Fight for the Future

Fight for the Future

This is worth a gander–make some of your Internet time well-spent, today!


On Human Divinity

Religion: an organized expression of ideas relating to matters of the human quest for peace and happiness, whether in this life or another one. Usually involves a literary canon considered holy/enlightened texts as well as some kind of hierarchical power structure based on nearness to God/enlightenment. Foremost in my experience is the Church of Jesus Christ of Latter-

Smith's later theology described Jesus and God...

(Photo credit: Wikipedia)

Day Saints, my own religion until age 14.

God: a divine being, objectively better than humanity in some way. Often acts as a paternalist force, offering reward and punishment as teaching tools for proper human behavior.

Nearness to God: the quality of bringing oneself in line with the values and wishes of the divine. The ultimate state of happiness available to human creatures.

Faith: the belief in a being, a concept, or a structure of the universe even in the absence of evidence. Often considered an essential part of religion.

Enlightenment or Spirituality: the quality of bringing oneself in line with values determined to produce happiness, even in the absence of any divine power dictating those values. Often offered as a juxtaposition to the nearness to God of Judao-Christian religions.

Sin: the wrong; an act or a state of being in contravention of the articulated values of the religion.

Mercy: the capability of kindness, even toward people who do not and have not tried to deserve it.

Forgiveness: the act of setting aside pain and anger from being wronged in order to give the wrongdoer the gift of a new beginning; the quality of seeing an individual’s worth despite full knowledge of their faults and mistakes; the expression of unconditional love.

Redemption: the wrongdoer’s attempt to earn forgiveness; also, the achievement of forgiveness.

Sacrifice: conduct that is the expression of forgiveness. Sacrifice is putting a part of ones own desires aside because the value of the  person benefitting from the sacrifice outweighs the value of that desire. I think sacrifice is an integral part of both what the wrongdoer does on her quest for redemption and what the forgiver does when she offers that gift.

I have a complicated relationship with the concepts I’ve described above. I am sure that these ideas mean something else to other people–I’ve only transcribed what they mean to me. I was raised LDS (commonly known as Mormon), and though I’ve since left the Church I continue to believe that my upbringing had a positive effect on me. For years after I left, I eschewed every indication of spirituality, until two or three years ago I found myself increasingly attracted to stories and music about redemption and forgiveness. (Examples here, here, here, and here.)

I wondered if this attraction I felt suggested a need for religion in my life. I thought about it for a long time. I”ve worked hard to craft an ethical vocabulary that does not include divinity. I wholly believe it is possible to be a good person and to achieve harmony and peace in this life, if you work at it. In the end, I came to the conclusion that many of the concepts wrapped up in religion–redemption, sacrifice, mercy, forgiveness–do not need to be entangled with the concept of faith or divinity. You’ll notice that while some of the concepts I described above are interdependent on the essentially faith-based concepts of God and Religion, the concepts of Mercy, Sin, Forgiveness, and Redemption are not. I believe that as people we are capable of little and large sin. We are also capable of showing each other forgiveness and mercy. We are capable of earning and offering redemption.

Perhaps we identify so much with religion because it embodies these principles, which we must practice in order to survive as a human community. Perhaps I’m wrong about faith and my vocabulary is a pale comparison to true spirituality that is dependent on the divine. But isn’t it a beautiful dream, that we can create divinity in our own lives through choices we are eminently, humanly capable of making? I offer no judgment whatsoever on how people should internalize and practice the concepts of mercy, forgiveness, and redemption…just so long as you do practice them somehow.

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Big Data & the Future of Critical Thinking

It’s 3:58 on a Friday, I’m having a pretty bad week, and can’t muster the wherewithal to do more work right now. So I am going to sit here with my Joy tea (need some Joy in my life) and my shiny new blog and write about something that I find fascinating: data collection and targeted perspective in the information age. Inspired by the comment thread to this brilliant post.

parents

parents (Photo credit: goto10)

There’s always a lot of talk about how important it is to guard your information online. There are so many people you’d want to keep it from–thieves, the government, retailers, your boss, your parents… Plus, I’m a technologically sophisticated, legally trained individual and I know full well the myriad dangers of putting too much out there. And yet, I opt in to almost every data collection scheme I come across.

