The Seven Commandments Click HERE to Bring Up Full Post

Most people in the Western Civilization are familiar with the "Ten Commandments" as a central expression of the moral and theological beliefs of Jews and Christians of various denominations. There are three separate enumerations of these Commandments within the books of Exodus and Deuteronomy, as well as sharply differing traditions about how the commandments should be numbered between Jews, Catholics, Protestants and Orthodox Christians. Many of the current discussions about public postings of one or another versions of the Ten Commandments in U.S. politics revolve around the centrality of these Commandments not only to the religious traditions of American civilizations, but also to the development of the legal traditions of the West. The issue has, of course, raised passionate debate in many corners of American politics.

Maryland has thus far been spared most of the discussions of this issue. Maryland is a "blue" state, notwithstanding some political agitation this General Assembly session on matters such as constitutional prohibitions against gay marriage.

It might be of interest to note that, according to Jewish teaching, the Ten Commandments as such (in any of their permutations) do not apply to non-Jews. Jewish teaching holds that all humanity is descended from Noah and that Noah and G-d made an eternal covenant under which Noah and his descendants would uphold basic terms of morality and G-d would refrain from wiping humanity out again by a flood or otherwise.

According to Jewish teaching, the Noahide covenant still governs all the Children of Noah who are not descendants of Abraham, with whom G-d made a separate covenant. Jewish law holds that the terms of the covenant with Noah are that humanity must refrain from:

murder

theft

idolatry

eating flesh "with the life therein" (living flesh or blood, by most interpretations)

blasphemy

sexual immorality

and must further positively establish

courts of justice.

These laws do not appear in a neat order in the Hebrew Bible, but are considered to be logically derived from certain events in the life of Noah and earlier figures, such as Cain, Adam and others. These seven laws are the "laws of Noah" or the "Seven Commandments."

The Dutch medieval legal scholar Grotius commented on these Noachide laws as the basis for all general laws in moral society. Likewise, the 102nd Congress, interestingly enough, passed P.L. 102-14, 102nd Congress recognizing the value of the Seven Commandments to the moral and social welfare of American society.

Since Jews do not believe that the Sabbath applies to non-Jews, for example, and since Christians arguably don't believe in the Jewish Sabbath either (either because most Christians rejected the Sabbath day and replaced it with Sunday, or reject the Jewish interpretation of that day), and since Congress has already endorsed the traditional Jewish interpretation of those commandments, and since legal scholars have recognized the value of those Seven Commandments, isn't the whole debate about the Ten Commandments a bit misplaced?

If one actually looks carefully at the Ten Commandments, and compares them to the Seven Commandments, it appears that the Seven Commandments more easily form a legal code for a diverse society. "Coveting" is a bit hard to prosecute, although probably not much more than an inchoate crime such as an attempt or a conspiracy. I am informed that "coveting" in Hebrew refers not merely to "wanting" but more along the lines of "setting about" or "attempting to take." The prohibitions against graven images are fairly narrow, whereas a general prohibition against idolatry and blasphemy seems, well, more comprehensive. (It is understood by Jewish law that all Jews must follow the Seven Commandments, but many other commandments in Jewish law supercede the requirements of Noachide laws, e.g. kosher laws prohibit "living flesh" and a whole lot more.")

The strongest argument, in the Crab's view, against posting the Ten Commandments, the Seven Commandments or any other religious document in a courthouse is that a courthouse is a very unholy place; it is on the extreme opposite end of holiness from the Ark of the Covenant, on the same order as an outhouse. A courthouse is where laws passed by a miserable compromise in the General Assembly and signed after horsetrading by the Governor get enforced through plea bargains and technical gamesmanship between a tired prosecutor and a tired defense attorney, all before a judge whose appointment to the bench was, likely, a political compromise by the General Assembly, the Governor, Bar Association leaders or all of the above. Compromise is good and prudent, but it is not holy. Moses and Noah did not compromise, and neither did the G-d who spoke to them. To post either set of commandments in, say, traffic court in the District Court of Maryland is to take G-d's name in vain, to blaspheme, in violation of the very commandments themselves, whichever set one believes in.

Personal Reflections from the Crab Click HERE to Bring Up Full Post

The Crab is 35, and will turn 36 in about a week. Life got hard, old, conservative at 35. The Crab really became a father at 35; oh little Sam was born when the Crab was 33, but the serious business of fatherhood hit home more explicitly in the last year.

During the last year, the Crab has filed many motions, read a lot of discovery, handled a fairly sophisticated docket, won and lost a lot of cases, made some professional mistakes, became a better lawyer (maybe), better at handling a docket - paperflow and administration being always for the Crab the most challenging part of law practice. Yet not a damn bit of it matters compared with the awesome reality of being a father.

Even if I got fired, sanctioned, sued, disbarred and jailed, I would still have to come through as a father. Even if I got paralyzed, I would have to feed my son. Next week, the Crab is going up against a well-respected prosecutor who uses a wheelchair, feeds his family without fail and works out at his gym more faithfully than the Crab. Something to think about.

