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Poetic Justice

July 13, 2017 by pgd1

Bob Dylan’s pointed and versatile lyrics are cited in judicial opinions and have earned him a Nobel Prize for literature.

The late Justice Antonin Scalia loved opera, but he also had a soft spot for Bob Dylan.  In a 2010 dissent, for instance, he chastised the majority for refusing to answer key questions in a case about sexually explicit text messages because technology was evolving so fast.

“‘The-times-they-are-a-changin’ is a feeble excuse for disregard of duty,” he wrote.

Justice Scalia was in good company.  Mr. Dylan has long been the most cited songwriter in judicial opinions, says Alex B. Long, a law professor at the University of Tennessee and the author of a 2012 study, “The Freewheelin’ Judiciary: A Bob Dylan Anthology,” published in the Fordham Urban Law Journal.1

It was a 2008 dissent from Chief Justice John G. Roberts Jr., that really opened the floodgates, Professor Long says. “Judges’ inclination to go to Dylan has actually increased in the past few years, probably as a result of Roberts’ dissent in that case,” he said.

In the dissenting opinion, Justice Roberts quoted Dylan as follows:  “When you got nothing, you’ve got nothing to lose.”

In an interview of the Chief Justice on Feb. 3 2016, Dean John F. O’Brien of New England Law, Boston, probed the matter, starting with a general question. “What was your objective in quoting Bob Dylan?” Chief Justice Roberts, a little defensively, said there was a place for a bit of levity and license in legal writing. “An intelligent layperson appreciates Bob Dylan’s poetry, if not his music,” he said. “It was, after all, in a dissent, so you have a little bit more leeway there.”

“Bob Dylan captured the whole notion behind standing,” he added. “In that case, the party didn’t have anything at stake in the case and had nothing to lose, and the case should have been thrown out on that basis.”

Legal writing forms a unique aspect of literature that is enriched by the lyrics of Bob Dylan.

by Patrick Gaffney

by Patrick Gaffney

1 This blog was taken, in part, from the writings of Adam Liptak, including “How Does It Feel, Chief Justice Roberts, to Hone a Dylan Quote?”  The New York Times.  February 22, 2016.

The Truth About Lies

June 1, 2017 by pgd1

Lying, it turns out, is something that most of us are very adept at. We lie with ease, in ways big and small, to strangers, co-workers, friends, and loved ones. Our capacity for dishonesty is as fundamental to us as our need to trust others, which ironically makes us terrible at detecting lies. Being deceitful is woven into our very fabric, so much so that it would be truthful to say that to lie is human.

The ubiquity of lying was first documented systematically by Bella DePaulo, a social psychologist at the University of California, Santa Barbara. The researchers found that the subjects lied on average one or two times a day.

“Lying is so easy compared to other ways of gaining power,” notes Sissela Bok, an ethicist at Harvard University who’s one of the most prominent thinkers on the subject. “It’s much easier to lie in order to get somebody’s money or wealth than to hit them over the head or rob a bank.”

There appears to be no agreement among psychiatrists about the relationship between mental health and lying, even though people with certain psychiatric disorders seem to exhibit specific lying behaviors. Sociopathic individuals—those diagnosed with antisocial personality disorder—tend to tell manipulative lies, while narcissists may tell falsehoods to boost their image.

Researchers have shown that we are especially prone to accepting lies that affirm our worldview. Debunking them does not demolish their power, because people assess the evidence presented to them through a framework of preexisting beliefs and prejudices, says George Lakoff, a cognitive linguist at the University of California, Berkeley. “If a fact comes in that doesn’t fit into your frame, you’ll either not notice it, or ignore it, or ridicule it, or be puzzled by it—or attack it if it’s threatening.”

