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Professional Responsibility: What is Justice? How Do We Know?

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As Douglas Wilson once said, we ought not put down a tool we’re using for a job until the job is done. One of the jobs that we Christians need to do better is to continue to press for definitions of things and for the basis of those definitions. And we have ready tools from God for pressing for such things, for they are epistemological questions, that is, questions that get to the issue of how we know what we know. Too many definitions are simply assumed, too many justifications for moral pronouncements are smuggled in by those who do not assent to those justifications. Rather, they only borrow them as one might borrow money that he doesn’t have.

We might like to think that people should be robust in their condemnation of something like, say, torture, but then we find that many are not, and we wonder why. We think that the wrongness of torture is something that people “just know.” But do they? And can a culture maintain robust condemnatory views of certain behaviors like torture if that culture can provide no robust and reliable basis for condemning such behavior? It’s all very good when we can get agreement that certain behaviors are wrong, but we will not get such agreement for long when we can find no agreement upon a strong foundation as to why it’s wrong. If torture is wrong, if racism is wrong, if oppression is wrong, if injustice is wrong, we should like to know why. Christians have a proper basis for saying why these are wrong, and we should not shrink from it: Because God says so. But if no God says so, then who is to say so? And why should we obey him or her?

These thoughts were in my mind as I read the Preamble to the American Bar Association’s Model Rules of Professional Conduct. Right out of the gate, the Preamble says to aspiring lawyers: “A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” But what is “justice,” and how does the aspiring lawyer know whether he or she will be enhancing the quality of it? Further, why does he or she have a “special responsibility” to care about justice? I have a basis for saying we do, and perhaps others do too, but I wonder if in our three years in law school we’ll get to spend much time considering the question.

The Preamble goes on to tell me that I “should seek improvement of the law.” What is the end toward which I ought to be improving it? What would count as “improvement?” Based on what authority? And if I’m not accountable to anyone higher than the ABA, why ought I to “seek to improve the law?” Again, I think I should, but I answer to Someone higher than the ABA and my own personal choices.

The Preamble continues: “A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel.” So I should care that the poor are often treated unjustly because they cannot afford justice, and I do care. But if many, or even just some, don’t care, upon what basis are we going to tell them they must? Is it enough to tell us, as the Preamble does, that we must be “guided by personal conscience and the approbation of professional peers?”

The Preamble concludes: “The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.” I heartily agree. Yet we’re asking the guild of lawyers to carry out the “special responsibilities of self-government,” a significant task, while equipping them with only the apparent justification of keeping the profession independent and serving some vague “public interest.”

These observations point up the dire need for a return of robust moral discourse and authority to our law schools and the legal profession in general, with discussions about the definitions, bases, and justifications for justice, honesty, betterment, care for the poor, and more. This is the mantle of Christian education, and I pray that many will see and respond to the need of the hour.

-D

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Written by Michael Duenes

August 30, 2012 at 9:21 pm

Professional Responsibility Based on What?

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I want to make the case, yet again, for Christian education, not only for law students, but at all levels.

As USC professor, Dallas Willard, has pointed out, the university system in America has long since jettisoned any teaching of virtue or ethics. This is because we no longer believe that having moral knowledge, not just moral opinions, but moral knowledge, is possible. This has of course infected the grade schools as well because, as our laws would have it, the government schools must be “neutral” about matters of morality, and so right and wrong cannot be learned there either. Right and wrong are simply a matter of what one can “get away with,” and judging from a lecture we heard last year at the law school about prosecutorial misconduct, it seems we’re getting away with quite a lot these days. The lawyer jokes exist for a reason.

But back to Christian education. In Christian schools, we can indeed teach ethics, robustly, for we know that ethics is grounded in the nature and character of God, that there is a divine law that rules over all man made systems of law, and which should inform man made laws. The need of the hour is for more Christians who have been trained to love and obey God’s law, who can then bring it to bear upon the legal profession, indeed, upon all professions. Yet this will not happen in secular schools. A consideration of several statements about the law and ethics will serve to show why.