35 was a good year in many ways. Difficult, but good. Sad, but also good. Perspective-changing. I look at the young attorneys in my office as children - not because they are new at practicing, but because they were in the 4th grade when I began studies at Princeton University, because they do not have the north star of child care duties to guide and define their day and their decade, because their salaries support "lifestyles" - a repulsive word for a repulsive concept - rather than absolute, non-negotiable obligations.

I think of my Amish counterpart 65 miles from here in Lancaster County, Pennsylvania. He is not likely to read this blog, for reasons obvious to those familiar with Amish values and culture. He probably has four, maybe five children by age 35. He works outside in the cold in February, because his animals will not take care of themselves, milk themselves, feed themselves. His farming work and his faith as a Christian in the Anabaptist tradition define most of his activities outside the home. I am neither a farmer nor an Anabaptist. Because he must feed and clothe his children, however, he and I have more in common than either of us do with any single person free of family responsibilities. Compared to a single person, every responsible Dad is, in a sense, an Amish farmer.

Our son appears developmentally delayed. We are not jumping the gun or prejudging anything, but it appears that way. Sam may be autistic; he may be delayed in some less profound way; he may be fine; we do not know and neither do the excellent Baltimore County DSS professionals who have been working with him during the past year. We may be taking him to Kennedy Krieger for additional examination in the near future. We don't know how we can best help our son. I mention this to elicit any ideas, contacts or resources that any Crablaw reader might know about; would be most grateful for your insights.

My wife will be giving birth to our second child next month, if all goes as planned and hoped, two weeks after my birthday. As I grow officially older next month, maybe amidst all the crying, lost sleep, rescheduled work duties, aiding my lovely bride in healing from a C-section, maybe I will remember how lucky I am to have made it this far.

Recommended Blog Click HERE to Bring Up Full Post

This simple blog has a lot of short pieces on various articles on Maryland law. The author is a law librarian at a medium-sized law firm downtown; well maintained, far in excess of my own weekly blog. Interesting read from a very diligent law librarian.

Ethnic Diversity Click HERE to Bring Up Full Post

It is hard to speak neutrally, "objectively", about ethnic and cultural identity. It is like asking someone to evaluate neutrally all languages to identify the best; no language is a good as the language one learns as a child. Anyone who speaks any languages starts out speaking a particular language; even multilingual Europeans start out speaking one language.

This point was brought home to the Crab recently during a conversation with an attorney acquaintance who expressed certain resentments about Black identity and pride in historically Black Bar Associations and elsewhere, urging that Black attorneys should not "segregate" themselves and should join the "mainstream."

The Crab does not identify as "white." Most people including most U.S. Census workers would look at the Crab and think "white." The Crab does not claim to be free of "prejudice" - the Crab is very proud of some of his prejudices - but simply sees no value in "whiteness." The Crab finds it hard to understand what unique cultural traits unite himself, a "white" Bible Belt Oklahoman, a "white" Vermont farmer, an Irish Catholic "white" priest in Chicago and, say, Barbra Streisand, while excluding "non-whites" however defined.

"Whiteness" as such is fake, weak, false to the way that "white" people really identify themselves in the U.S. There is nothing distinct and uniform about whiteness other than a heritage as full citizens of the U.S. under American apartheid. Ironically, one of the tools used to oppress some European ethnic groups was to attempt to "de-white" them. In the 1800's, Hungarians, Irish, Italians, Greeks and, perhaps ironically, Swedes were sometimes denied status as "white" in some contexts in order to oppress them socially, legally or politically. The issue is not whether such people "should be white" or "are white" but, rather, what is whiteness?

In apartheid South Africa, prosperous Japanese immigrants gained "white" status while Chinese immigrants did not. The concept of "whiteness" plays out in other strange ways in Brazil, Haiti and other countries - strange to an American accustomed to the American definition of "whiteness."

Black identity in the U.S. is a very different thing. Black culture developed its own markers of cultural identity more or less distinct from that of non-Blacks. Most "white" people in American do not know many of the cultural traditions of Black Americans; they can tell you how Christmas is celebrated in Sweden, but not how weddings are done in Harlem. Black culture, taken as a whole in literature, music, other performing arts, etc., through the relatively high-brow culture of the Harlem Renaissance has swept the world. Black identity is exceptionally strong and many American Blacks see themselves as heirs to a cultural and political struggle for success, pride and liberty. In the Crab's view, justifiably so.

In the Crab's view, Black identity is real, natural - the genuine article. Black children grow up knowing they are Black and learning from their grandparents what being Black has meant in this country. White identity is an artificial currency. Most "whites" don't really identify with other "whites" except for some fleeting political gain. Oh sure, David Duke is pretty damn sure he's White, but he has been a special case for a long time.

Most "white" Americans identify first as something else - either an "ethnic" identity like Irish, or by religion or both, or maybe by region (Southerners, Yankees), or maybe politically. But does any conservative "white" American feel an common ethnic or cultural identity with Ted Kennedy or Howard Dean? Do "white" Southerners identify with Barbra Streisand? Do Minnesotan Lutherans identify ethnically with televangelist Pat Robertson in some special way? Do Seattle coffee-headed grungers look at some randomly chosen "white" Hollywood actor or state governor and exclaim, "My people!!!!"