Technology has opened up a new frontier for deceit, adding a 21st-century twist to the age-old conflict between our lying and trusting selves.1

by Patrick Gaffney

by Patrick Gaffney

1This blog contains excerpts from Bhattacharjee, Yudhijit,  Why We Lie: The Science Behind Our Deceptive Ways, June 2017 National Geographic  retrieved from

How to Help a Mentally Ill Person Who Stops Taking Medication

May 18, 2017 by pgd1

One recurring problem that I observe in the practice of family law is when a person who suffers from mental illness stops taking medication.  With this problem in mind, I began to search for solutions.  This is what I found:

  1. About one-third of people with schizophrenia say that they stay on medicine primarily because other people think it’s important.  For them, the influence of other people, rather than believing the medication is needed, is the key factor that promotes compliance.
  2. Persuasion is better than coercion.  Forcing someone to take medication by threats is, at best, a temporary solution that is best left for acute (emergency) situations.  It is better to try to find a way to persuade a person to take medication.
  3. Families should be genuinely sympathetic about the side effect problems and the distress they can cause.  Ignoring the side effect complaints won’t make them go away; indifference may make a person feel neglected or misunderstood.
  4. Prescribing clinicians frequently do not often detect or ask about noncompliance and are not always good at recognizing when patients stop their medication.  They may not recognize noncompliance until the person becomes psychotic and starts reacting to hallucinations.  Therefore, you cannot rely solely on a doctor’s assessment of the situation.  Nonetheless, if possible, it is important to maintain routine contact with the doctor to discuss, among other things, compliance issues.
  5. When someone relapses, it may be very hard to tell whether the biggest problem is that the medicine doesn’t work well enough (nonresponse) or the person is not taking the medication (noncompliance). It is very important to clarify the true cause of relapse because nonresponse to medicine would be handled very differently than noncompliance.1

The failure of individuals with schizophrenia and bipolar disorder to take prescribed medications can often leads to relapse of symptoms, re-hospitalizations, and homelessness.  It is important to have an awareness of the problem of mentally ill people who tend to stop taking medication.  We should apply these strategies to help these valued members of our society.

by Patrick Gafney

by Patrick Gafney

1 Weiden, Dr. Peter. “How to help someone who stops taking their medicines”.  Retrieved from:

Secrets and Their Implications

May 4, 2017 by pgd1

Keeping a secret is hard.  As a matter of professional ethics, lawyers are required to keep a client’s confidences.  These confidential communications can be understood as secrets.

In a recent study, Michael Slepian of Columbia University, addressed the question of just how much of a burden it is to possess a secret.

The researchers discovered that people reported pondering their secrets privately about twice as often as they chose to conceal them from others.

It was this private pondering, rather the actual possession of a secret, that seemed crucial to health and well being.

Those who thought little about their secrets had well being scores higher than those who thought about their secrets a lot.1

From this research one might conclude that keeping secrets is not so hard–but thinking about them is.  As lawyers, we might pause to ponder what we think about.

It is important to remember that happiness does not depend on who we are or what we have.  It solely depends on what we think.2

by Patrick Gaffney

by Patrick Gaffney

1 This blog contains excerpts from “Weighing on the Soul”. The Economist. April 22, 2017.

2 Siddhartha Gautama, aka The Buddha.

It’s Not About the Money

April 27, 2017 by pgd1

For decades, Stephen Bright has worked to provide the quality of legal representation to the powerless and impoverished that only the wealthiest clients could afford.  All the while, he has done so on a shoestring, forsaking the riches his profession could bring.

Bright is one of only a few lawyers who can say they’ve won all their arguments before the nation’s highest court.  In his three prior cases, justices overturned death sentences because of racial discrimination in the jury selection process.

Bright embodies the best the legal system has to offer, Atlanta lawyer Ed Garland said.

“He represents unselfishness, humility and deep personal love and caring for the least of those in our society,” Garland said.  “I’ve been with him in courtrooms where he was courageous and magnificently effective.  I’ve been with him in jails where he showed individual defendants the greatest of human compassion.”

Bright said he’s never regretted missing out on the lavish income he could command, given his credentials and expertise.  “I’ve never had any interest in making a lot of money,” he said.

There was never much to earn at the Southern Center.  Fifteen years ago, Bright and every other lawyer there made $30,000 a year.  Two years ago, Bright took in $38,000.  He also teaches at some of this country’s most prestigious law schools.  His pay for teaching at law schools?  It went to the Southern Center, not into his pockets.

In 1998, the American Bar Association presented its prestigious Thurgood Marshall Award to Bright.  Attending the gala were high-profile lawyers in tailored wool, designer dresses and splashy jewelry.  Bright showed up in a bargain-rack suit he’d bought in Pascagoula, Miss.