Paul S. McConnell chronicles the shift in American law schools from a robust teaching of legal ethics rooted in the eternal laws of God to the teaching of ethics based on the current fads of social acceptability. See Watergate, Moral Relativism, and the Teaching of Legal Ethics. Here are some of the statements from McConnell’s article which show the transformation.

“I never used my elocution to give credit to an ill cause; to justify that which deserved blame; to justify the wicked, or condemn the righteous; to make anything appear more specious or enormous than it deserved. I never thought my profession should either necessitate a man to use his eloquence by extenuations, or aggravations, to make anything worse or better than it deserves, or could justify a man in it: to prostitute my elocution or rhetoric in such a way, I ever held to be most basely mercenary, and that it was below the worth of a man much more of a Christian to do so.” Sir Matthew Hale, English jurist, 1805.

“The present ethical standard as to both branches of the profession expects and requires truth and not trickery, simplicity and not duplicity, candor and not craftiness in the conduct of legal affairs. And generally the new type of advocacy is in form and substance perfectly simple, direct, unaffected and practical.” John A. Boyd, Legal Ethics.

“‘Tis no part of a Lawyer’s Profession to promote Injustice, or help one Man to that which belongs to another. The Laws are made to secure Property, to put an end to contests, and help those to Right that suffer Wrong. They were never design’d to entangle Matters, to perpetuate Quarrels or to enrich any Set of Men at the Damage of the Community. To engage in an ill Cause when I’m conscious ’tis so, is in plain English, to encourage a litigious Humour, to countenance a Knave; ’tis to do my best to disseize an Honest Man of his Birthright and wrest his Money or Land from him.”  Collier, Essays Upon Several Moral Subjects

The early oath lawyers took was: “I swear before God…never to counsel or maintain a cause which does not appear to be just or equitable; unless it be in defense of an accused person; never to employ knowingly, for the purpose of maintaining the causes confided in me, any means contrary to truth.”

“[T]hough few dare to be singular, even in a right cause, I am resolved to make my own, and not the conscience of others, my sole guide. What is morally wrong cannot be professionally right, however it may be sanctioned by time or custom. It is better to be right with a few, or even none, than wrong, though with a multitude.” David Hoffman, A Christian Perspective on Legal Ethics, 1981.

“An argument which does not convince yourself, may convince the judge to whom you urge it; and if it does convince him, why, then, sir you are wrong and he is right. It is his business to judge, and you are not to be confident in your own opinion that a cause is bad, but to say all that you can for your client, and then hear the judge’s opinion…A lawyer has no business with the justice or injustice of the cause which he undertakes unless his client asks his opinion, and then he is bound to give it honestly. The justice or injustice of the cause is to be decided by the judge.” Dr. Samuel Johnson

“It is a serious indictment of the form and substance of legal education that it has been dedicated to the reactionary and conservative maintenance of the status quo, rather than to a tolerance of change and proposed changes which is the very genius of democratic government. Whenever you teach a young man that there is a metaphysical content to The Law you have temporarily, at least, incapacitated him from acquiring that tolerant point of view. Metaphysics is an unnecessary handicap to social progress, and the law schools ought to divorce themselves from it.” Professor Bernard C. Gavit, Indiana U. School of Law, 1932.

“[T]he problem that arises, here, about relativism is one which leads a great many professors not to want to get tangled up in the whole problem of moral judgment – because, after all, they are all relative judgments, and moral codes are relative to cultures – the students get this study early in their sociology – and they…come out…in courses defining ethics as conformity to your group. Edwin E. Aubrey, Prof. of Religious Thought, U. Penn., 1956.

“A course in professional responsibility is very much needed in these times…With ferment pervading our social structure and social standards, it is even more indispensible that he have this understanding, so that he may adapt his service and the methods of providing it to the changing conditions under which he may find it necessary to operate. Not only will he then serve his society better; his personal success in his chosen profession is more likely assured.” Maynard Pirsig, U. of Minn., 1965 casebook on Professional Responsibility.

