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Wednesday, August 15, 2018


“Decimate” is now used as a synonym for “wipe out” or “obliterate” but that is not its original meaning.  Two thousand years ago, when a Roman legion had performed disastrously or had disobeyed orders in battle, as an extreme punishment its soldiers were lined up and every tenth soldier was put to death – the legion was decimated.  The aim was not to obliterate the legion but to enforce strict and harsh discipline.

This is an utterly useless piece of information, but it is interesting.

Tuesday, August 14, 2018


In response to my light-hearted little post about a borrowed jug, MS made a series of three enormously knowledgeable and interesting comments.  Rather than let them languish in the comments section, where only the most devoted readers will find them, I decided to combine them into a "guest post" so that everyone will read what he/she had to say.

Here they are:

As your son will tell you, pleading in the alternative is a standard methodology that is taught in first year Civil Procedure. It can be very infuriating. In the example provided by Dean, the pleading is not as absurd as it may appear. Whether a contract has been formed, and what its terms are, can be a complex fact issue when there is no written document to memorialize what was agreed on, if anything. So the defendant is disputing whether, as a matter of law, an oral contract was formed by the words the parties exchanged; if the court determines that a contract was formed, then, he claims, the plaintiff, not the defendant, breached it.

What Giuliani is doing he may think is like pleading in the alternative, but it is not as sophisticated.

Regarding the nature of oaths, I need to expand a bit on my comment in the previous blog entry relating to alternative pleading. The example of alternative pleading regarding the contract is easily defended for the reasons I gave – whether a contract has been formed can be a complex combined factual/legal issue, particularly in the absence of a written document. However, the example of the borrowed jar is quite different. Whether a jar existed, whether it was borrowed; whether it was broken, etc., are not complex legal issues. They are solely factual allegations that are either true or false. What the imaginary pleader in the case of the jar is doing is relying on the burden of proof – it is the plaintiff, the person suing for the alleged broken jar, who, by law, has the burden of proving every factual element of his/her case. So, rather than admitting that there was a borrowed jar and that it was broken, the defendant is denying each of the elements and telling the plaintiff to prove them. Pleading in the alternative with respect to such factual allegations, however, is not without its risks. Under the federal court rules, a party that continues to deny factual allegations in the face of strong evidence that the factual allegations are accurate (e.g., a document signed by the defendant indicating s/he borrowed the jar) can be sanctioned by the court with an assortment of penalties, e.g., reimbursing the plaintiff’s attorney for the legal expenses required to prove the allegation true.

What does this have to do with what Giuliani and Trump are doing? Most of Giuliani’s double-talk relates more to factual issues, like whether the jar was borrowed, rather than combined factual/legal issues, like whether a contract was formed. Moreover, Giuliani is not (as of yet) representing Trump in a legal proceeding, ala’ Clinton’s deposition in the Paula Jones lawsuit. Remember when President Clinton was castigated for answering a question during that deposition by saying, “It depends on what the meaning of the word “is” is.”? His answer, although criticized as being “legalistic,” was a perfectly good answer to a very badly worded question by Jones’ attorney. The attorney, using the present tense, asked Clinton a question about whether he was having sexual relations with Monica Lewinsky. Clinton focused on the use of the present tense and gave a perfectly acceptable answer in a legal proceeding. From this perspective, contrary to the shouts for his impeachment, he did not commit perjury. Clinton was a defendant in a civil lawsuit; he had every right to be particular in his answers and to expect that the plaintiff’s attorney ask questions in a professionally worded manner.

What President Clinton did in the course of a deposition, however, was not an acceptable answer outside the context of a legal deposition. When addressing the American people at a news conference, for example, when acting as the President of the United States, he had an obligation not to give cunning, legalistic answers to questions. Although in that context he had not taken an oath prior to testifying, he had, as Trump has, taken an oath of office specified in Aritcle II, Sec. 1 of the Constitution to, “faithfully execute the Office of the President of the United States, and ... to the best of [his] Ability, preserve, protect and defend the Constitution of the United States.” Article II, Sec. 3 of the Constitution provides that the President “shall take Care that the Laws be faithfully executed.... .” I submit that when Giuliani, on Trump’s behalf, gives blatantly contradictory answers to factual questions – none of which relate to issues of national security – as if he is pleading in the alternative in a legal proceeding, Trump, via Giuliani, is violating that oath.

I agree that Giuliani will not be sanctioned by any court for his conduct. But that is primarily because his representation of Trump is not part of any legal proceeding. But the point I was attempting to make in my earlier comment, perhaps a bit obscurely, is that precisely because it is not related to a legal proceeding, his conduct on behalf of a mendacious President is much worse. In a legal proceeding, Giuliani’s tactical maneuvering, his “pleading in the alternative,” would, up to a point, constitute legitimate advocacy on behalf of his client. But outside the context of a legal proceeding, we have a right to expect a degree of candor, a degree of consistency, in our President that, in a legal proceeding, might be regarded as poor gamesmanship. The President should not need to recite an oath to tell the truth, with his hand on a bible, to be expected to tell the truth at a press conference. Yes, it is true, that most politicians and most presidents, bend the truth. But, as President Obama noted in his recent speech in South Africa, it used to be when a politician was caught in a lie, s/he at least would affect embarrassment. Trump, aided and abetted by Giuliani, doubles down on the lies. He lies more than any other President has done; and then he contradicts the lies, and lies about the lies. For all of Nixon’s faults, and there were many, when he declared, “The American people have the right to expect that their President is not a crook. Well, I am not a crook.” he at least recognized that there was a standard of decent behavior that the President owed the country, even though he failed to live up to that standard.