And this week, Bright will argue his fourth case before the U.S. Supreme Court, this time on behalf of Alabama death-row inmate James McWilliams.

Stephen Bright is a unique individual, who’s example stands in sharp contrast to prevailing views regarding lawyers.1

by Patrick Gaffney

by Patrick Gaffney

1 This blog was taken from:  Rankin, Bill.  April 20, 2017.  “This low-paid Atlanta lawyer is one of the best”.  Atlanta Journal Constitution.

Buck v. Bell: An Embarrassment in American Jurisprudence

April 6, 2017 by pgd1

“Three generations of imbeciles are enough.”
- Oliver Wendell Holmes

One of the worst Supreme Court decisions in history, according to journalist Adam Cohen, was the 1927 decision upholding a state’s right to forcibly sterilize a person considered unfit to procreate – unfit because they were deemed to be mentally deficient.  That decision is part of a larger chapter of American history in which the eugenics movement was behind preventing so-called mentally deficient people from procreating through not allowing them to marry, sterilizing them and segregating them in special colonies.

The Nazis borrowed some ideas from American eugenicists.  The eugenics movement also influenced the 1924 Immigration Act, which was designed in part to keep out Italians and Eastern European Jews.  Adam Cohen’s book titled Imbeciles is about the eugenics movement in the early 20th century and the Supreme Court case legalizing sterilization.

The word eugenics was actually coined by Francis Galton, who was a half-cousin of Charles Darwin, and it derived from Darwinian ideas.  The eugenicists looked at evolution and survival of the fittest as Darwin was describing it. They believed they could help nature along if they could just plan who reproduces and who doesn’t reproduce.

In Buck v. Bell, the Supreme Court upheld Virginia’s right to sterilize.  Oliver Wendell Holmes wrote the decision upholding forced sterilization.  In this one case, Holmes wrote not only that Carrie Buck should be sterilized, that the Virginia law was constitutional, but he urged America to do more eugenic sterilization.  As outrageous as this may sound, this case has never been overturned, and is still being used.

The court had an opportunity to overturn it in a 1942 case challenging the Oklahoma sterilization law and they specifically chose not to.  They struck down the Oklahoma law but on very narrow grounds.  In 2001, a sterilization was upheld by a U.S. Court of Appeals – one step below the Supreme Court – citing Buck v. Bell.1

According to Adam Cohen, even 3500 years ago, humanity understood that the highest goal of law should be to make sure that the strong do not harm the weak.  It is remarkable that Buck v. Bell could happen in a civilized society.

by Patrick Gaffney

by Patrick Gaffney

1 This blog has been taken from the transcript of “Fresh Air”.  March 24, 2017.  Retrieved from:

Understanding The Constitution

March 30, 2017 by pgd1

State Representative Dr. Julio Gonzalez, a Venice republican, has proposed legislation to allow the Florida legislature to override Florida Supreme Court decisions.  This proposed law has caused much discussion.

The Federalists Papers, No. 78, provides that the nonpolitical branch having “neither force nor will, only judgment” must have power “to declare all acts contrary to the manifest tenor of the constitution void.”  The Federalists Papers are a foundation text of constitutional interpretation and frequently cited by American jurists.  Federalists No. 78 indicates that the federal judiciary has the power to determine whether statutes are constitutional, and to find them invalid if in conflict with the Constitution.

This principle of judicial review was cemented by Chief Justice John Marshall in the foundational United States Supreme Court case of Marbury v. Madison.

Representative Gonzalez cites Thomas Jefferson in support of his legislation.  Jefferson proposed that judicial review is antithetical to republican government.

Unfortunately for Representative Gonzalez’s proposed legislation, history shows us that Thomas Jefferson and the anti-federalists lost this argument when the United States Constitution was ratified.  Representative Gonzalez, a surgeon and a lawyer, has a misplaced understanding of our Constitution as defined by the Supreme Court.

by Patrick Gaffney

by Patrick Gaffney

Marrying Outside of One’s Religion

March 16, 2017 by pgd1

In the United States, it is not uncommon for people to marry outside of their religion. However, Indonesia is one of about two dozen countries with no provision for civil marriages. Others include Israel and almost all of the Arab states.

In these countries, only unions conducted according to officially recognized religions can be registered.  In Indonesia, for example, children of unregistered unions cannot get birth certificates, without which they struggle to receive health care or schooling.