“[The Professional Responsibility] materials seek to place the student in a succession of ethical conundrums and ask the student to work his or her way to a solution using the materials provided and the student’s own judgment…[The title of this book ‘Problems and Materials on Professional Responsibility’ itself highlights two further principles which underlie the study of legal ethics. First, it reinforces the fact that current lawyers’ obligations are derived, not from a revealed moral code, but from the traditions of the profession itself. The obligations are largely self-generated and self-imposed, and their content shows us most about what it means to be a lawyer. If the picture they paint of the profession is sometimes unattractive, lawyers have the right and the duty to change the ‘ethical’ principles. Second, the title suggests that ethical issues are rarely open-and-shut and that the standard one should strive for is ‘responsible’ behavior. There is simply no consensus for example, as to the lawyer’s duty to the court if he knows his client is lying. In that and other situations a lawyer can only be sensitive to the issues involved and resolve these difficult cases as responsibly as he or she is able.” Thomas Morgan and Ronald Rotunda, Problems in Professional Responsibility, 1976.

You see where we were and where we’ve come. McConnell puts it well: “Only the earliest casebook on legal ethics contained any reference to the historical debate between those who advocated an absolute moral code and those who denied it. In all of the other casebooks the authors have virtually ignored that debate and have assumed that legal ethics involves no more than evolving concepts of social morality.” But don’t worry, putting our children through 13 years of this in primary school, and then another four years of it at university, and then three more at law school will only have a negligible effect.

-D

Written by Michael Duenes

August 28, 2012 at 5:21 pm

Books on Islam You’re Not Supposed to Read

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Robert Spencer, in his Politically Incorrect Guide to Islam, provides a number of books on Islam which he says “you’re not supposed to read,” according to the PC thought-police. I thought I’d give you the titles here for your own perusal, should you want to secure a copy of any of them.

A. Guillaume, The Life of Muhammad: A Translation of Ibn Ishaq’s Sirat Rasul Allah, Oxford University Press, 1955.

The Qu’ran. Spencer says: “Don’t believe what I am saying about the Qu’ran? Read it for yourself. The clearest most accurate translation is that of N.J. Dawood, The Koran (Penguin).” Spencer also recommends the translation by Mohammed Marmaduke Pickthall.

Joseph Schacht, An Introduction to Islamic Law; Oxford; Clarendon Press, 1982.

Bat Ye’or, The Dhimmi: Jews and Christian Under Islam (1985), The Decline of Eastern Christianity Under Islam: From Jihad to Dhimmitude (1996), Islam and Dhimmitude: Where Civilizations Collide (2001); all three are by Fairleigh Dickinson University Press.

Nuh Ha Mim Keller, Umdat al-Salik, or in its English title, Reliance of the Traveller: A Classic Manual of Islamic Sacred Law; Amana Publications, 1994.

Toby E. Huff, The Rise of Early Modern Science: Islam, China and the West; Cambridge: Cambridge University Press, 2nd ed., 2003.

Raphael Israeli, Islamikaze: Manifestations of Islamic Martyrology; Frank Cass Publishers, 2003.

Paul Fregosi, Jihad in the West: Muslim Conquests from the 7th to the 21st Centuries, New York, Prometheus Books, 1998.

Thomas F. Madden, The New Concise History of the Crusades; Lantham, MD: Rowman & Littlefield, 2005.

Hilaire Belloc, The Crusades: The World’s Debate; 1937; republished by Tan Books, 1992.

Dore Gold, Hatred’s Kingdom; Washington, DC: Regnery, 2003.

The Monks of Kublai Khan of China, or The History of the Life and Travels of Rabban Sawma, Envoy and Plenipotentiary of the Mongol Khans to the Kings of Europe, and Markos Who as Mar Yahbh-Allaha III Became Patriarch of the Nestorian Church in Asia, translated by Sir. A.E. Wallis Budge.

Thomas E. Woods, How the Catholic Church Built Western Civilization; Washington DC: Regnery, 2005.

Milestones, by Sayyid Qutb; Mother Mosque Foundation, n.d.

Jean-Pierre Peroncel-Hugoz, The Raft of Muhammed; St. Paul, MN: Paragon House, 1988.

