Joel Jacobsen

Do I remind you of Ed Gein?  How about his fictionalized counterpart, Norman Bates?  Yup, that's me in the film clip, if you follow the link. 

There's something echt-lawyerish, getting right to something basic about the profession, about blogger Mark Bennett comparing me to a necrophiliac murderer.  Do accountants do that to each other?  Engineers?  Dentists?  Opera singers?  Okay, sopranos, maybe, but mezzos?  

The thing I did that reminded Mark of knifing women in the shower occurred in post 295.  In case you avoided getting spattered the first time round, I'll recap: I mentioned in passing that an ABA-sponsored poll found that 73% of Americans believe lawyers "spend too much time finding technicalities to get criminals released."  (Gruesome, ain't it?)  My point was that PR efforts by the state bar would never convince all those people that they're wrong, because they're right, in part: some lawyers do that.

Mark's objection was to the pejorative connotations of that word "technicality,"  which he wittily describes as "a rule that leads to the wrong result."   He makes another good point: "Criminal law is not about 'right and wrong;' it's about rules."

But that - of course - is what the poll respondents were saying.  Some people would like to have a criminal justice system that has more to do with right and wrong - and I bet a lot of them wouldn't even use scare quotes.

So what we have is a dispute about whether the word "technicalities" ought in all conscience to be replaced by the word "rules."  Fair enough.  But Norman Bates?  Would it even occur to anyone in any other profession to make such a comparison in order to make such a tiny point? 

Well, it's not a tiny point - if you see "technicalities" not as a word with certain connotations but as the symbolic expression of a whole set of crypto-fascist attitudes.   And that's what lawyers do, isn't it?  We use emotional rhetoric to turn a small reality into the symbol of something huge and important, and then ask the jury / judge / readers of the morning newspaper to respond to the symbol and ignore the reality.  

Mark's post ends with:

I'd like to see Joel, who is determined to "engage not just with the expressions of judicial power, but with the assumptions on which those expressions rest," engage with the assumptions on which his post rests.

By "assumptions," Mark apparently means the hypocrisy evident in the fact that I (a) quoted in passing (b) without comment (c) an American Bar Association survey (d) that used a word (e) that makes Mark see red.  At the risk of being tactlessly blunt, I'm not altogether certain "assumptions" is quite the mot juste.