White identity is fake, astroturf, rubles. Black identity is grassroots, real, "green money." The question is, should "whites" or anyone else get to define the boundaries and the "citizenship" of Black identity for self-identified Blacks? You can probably guess the Crab's answer.

As far as joining the "mainstream" - why? Why exactly? Is mainstream America really such a great model? America is large, rich, powerful - but are its values admirable? If Americans were such a great people, explain Jerry Springer and trash TV. Explain millions of abortions every year when condoms are given away for free. Explain why we are so damn spoiled. Why are we both so rich and so culturally ignorant of the world? Should Black Americans really want to develop their cultural and personal values on the U.S. "white" model? Are "whites" really worthy of wholesale emulation by Black Americans, as my acquaintance seemed to suggest? Or is there a lot of self-destructive stupidity to go around?

Maybe the problem with Black culture is that it has gone too mainstream. Maybe the country needs a new Malcolm X? Who knows. In any event, the Crab is not a neutral observer. But neither is anyone else, and if cultural challenges require a "neutral observer," we should hang up the hope of better understanding and expect a millennium of racial/cultural hostility and resentments.

Rules of Professional Conduct, Approved Click HERE to Bring Up Full Post

The Maryland Court of Appeals has endorsed substantially all of the proposed changes recommended from the Committee, per its recent Order. The Order goes into effect July 1, 2005, replacing many of the current Rules of Professional Conduct.

Two new terms permeate the new Rules.

"Confirmed in writing" is the new standard required to substantiate client consent in many circumstances. It means written consent given by the client or a confirmatory letter or other writing following a verbal communication sent to the client.

"Informed consent" refers to the agreement by a client to a course of conduct after the lawyer has communicated adequate information and explanation as to material risks and reasonably available alternatives to that proposed or discussed course of conduct.

The Crab anticipates major activity on these two terms in the coming 18 months from Bar Counsel and the Court of Appeals. First, it is in the interest of the AGC and Bar generally that the Court of Appeals create some case law to substantiate these new requirements. Second, the terms appear in many of the new Rules, providing many opportunities for Bar Counsel to craft disciplinary charges under the Rules defining these terms.

Third and perhaps most importantly, these new terms represent a very deliberate choice, after extensive review of the Court of Appeals to change the professional rules of the road for the lawyers licensed under its authority. The Court of Appeals undoubtedly wants to see this new rule enforced and enforced strictly. The fact that the Court has (wisely) given the Bar many months to get ready for these rules suggests that the Court intends not to tolerate ignorance of the Rules as an excuse.

An excellent summary of the Rules changes generally is available here in the December 2004 MSBA Bar Bulletin.

The Kevin Lindsey Case, Part II. Click HERE to Bring Up Full Post

I am informed that Kevin Lindsey has sued his accusers for millions of dollars. If I receive permission from both Defendants and their respective legal counsel, I will identify them here. A diligent search of the public records of Baltimore County, Maryland, would reveal their identities, but in my view they have suffered enough loss of dignity in this situation. While I do not believe that a sexual abuse survivor has anything to feel ashamed about (any more than a mugging survivor), loss of dignity and privacy is an essential element of the damage inflicted.

I note that while Lindsey is free to sue his accusers, his accusers are not free to sue him under the facts underlying this case. In other words, a jury may well believe the accusers and reject Lindsey's claims, but the Maryland 3-year statute of limitations may protect Lindsey even if the jury thinks the accusations are absolutely correct. Lindsey gets a free punch at a couple of his former third-grade students, but the students may not be able to punch back under Maryland law. Ironic, and sad.

The Mallet - Max's Kosher Cafe Click HERE to Bring Up Full Post

The Crab's practice takes him to Wheaton on occasion to assist a client at an IRS examination at the Georgia Avenue IRS office. When he goes, he usually tries to sneak a falafel from Max's Kosher Cafe.

Max's isn't fancy but it maintains, among other offerings, an outstanding traditional Israeli/Middle Eastern falafel bar. If you have never ordered falafel this way, you order your falafel and take your receipt to the bar, where the falafel-tender (?) adds tomatoes, peppers, beets, marinated cauliflower or other ingredients to order.

The Crab is a hopelessly fallen-away German-Irish Catholic, and cannot comment personally on the kashrus of Max's. Max's is supervised by the Vaad Harabanim of Washington. It is a meat restaurant, i.e. no dairy whatsoever, although falafel is a vegetarian dish. It is about 10 minutes from the new 2nd Avenue District Court in Silver Spring. While the Crab is hooked on the falafel, there is a range of sandwiches and other meat-based offerings as well. The clientele is diverse, reflecting both Kosher-observant customers as well as a lunch crowd from the surrounding offices, business and a local Catholic high school. Highly recommended.

Max's Kosher Cafe
2319 University Blvd
Silver Spring, MD 20902

phone (301) 949-6297
fax (240) 290-5133