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March 4, 2019. Recently, Justices Thomas and Gorsuch have been carrying Scalia's theory to the edge of a precipice. They would reverse many decades of precedent to restore retroactively the view that the Constitution as a set of values is a straight-jacket applied to our times by generations long dead and buried. Evidently, they would rule that some well established interpretations of the 14th Amendment were mistaken and should be overruled. In my opinion, their views in that regard are both silly and dangerous. Every generation of Americans leaves its mark on the Constitution, whether by formal amendment or by principled interpretation. And that is the way it should be. We are no longer governed by the slave-trading generation. We are no longer governed by the generations that institutionalized racism or the intolerance of dissent (the lesson of New York Times v Sullivan, a decision that Justrice Thomas would overrule). The structure of government created by the Constitution is sacrosanct. Within that structure, democratic processes are permitted to influence the progress of social values over time.
09-30-2018 - Whether or not you agree with Justice Scalia's approach to interpreting the constitution, it is worth listening to him explain it. Whatever happens with the Kavanaugh nomination, we are likely in any administration influenced by the Federalist Society to see the nomination of justices who share the Scalia philosophy.
9-15-2018. Grand County, Colorado. The aspen leaves are bright gold against a clear cobalt sky. It is autumn in the high country. Seasonal change is a good time for reflection. The topic of professionalism is on my mind. During my 36 years of practice, no topic has consumed the organized bar as much as the need for more civility and professionalism among lawyers. Nothing has changed much, of course, except that modern judges have no tolerance for annoyances their predecessors might have let slide. And in recent years, various blue ribbon committees have sucked all the air out of the concept with overwrought definitions of what "professionalism" means, pro bono advocatorum. In the end, one can only discipline one's own behaviors from day to day. The profession as a whole is reachable but generally incorrigible and libertarian by nature. Most lawyers are civil, even friendly, because boorishness is counterproductive. Other lawyers seem to thrive on personal conflict, and they can't be expected to reform themselves. Here are some attributes of the professional that come readily to mind, to which we can aspire daily even if we can't achieve them as a way of being in the world: we listen more than speak; we don't lose control of our temper; we don't lose sight of our client's goals; we don't make specious arguments; we don't lie or exaggerate; we return communications in a timely manner; we treat clients with dignity and colleagues with respect. This only scratches an indefinable surface. Like the changing season, perhaps, we feel the tug of new and old awarenesses. Peace out.