Ali Dashti, 23 Years: A Study of the Prophetic Career of Mohammad; Costa Mesa, CA: Mazda Publishers, 1994.

Paul Sperry, Infiltration: How Muslim Spies and Subversives Have Penetrated Washington; Nashville, TN: Nelson Current, 2005.

I would add to Spencer’s titles the following:

Don Richardson, The Secrets of the Koran: Revealing Insights into Islam’s Holy Bible; Regal; Revised edition, 2008.

Phil Parshall, Understanding Muslim Teachings and Traditions: A Guide for Christians; Baker Books, 2002.

Bill Musk, The Unseen Face of Islam, MARC, Monarch Publications, 1989, 1997.

-D

Written by Michael Duenes

August 26, 2012 at 6:25 pm

A Christian Law School: Images and Vision, 2

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A Christian law school ought to incite in its students a passion for justice, a prophetic outrage at entrenched evil, and compassion for the suffering. Such ‘feelings’ and commitments may not, of course, be substitutes for the mental disciplines of legal analysis and strategic thinking. However, such convictions are essential to sustain a principled commitment to law as an instrument of justice in society. Education ought to be about instilling such visions.

So begins Lynn Buzzard in further describing the “marks” of a Christian law school. His point here is that legal education, indeed all true education, cannot be some kind of dispassionate, “objective,” ingestion of knowledge. For everyone has a viewpoint, and this notion of “neutral” and “unbiased” learning is quite impossible, and was intended to be. We are to be educated to the glory and worship of the One who made us the kinds of beings which can learn the things we do. This is the greatest failing of public, government schools. Not the drugs, not the gangs, not the bullying, not the sexual immorality, not the PC nonsense and historical revisionism, and not the idolatry of athletics. The public schools don’t know to what end they are educating, or if there even is an end, and as such, the video games are so much more fun.

Buzzard continues: “A Christian institution…will not shrink from the mystery and ‘otherness’ of God, but will in many ways consistently engage in worship. All who come into its presence and spend much time there ought to sense this quality.” Our Christian law students must come to see that “[t]he secularists have no monopoly on intelligent concern for truth and human values, and their loudly proclaimed preference for ‘the democratic creed itself’ is, in fact, a rival creed and metaphysics which deserves…to be examined on its merits alongside the chief alternatives and not covertly imposed as an arbitrary dogmatism.” Further, Christian law schools must “be sensitive to other’s convictions and values and also to clarify the nature of Christian thought so as to enable informed decision making.” Yes, we must winsomely challenge the baselessness of secular “neutrality” at every turn, proving and proclaiming that it has no foundation, while holding out Jesus and the wisdom He offers as basis for absolutely everything good and right, including law.

I was particularly impressed with Buzzard’s acknowledgement that the church and the university must be constantly working together, and his perception of the vital role that community plays in perpetuating a Christian school. He writes: “A university that owes its life to the church senses that this relationship is vital and symbiotic. The university will thus support the church even as it receives support…The Christian law school…must not only be a resource to the church in its grasp of legal issues, but it must also call the church to biblical faithfulness, and to principles of justice and equity in the public order.” Being at a secular law school myself, I have keenly felt my own need for support and encouragement within the Christian community, but in all honesty, the lack of it has been the most difficult part of my law school experience. Once classes begin, the pressure is intense and the studies intrude into almost everything, and I have simply not found much depth of fellowship with other Christians, particularly within the legal community. Bible studies are nice and needed, but they are not enough by themselves, and the church needs to wake up to this. The difference between the fellowship and support I had at my Christian school and what I have at law school is night and day, and the stresses and pressures are far greater at law school.