Don’t get me wrong, I don’t go looking for data grabbers that have nothing to do with me otherwise. But if I enjoy a service, I virtually always permit them to share my data anonymously to “make their service better.”  Think Hulu,  Amazon Kindle Store. Netflix. Google products. Phone apps. Et cetera and ad nauseam. I love that technology is advancing to the point where I am increasingly confronted with only the things I enjoy seeing. It’s beautiful! Fun! Interesting! Gratifying! Why shouldn’t I take advantage of what targeted services can do for me? This guy gets me.

Well, there are zillions of reasons why I shouldn’t.

For one thing, how can you guarantee your data is anonymous when it leaves your grasp (or that it will stay so?) You can’t. With enough data, and enough computer power, virtually any set can be traced back to its “anonymous” donor–recently scientists released a study showing they could personally identify anonymous DNA donors with the power of the net.

And another thing, do you know what your data even says about you? Trust me, you don’t. The level of information that a third party with swaths of your prior behaviors can predict about your future behaviors is staggering. We have many laws (and in the U.S. a handy Bill of Rights) to help protect you from the government extrapolating about you based on this information. But what is to keep a multinational corporation from determining your future based on your past? Nothing. Chances are, most of the online resources you use track every single click and keystroke you do–and sometimes they might release it.

In today's society, there's a price to pay for...

In today’s society, there’s a price to pay for critical thinking (Photo credit: cesarastudillo)

There’s also the more philosophical argument–that when you permit yourself to be confronted with only the things you already enjoy, you stunt your personal growth. You fail to encourage critical thinking or creative collaboration with differing perspectives. You splinter your universe into a tiny niche where you and all of your friends are the most important, most correct, most infallible possible patrons. Is this a word we want to live in? Not in the long term. This is why critical thinking is, to my mind, the most powerful skill you can learn. It requires affirmative practice and daily tuning, but once you have it, it won’t matter how “targeted” an argument anyone can throw at you. You’ll be able to evaluate it effectively and make an informed decision about its impact on your life.

I’m still going to opt-in to targeted data collection schemes for services I use. But I hope that I can continue to stretch my critical thinking muscles and not let them atrophy. It’s the best available weapon against the gorgeous and terrifying future.

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Cleo

When I think back to my first serious attempts at writing, I wasn’t sitting down and writing a poem because I thought that I would get published; I was doing it because of that abstract, inexplicable urge to create, and the urge to find self-expression in this act of creation. Writing was the outlet that I would return to again and again to explain my life to myself, to take the maelstrom of ideas and emotions and create something ordered and tangible.

This freshly pressed post from Anna Spanos is great. I only just discovered her blog and my thoughts here are my own interpretations–they might be totally inaccurate. But then, I believe readers should be empowered to draw their own lessons, regardless of author intent, so I will forge blindly ahead.

For Spanos, the forced prioritization of busy mother/wife/middle-management-hood has had a counterintuitively freeing effect on her writing. As she eloquently puts it, she has by necessity eliminated the time she spent on less important things. She is no longer “handcuffed” to the time and effort spent considering the critical reception of her work. She has, at least momentarily, escaped the egoism that weighed down her art back when her art was the thing that defined her most.

Spanos’ post illuminates a tension in my own blogging project. An essential part of starting this blog was the desire to anchor myself back into my creativity. I started writing when I was in junior high and kept writing, prolifically, and all for the “inexplicable urge to create,” for years. Law school stopped all that. I like being an attorney and I find legal research and writing fulfilling in a way that many of my peers find bizarre, but it is the antithesis of the creativity I engaged in before law school. Law school was an oyster that treated my creative urges like a grain of sand. I know they are still there, they are still beautiful, but they are encased in an impenetrable shell at the moment.