By his outlandish advocacy on behalf of Trump, Giuliani is doing serious harm to the office of the President that will have a lasting, deleterious effect on this country. Trump’s critics express legitimate concerns about the repercussions his policies will have on international relationships and voice concern that he may do something rash militarily in order to prove his manhood. But even if, hopefully, none of these worse case scenarios come to pass, the harm that Trump’s behavior is causing to the psyche of this country will last well after he is long gone. He is teaching the young people in this country that the way to be successful in life is to lie, cheat and bully your opponent. Giuliani’s contradictions in defense of Trump is legitimizing that behavior.

Monday, August 13, 2018


is that the readership is full of people who know all sorts of things really well that I do not know or about which I have only a sketchy awareness.  At its best, it is like an extended Senior Common Room conversation over sherry.


Fifty-seven years ago, I taught an upper class undergraduate course in Harvard’s General Education program called “Value and Reality in Western Society.”  Part One of the course dealt with The Problem of Loyalty in Contemporary America.  Part Two was devoted to An Analysis of Historical Materialism.  Doing some background reading for Part One, I found myself one day in the reading room of the Harvard Law School.  I can still recall the look and feel of the long library tables, at one of which I sat reading a law review article about the origins of the modern practice of having witnesses in a trial testify under oath.

The author of the article [who was, I recall, a woman, but her name is long since lost to me] explained that the oath a witness swears in court originated as what she called a conditional self-curse.  That is, the witness said, in effect, “If I should testify falsely, let God damn me to eternal hell fire.”  This conditional self-curse was taken so seriously by all involved that if a witness issued uttered it, his testimony was accepted forthwith as reliable, since it was unimaginable that anyone would call down upon himself so terrible a punishment.  The modern phrase “so help me God” uttered ritually by witnesses “taking the oath” is a compressed and fragmentary remnant of the original conditional self-curse.

This has absolutely nothing to do with anything, but I thought it was interesting.


I have a dim memory of an ancient case in the English Common Law, dating maybe from the 12th or 13th century, concerning a man who was sued for damages by a neighbor who charged that he had borrowed a jug and returned it cracked.  His defendant’s argument went something like this:  The jug does not exist; I did not borrow it; I returned it whole; and it was broken when I borrowed it.  I think this is now called “arguing in the alternative.”

It reminds me of Rudy Giuliani’s defense of Trump.


As I was reading the daily pundit summary on Daily Kos, I came across this fascinating account of the anti-Asian paranoia in the early part of the twentieth century that led eventually to the internment of Japanese-Americans during World War II.  I mention it here because it gives me the opportunity to tell once again a family story of which I am very proud.  Faithful readers of this blog will recall that my paternal grandfather, Barnet Wolff, was a leader of the Socialist Party in New York City during the first quarter of the last century.  In 1910, he went as a delegate [representing the Jewish Agitation Bureau!] to the annual Socialist Party convention in Chicago.  At the convention, I am appalled to have to report, the assembled socialists voted in favor of excluding Asian workers from the United States.  But my grandfather, God bless him, voted against the proposal.

For my account of the affair, you can read pages 22-5 of Barney’s Political Career archived at, accessible via the link at the top of this page.

Sunday, August 12, 2018


Well, if nothing else, I seem to be able to provoke a flood of comments and disputes.  Let me expand on one of the several things Jerry Fresia said, the idea of circumventing the Electoral College without a Constitutional amendment that would be nearly impossible to pull off.  The idea, for those of you not familiar with it, is this:  One by one, state legislatures pass a law instructing their Electors to vote for the candidate who wins the popular vote nationally, regardless of whether that candidate has won the popular vote in that state, these laws to take effect only when enough states have signed on to yield a majority in the Electoral College.  This is completely consonant with the Constitution.  Since the Electoral College has 538 votes, a group of states having in total one half plus one, or 270 Electoral votes, must join the effort for the system to be implemented.  Remarkably, it is already the case, as Jerry notes, that states having a total of 165 Electoral votes have passed such laws, leaving only 105 to go.

As an anarchist who believes that all state authority is illegitimate, I take a transactional view of these matters.  Since the political forces I favor currently command a popular majority nation-wide [thank you, California], and seeing as how demographic trends promise to only increase that majority, I am all in with this idea.  Note that the Democratic candidate has won the popular majority in six out of the last seven presidential elections.  Such a system would, of course, totally alter the pattern and structure of campaigning, since under it, running up the vote in California or New York would be quite as effective as fighting for wins in closely divided states.  Candidates would go where their popular votes were, not where the Electoral votes are.

As for at-large slates of Congressional candidates, I have mixed feelings about that reform.  On the one hand, it would make it possible for minority parties to gain Congressional representation.  On the other hand, it would eliminate the current direct relationship between a constituent and his or her representative.  I would be interested in hearing what folks think about the idea.