Buzzard also sees the Christian university as a prime place for creativity and renewal. He argues that Christians should not allow themselves to be locked into traditional or current educational forms, just for the sake of “doing what we’ve always done.” Faith, he says, should be a restorative and generative thing, moving God’s people out into new spaces and into creative new ways of approaching problems and issues. Further, he says that “there must be a readiness to accept ‘failure’ as normative in the quest for effective models. The tendency to ‘copy’ prestigious institutions or to choose stability and safety over creativity must be resisted.” Along with Buzzard, I cannot stress this enough. Christian schools do not exist merely to perpetuate themselves, nor should we see our own particular Christian institution as, for lack of a better term, “to important to fail.” God does not need any particular Christian school, and if a Christian school is willing to offer what God wants, creatively, passionately, and excellently, then I believe God will bring people so that the school can remain in business. But if He doesn’t, then we should be willing to let the school go out of business, rather than give way to fads and stale habits that ultimately serve ourselves and our survival. Much of our educational methodology needs rethinking. What a shame it would be if Christians schools come late to the party on this front. We have resources and Christians of old who lie by us neglected.

Perhaps the most important component of a Christian law school is the teachers themselves. Buzzard thinks this “might be obvious,” but in my experience in Christian education, it is not. He remarks: “So central is the teacher to the entire university process that a former President of the United Nations and advocate of a revival of Christian university thinking declared as his formula for success: ‘Make sure of your teacher and forget everything else.'” Ultimately, and at the risk of hyperbole, the buildings don’t matter, the gym doesn’t matter, the location doesn’t matter, the techniques don’t matter, the computers in the classrooms don’t matter, and all the other bells and whistles that we think will attract and keep students at our schools don’t matter. The Christian school will never be better than its teachers. Therefore, each and every Christian school, whether a law school or not, should strive, as Buzzard says, “to recruit, affirm, and sustain teachers whose commitments and teaching skills reflect a commitment to excellence in education in the context of its Christian faith,” and “the salary, tenure, and administrative structures of such institutions must be such as to encourage long term commitments to the institution, which provide opportunities for professional and personal growth.” Amen and amen.

Finally, a Christian law school, like all Christian schools, must have a “Christological Focus.” That is, the school must submit itself to Jesus’ lordship in everything, must declare that from Jesus, and through Jesus, and to Jesus are all things, must teach and learn and create and serve with the recognition that in Jesus “are all the treasures of wisdom and knowledge,” must have “its jurisprudence, its servanthood, its ideals, and its advocacy…deeply rooted in Jesus Christ as a living Lord.” As Buzzard concludes: “A Christian law school must openly acknowledge its commitment not just to Christianity as a philosophy or even way of life, but to the person and authority of Jesus Christ. The overall environment must invite people to encounter the person of Christ and his claims. The institution must pattern its life and relationships in the light of its acceptance of Christ.”

May Buzzard’s tribe increase, and may God allow me to play whatever part, large or small, he deems fit for me to play in the furtherance of His kingdom through Christian education and the law.

-D

Written by Michael Duenes

August 24, 2012 at 2:38 pm

A Christian Law School: Images and Vision

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That’s the title of a piece that Lynn R. Buzzard wrote for the Marquette Law Review. (Vol 78:267). In it he explores what might go into a truly Christian law school, of which there are very few. Though I wouldn’t say I have strong aspirations to establish a Christian law school, I certainly have aspirations to help more Christians take up the mantle of a distinctively Christian legal education, with a eye toward restoring the biblical worldview that undergirds so much of the Western legal tradition.

Buzzard begins with two fundamental questions: “What does it mean to think as a Christian about law and legal education? To what does the idea of a Christian law school incite us?”

In answer to the first question he writes, “A university knows that education is ideological, inevitably theological…A Christian does not come to the educational process without orientations as to the source of truth and goodness…We come declaring that there is indeed a ‘way, truth and life.’ We do not apologize for that conviction. We find it not confining, but liberating, sparing us from the tyranny of momentary ideologues and the oppression of immediacy. It places us in an historic stream and we do not wish to step outside of it.” Such a winsome and unequivocal grounding of education in the person and truth of Christ should constitute the marching orders for all manner of Christian education, at whatever level.