Black pearl and its shell

Black pearl and its shell (Photo credit: Wikipedia)

My first post-law-school blog was an attempt to dive back into my creativity, but it sputtered and died within a few weeks. It felt alternately too preachy and too frivolous. In this second endeavor, I’ve tried to craft an experiment with more structure and deeper roots. There are real, positive goals that I hope to accomplish here, goals that have nothing to do with anyone but myself. Goals that have a lot to do with “tak[ing] the maelstrom of ideas and emotions and creat[ing] something ordered and tangible.” Yet writing to get in touch with my own voice feels peurile. Like my disastrously melodramatic college Xanga account. So I hope that someone out there will find value and insight in my posts, if only to  ameliorate all the navel-gazing I do here. It’s a tension between self-conscious creation to help myself or others, and the purer, painful joy of creating because there is simply nothing else I can do.

For now, I hope that practice makes more perfect. I am the converse of Cleopatra–instead of dropping my pearl in vinegar, I’m dripping vinegar, post by post, onto my pearl, in an effort to methodically dissolve the shell of four years of exclusively professional writing.

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Wish on a Full Moon

Tonight I was driving home and noticed a huge full moon hanging low in the sky. I always try to take pictures of natural phenomena like this with my cell phone, and am always wholly dissatisfied with the result. Tonight I decided to take a few moments and bring my “real” camera out in an attempt to get a better record. By the time I made it out a few miles past the city lights, the moon had shrunk, but I still managed the shot below. As I sat on the hood of my car taking photographs and messing with the settings on my camera I began thinking about poetry. I used to write a lot of poetry; I miss it. Recently Natasha Tretheway, the U.S. Poet Laureate, had an interview on NPR and it reminded me how much. I came home and composed the verse below. Image and poem copyrighted by me, please ask permission before use.

Full Moon 01-27-13 8:00 PM

Wish on a Full Moon

Suddenly I recognize:

I don’t know the moon at all.

A wan reflected pall is the only face I’ve seen.

Was she understood by those who walked, in Teflon, on her skin?

Or shrouded still in mirrored shine that never entered in?

For uncounted generations, how like her we were.

Seen from space only by the absence or echo of other light.

But mankind remade the Earth, electrified and

independently visible through our fearless invention.

And as I come now into my own progress,

I hope for courage

to practice singularity over semblance,

to pass through this world showing only my own face.

 

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POW…ell: Another Substantive Declaration

I complained about the Oklahoma Supreme Court issuing an opinion declaring the standard of review a “substantive right” without explanation here. The Court recently came out with another Workers’ Compensation opinion which declares a different provision substantive, but it does offer a little bit more explanation: 

“We find that 85 O.S. 2011 § 329(B), which allows the trial court to appoint an IME at any time, is a substantive change in the law that only applies to injuries occurring on or after August 26, 2011, the effective date of the statute….

 

[T]he only question before this Court is whether the statute affects the substantive rights of the parties. That is, does the statute increase or diminish the amount of recoverable compensation or alter the elements of the claim or defense by imposition of new conditions? Cole v. Silverado Foods, Inc., 2003 OK 81, ¶ 15, 78 P.3d 542, 548. If the answer to that question is yes, then our case law mandates prospective application of the law regardless of the statutory language. Ellis, 2006 OK 81, ¶ 13, 148 P.3d at 877 (citing Cole, 2003 OK 81, ¶ 8, 78 P.3d at 546).

 

In Ellis, 2006 OK 81, ¶ 1, 148 P.3d at 875, the 2001 amendment at issue imposed liability on the last of successive employers to expose a claimant to cumulative trauma. Id. ¶ 7, 148 P.3d at 876. Before the 2001 amendment, the law allowed apportionment of liability between successive insurers in cumulative trauma cases. Id. In that case we held that the right to compensation and the obligation to pay such benefits became vested and fixed by law at the time of the claimant’s injury and such rights could not be affected by after-enacted legislation. Id. ¶ 14, 148 P.3d at 877.