According to The Economist magazine, some couples of differing faiths, or none, go abroad for a civil ceremony.  Each year about 3,000 couples from the Middle East get married in Cyprus, which brands itself the “island of love”.

It has been suggested that part of the problem is political. Governments often fear angering politically powerful religious groups. In Lebanon, marriages and other matters of family law, such as divorce and inheritance, are left to religious courts of 18 Muslim, Christian and other sects.

Religious leaders fear that an interfaith marriage would end up with one of the partners converting.  In many places, anyone who dares to wed across religious lines faces ostracism, and perhaps violence.1

Such restrictions against the freedom to marry seem unfair to us in the West. I have witnessed many successful marriages that crossed these artificial barriers.  Who knows the ways of the human heart?

by Patrick Gaffney

by Patrick Gaffney

1 “Where Rashid and Juliet Can’t Wed”.  The Economist.  February 18, 2017, p. 52.

Chief Justice Roberts and Institutional Legitimacy

March 9, 2017 by pgd1

Chief Justice John Marshall sought to build the legitimacy of the Supreme Court by reaching unanimous decisions by ruling narrowly on issues before the Court.  According to Jeffrey Rosen, the President and CEO of the National Constitution Center, current Chief Justice John Roberts has tried to do a similar thing.  “He was going to try to persuade his colleagues to put institutional legitimacy above all . . . it is important for the Court to be perceived above politics.”

Unfortunately, it hasn’t worked that way for Roberts who in his first term had more five-four decisions than any other term, and opinions included personal attacks between justices.

Then came the Citizens United Decision that struck down the federal campaign contribution limits on corporations.  Rosen said it had been reported that Roberts favored a narrow decision, but Justice Anthony Kennedy wanted a broader decision that equated corporate speech with free speech of natural persons and, hence, striking down contribution limits.  Chief Justice Roberts had to assign the opinion to Kennedy to keep his majority, according to Rosen.

“That just shows much of Roberts’ ability to forge consensus is contingent on the judicial philosophies and inclinations of the other justices . . .”1

Roberts’ inclinations can be seen on the ruling on the Affordable Care Act, where he wrote the majority opinion striking down the individual mandate under the commerce clause of the Constitution, but upholding it as a tax.  According to Rosen, Roberts did this out of a concern for institutional legitimacy.

by Patrick Gaffney

by Patrick Gaffney

1 Blankenship, Gary.  “Rosen talks about judicial history, the Roberts’ court in modern politics.”  The Florida Bar News.  February 15, 2017.

Does a person need to be human?

March 2, 2017 by pgd1

Lawyer Steve Wise works for the Nonhuman Rights Project.  He has filed lawsuits seeking formal recognition that chimpanzees are “persons,” possessing legal rights to bodily liberty previously reserved for humans.  The lawsuits argue that personhood derives from cognitive and emotional qualities that chimpanzees, like humans, possess in abundance.

These lawsuits are the culmination of a legal strategy developed by Wise.  In his book, Though the Heavens May Fall, Wise details the legal arguments that convinced one of history’s most influential jurists, Lord Mansfield, himself a slave owner, that a runaway slave named James Somerset was a person with a right to be free.

That case and its arguments, including the legal strategy of filing a writ of habeas corpus was formative for Wise.1

In a decision in 2015, New York Supreme Court Justice Barbara Jaffe ruled that two research chimps at Stony Brook University were not covered by the writ of habeas corpus.  Jaffe did express some sympathy for the nonhuman rights project’s arguments.  For example, she stated that something does not have to be a human being to be treated like a person in the eyes of the law, noting that corporations have been considered legal persons in some cases.  She further stated “Not very long ago, only Caucasian male, property-owning citizens where entitled to the full panoply of legal rights under the United States Constitution.”   She quoted this from a 2003 gay rights case, quoting Justice Anthony Kennedy of the United States Supreme Court, “Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”2

by Patrick Gaffney

by Patrick Gaffney

1 Keim, Brandon.  “A chimp’s day in court:  inside the historic demand for nonhuman rights”.  June 6, 2013.  Retrieved from:

2 Grim, David.  “Judge rules research chimps are not ‘legal persons’”.  July 30, 2015. Retrieved from:

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