do have artistic merit sufficient for mature interest. Maher should have taken that into account and so should I. I’m a forced agnostic on the point, “forced” because I have to cop to sharing Maher’s intuitive distrust of them having that merit. But really I don’t know and, so, my forced agnosticism. 

But, two big buts (and without any surgical enhancement.)

One, if I can judge the question of merit by the small slice of flicks I’ve seen, Wonder Woman, and a few I took Max and Roxy too, then I’m with Maher. They’re not worthy of mature attention and pretend to that worthiness by nods to faux sophistication with a bunch of self deprecating and like types of one liners that give off a comic effect and effect the subtext, to my mind, “Don’t worry. We the movie makers are hip enough, just like you the audience, to know that this is all silly: we don’t take it too seriously. We’re so hip in fact that we distance ourselves from this foolishness by joking at it at its expense. It’s our sly subversion.” 

Two, if my one has any substance, then I think the speculation that Maher’s pooh poohing on comics is an extension of his outraged atheism is just that, a piece of speculation no better than many others and ultimately unknowable. If one has substance, then his put down arises from the evidence of the genre itself.

And a third but as well, on Maher’s logic: if like the small sample of superhero movies I’ve seen, Stan Lee, the reverence for whom is Maher’s pivot into his argument, exemplifies the form, then Maher’s point is well taken. (This May well be met by the evolution of the genre.) If Lee’s work is that exemplification, then I suggest my first two buts get corroborated. Not for nothing, but it *is* hordes of adults who are celebrating the greatness of Stan Lee. 

So a counter to your reading of Maher’s logic might be: a lot of adults are revering the memory of Stan Lee; his output was for kids; look at it; but adults are taking it seriously; they shouldn’t; it’s crude stuff; it’s for kids; the general public is dumb; hence Trump. 

Me, subject to my forced agnosticism, I’m on board that reading of his reasoning but I get off at the station before “the general public is dumb” etc. Those two points remind me why I can’t stand Maher.

I’m not likely going to listen to that Bloggingheads—though I might give it a try for a few minutes—but your last paragraph raises another but-like point. The thrust of the answer shouldn’t be to give in to the dumbing of ourselves down but rather should be to keep trying to offer, in education particularly, better alternatives to the dumbness. Less of the low brow comics and more of, say, higher brow comedy, even if not the highest.