Buzzard then gives a particularly needful warning: “The history of Christian colleges mirrors a pattern in human nature – the loss of ideals and vision, the triumph of mediocrity, and the seduction of the spirit. The temptations before Christian schools to gain secular credibility, to attract funding, and to assure institutional survival have led many such institutions to sell their birthright.” Oxford, Harvard, Princeton, Dartmouth, Yale come to mind as schools that succumbed to such temptations. The process happens almost imperceptibly. I want to see institutions committed to the kind of vision that Buzzard puts forth because, as he says, “[I]issues in bioethics, world peace, human rights, allocations of power, and environmental protection are all value laden. Lawyers play prominent roles in shaping public debate on these issues…Christian law schools may be the most effectively postured for contribution to a national debate.” If Buzzard is correct, and I think he is, I would only add that the commitment to Christian education among Christians must start further down, at the very beginning of the educational process. It is there that Christians have lost their nerve.

Of course, what’s true for a Christian law school is true for all Christian schools, namely, that “[l]aw schools are under enormous social and professional pressures to adapt to the prevailing legal ethics. Accrediting associations add to the pressures to reflect a secular orthodoxy.” I have seen this pressure at work in the Christian secondary schools.

A Christian law school, says Buzzard, will “recognize that there is not just one compelling vision for a Christian law school or university,” that a Christian law school “may be advanced by a wide variety of institutional structures and forms including not only formal curricula, but aspects of institutional life as well,” and that “[t]o be Christian in a rich biblical sense is to recognize that all cultures, all legal systems, and all political ideologies stand in judgment.”

Buzzard then asks: “What are the marks of a Christian law school or university? By what shall it be known? What ideas incite it?” He answers: “‘The first mark [of a Christian college] is the penetration of the total college life by the central Christian convictions.’ This is, I believe, the most central feature which ought to characterize a Christian law school. It embodies the scope of our inquiry, the conviction of coherence, and a declaration of the source of that unity. ‘In him we live and move and have our being.'” Thus, the Christian law school will “take seriously the biblical perspectives that have contributed to the formation of the Western legal tradition…It will take seriously man’s fallen nature, corporate evil, and human pretensions. It will show a special interest in justice, for that is God’s character.”

Yet Buzzard goes further, observing the crucial inseparability of Christian education and the Christian church. He writes: “A Christian law school should provide the locus and stimulus for legal scholars within the Christian tradition to seek and develop through research and collegial exchange an understanding of the relationship between Christian faith and law (including the positive law, the concept of law, and legal institutions, etc.). Such an understanding will serve the church, professionals, and society in its quest for a just society.” Indeed. I have too often lamented the ambivalence with which the institutional church views the project of Christian education, not seeing the value of it.

Buzzard provides other pillars that must go into a Christian law school: “A Christian law school must resist further fragmentation of thought and seek a vital relationship with other disciplines within the university. This is especially true when so many students come to law school with minimal backgrounds in history, religion, political science, and literature. We are in danger of becoming a trade school profession ill equipped for personal growth and virtue, much less the exercise of public virtue.” Unfortunately, the patient’s disease may be far more advanced than Buzzard here acknowledges. In my brief experience of law school, I would argue that it has already largely turned into a glorified trade school. We have speakers that come and decry the horrid ethical culture within, say, prosecutor’s offices, but what would we expect? We ask people to be ethical, we tell them they have “professional responsibility,” but we hold out nothing more to ground them in their ethics than, “Don’t get caught.” As C.S. Lewis says, “We castrate and bid the geldings be fruitful.” The “minimal backgrounds in history, religion, political science, and literature” have come about not only because of the utter ruin that has beset our public, government schools, but also because Christian schools have bowed to faddish educational models and methods.

Buzzard says that Christian schools must not become insular, must “be concerned with the development of the whole person,” and must have faculty that, “while properly focusing on areas of special strength, must integrate their academic disciplines with larger understandings of society, culture, ethics, and religious thought.” This last point about Christian school faculties is particularly poignant, and the lack of such faculties leads to the seemingly ever-futile discussions about “integration” of a biblical worldview with non-biblical subjects. We don’t have “integration” because our faculties don’t have the raw material with which to perform such integration, for they too have been insufficiently schooled in history, philosophy, religion, and literature, apparently with not enough motivation to do much about it.

More on Buzzard’s piece in my next post.

-D

Written by Michael Duenes

August 22, 2012 at 10:44 am