 

Like in Ellis, the language in § 329 substantively alters the rights of the parties because it requires employers to pay for medical services in circumstances not previously recognized, namely, before compensability has been determined. 85 O.S. 2011 § 329(B) only applies to injuries occurring on or after August 26, 2011, the statute’s effective date, even though the statutory language directs otherwise. See Williams Co. v. Dunkelgod, 2012 OK 96, ¶ 18, ___P.3d___ (determining that the Legislature’s use of the language “regardless of the date of injury” is meaningless if such language substantively alters the rights of one or both parties).”

Hillcrest Medical Center v. Powell, 2013 OK 1, prgs. 0, 8-10. So, one possible standard for substantive changes is whether the new statute requires the employer to “pay for medical services in circumstances not previously recognized, namely before compensability is determined.” It is my experience that employers and insurance companies have always frequently paid for Independent Medical Examiners prior to compensability determination, sometimes by agreement and sometimes by Order of the Court. But, my experience is limited, and I have not done any research on that point…I could be mistaken. At least now we know a little bit more about the Court’s view on the procedural/substantive distinction.


Dunkelbaaaaad.

This is the first of what I hope will be a growing number of posts on this site: brief analysis on current points of law. The topic in question here is the retrospective application of newly enacted statutes to cases begun prior to the effective date of those statutes. The jurisdiction is Oklahoma.

The Supreme Court of Oklahoma, in an as-yet-unpublished opinion (Williams Companies Inc. v. Dunkelgood, 2012 OK 96), held that applying 85 O.S. sec. 340(D) (eff. 8/26/11) to a case accruing before the effective date “would allow the unconstitutional abrogation of an accrued right.” Williams Companies Inc., 2012 OK 96, par. 18. The accrued right at issue is the standard of review. The Court explained that “[g]enerally, a statute or its amendments will have only prospective effect unless it clearly provides otherwise.” Id. But the Court ignores the explicit language in 85 O.S. sec. 340(D), which renders the provision applicable “regardless of the date of injury.” If that language does not “clearly provide otherwise,” I’m not sure what does.

The Court explains “the standard of review…is determined as of the date of injury and is a substantive right which remains unaffected by later-enacted legislation, despite statutory language to the contrary.” Williams Companies Inc., 2012 OK 96, par. 18. The Court proclaims the standard of review a substantive right without explaining why this might be so. Moreover, the Court appears to have ignored relevant case law on this account: “Because section 3.6(C) is an amendment ‘in the nature of a directive’ to the appellate courts rather than an amendment affecting ‘the substance’ of a workers’ compensation claim, we find it is a change in the ‘mode of procedure’ subject to retrospective application.'” Mobile Mini, Inc. v. Dugger, 2011 OK CIV APP 31, par. 25. Mobile Mini is a Court of Appeals case and is not bindingly precedential, but it is persuasive and directly on point.  It is also directly contradicted by the Williams Companies opinion and to my mind WiIliams Companies ought to explicitly overrule it.

Could it be that no one brought Mobile Mini to the Court’s attention? It seems doubtful, but Williams Companies cites plenary other case law on the subject of retrospective application of workers’ compensation statutes (in Oklahoma we reform workers’ compensation a lot–something like five comprehensive overhauls in ten years). Why leave Mobile Mini out?

The procedural/substantive distinction is extremely significant in my line of work, where I argue for or against retrospective application of the most current statute every other day. I wish the Supreme Court of Oklahoma hadn’t played so fast and loose with declaring the standard of review “substantive.” I am virtually certain to be haunted by the lack of explanation here in the near future. I also wish the Supreme Court had tied up the loose end of Mobile Mini. It simply isn’t very persuasive to argue that a case has been overruled by not being mentioned when directly on point–but if it hasn’t been overruled, what is its status?