Oregon State Bar Bulletin — MAY 2008

Poking at the Spaces Between
I’m one of those frustrated writers — completely convinced of my superior story telling prowess with absolutely no tangible proof to substantiate that belief. For years I’ve been outlining a story that changes from a novel to a screenplay and back every time one appears to be the easier route to fame and fortune.

The story is about a lawyer (surprise) who was recently promoted to partner. Our protagonist finds himself balancing on the precipice of his now-assured future and his desire to pursue an alternate route. The storyline takes you along on a multi-day motorcycle excursion into rural America, ostensibly to clear our hero’s head. The title of this future masterpiece is "The Spaces Between."

Though my own future as a successful novelist-cum-screenwriter is unquestionably in doubt, the notion of "spaces between" has application to the topic of professionalism. The spaces to which I refer are the past, present and future. The glue that holds those spaces together is forgiveness, acceptance and commitment, respectively.

Much is made of the demise of professionalism in the law. A possible remedy is to forgive ourselves for letting it get this way, accept our current reality, and commit to individually making efforts to improve the situation from today forward. With a little effort, we can fill the spaces between now and the future with something about which we can be proud.

Are you ready to make the commitment?

Paul Burton

Thinking Too Locally, Perhaps
I appreciated reading Dick Roy’s "Shifting to a Sustainable Future" in the February/March 2008 Bar Bulletin. I know Dick and applaud the educational work he does in support of sustainability. However, since lawyers are well educated, often influential, and are quick studies, I believe they should also be told the blunt truth about the environment and sustainability. That truth is that we are well beyond the point where the kinds of individual sustainability choices Dick references are likely to be of any consequence.

The problem of achieving sustainability is systemic. It won’t be addressed by ad hoc choices about how many showers we take, whether we carry ceramic cups for our coffee (only organic and shade grown of course) or whether we fly or drive on a vacation. To achieve anything close to sustainability, we will need extraordinary leadership and fundamental structural changes throughout our economy and globally. The prospect is frankly not good. Population increases, development pressures, energy consumption patterns and food production practices are working steadily and rapidly against us. But many experts believe the situation is not yet hopeless.

So, in addition to taking individual actions as suggested by Dick, I’d encourage lawyers to learn more about sustainability issues support efforts to influence state and national sustainability policy, and, above all, support political candidates committed firmly to sustainability.

Larry Edelman

Put the Person Before the Disability
Thank you for the article on working with clients with disabilities. I write to provide links to two related items:

1) the 2006 final report issued by the Task Force on Access to State Courts for Persons with Disabilities (mentioned on page 26), which uses person-first language: www.ojd.state.or.us/osca/cpsd/courtimprovement/access/documents/

2) Or Laws 2007, ch 70 (SB 83), revising state laws to use person-first language: http://www.leg.state.or.us/07reg/measpdf/sb0001.dir/sb0083.en.pdf

I encourage you and Bulletin authors and readers to use language that puts the person before the disability, even if that does require using a preposition, contrary to some very respected advice on writing plain English. I participated in the task force; we all learned lessons about dignity and the difference that person-first language makes.

Nori J. McCann Cross

The Branch That Would Be King
I trust — or at least expect — that I am not alone in my dismay at a certain viewpoint that has now appeared in a couple of Oregon Court of Appeals matters. On April 2, 2008, an opinion for the court impliedly presumed that some unmentioned constitutional authority ought to endow the judiciary — a distinctly non-lawmaking entity — with the capacity to re-author the "meaning" of words put to paper by the legislature — the singular institution endowed by the Oregon Constitution with the gift of lawmaking. Standing alone, the event would yield less disturbance than a butterfly tripping over a seismometer.

But that perspective happens to mirror some remarks in a Nov. 26, 2003, concurring opinion that likewise presumed that some unmentioned constitutional authority ought to endow the judiciary with the innate capacity to alter the meaning of words authored, in that instance, by the framers of the Oregon Constitution in order to … well, … re-author those words to attain a different "meaning." In the first instance, one’s subjective belief that a certain result might qualify as "absurd" would apparently suffice for super-editorialization, while in the second instance one’s similarly subjective (not to mention unarticulated) perception of "contemporary legal (and moral) principles" would serve to re-write constitutional text — text penned by the entity that created, and thus rendered subordinate, the ersatz re-writer.

Somewhere, somehow, some constitutional text that I cannot locate must bless a decidedly non-lawmaking entity with a preemptive competence to revise the meaning of words wielded by lawmaking authors of equal or greater stature (viz., the legislature and a constitutional convention, respectively), and, in effect, to ordain new "meaning" via fiat. Why, then, have mechanisms long existed for legislatures and constitutional conventions to revise their own products? But, more importantly, has "meaning" become such a transitory concept? Do words any longer bear "meaning"? Well, of course they do; indeed, everything in this letter bears a meaning that will not change regardless of the reader’s inclination to label it "absurd."

Skipping past the hypocrisy that supporters of judicial re-writes abide by the notion that their writings on the subject will ever change in "meaning," suffice it to say that, if the Oregon Constitution needs a revision, the document itself informs the citizenry how to do so — and nowhere in that mechanism does the word "judiciary" surface. Similarly, if a legislative work product seems "absurd" or ill-conceived (and indeed some does), then, again, the author can well do so — if indeed, the author deems any change warranted in the first place. Yet, again, no one has ever witnessed the judiciary entity marching en masse to the state capitol to engineer a revision of text that can only occur within that building.

And for all you folks whose thinking on the subject extends no further than a reflexive reference to the Lewis Carroll-like Marbury v. Madison concoction (at which I do marvel, I must confess), suffice it to say that, first of all, the above discussion does not implicate anything having to do with "judicial review," and second of all, even if, under the rubric of "judicial review," a court opted to, say, re-order the days of the week to conform to "contemporary" thinking, or to render the ordering less "absurd," that would never make it so.

Barry Adamson
Lake Oswego

return to top
return to Table of Contents