User:JP

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Reactions to Class

January 2

Interesting class today. I am pleased that Nesson's approach to thinking about the law is similar to my own, if only because it means I will be less likely resist what he has to teach. Law is a system, and but one of many competing, sometimes/somewhat interlocking systems. But did Nesson suggest we can work out *why* the rules came to be what they are? (Our notebooks were closed.) If so, then I differ. Throughout the development of the rules, choices have been made; we can describe what the choices were, but I doubt we're in a position to describe what actually caused those choices. In other words, I'm happy to approach the rules as an endpoint, but at best I believe we can try to explain *how* we got to the point -- to construct a genealogy. Will Nesson attempt to do more?

But that's only one part of the course. I'm still trying to work out my reaction to Levin's lecturing. Obviously, he is very accomplished, and I have had very little exposure to practitioners (of any skill level) here at HLS. So, I should take advantage of it. On the other hand, I have no desire to be a trial lawyer, so much of the first lecture seemed like just so-much esoterica. Perhaps more generally, I wonder whether someone who describes himself as burned out and jaded can teach others to find meaning.

I'm not particularly impressed by teachers' complaints (in Evidence or otherwise) that students are using their computers to send e-mail during class, or play solitaire, or whatever. Now, I find to be equally silly some students' claim that they have a "right" to laptops and internet access. The point, though, is that without computers, we will be daydreaming, or doodling, at times. It's a three hour class. And so, I'm very pleased with the chat room and with the Question Tool. To me, they represent a recognition of the fact that students' minds will sometimes wander. Such tools attempt to channel our wandering in an academically useful direction.

I'll also confess that I'm a bit dissatisfied that the "creative" portion of the court will revolve around the Bragg v. Linden moot court. It's simply not a subject matter that I feel passionate about (although I realize that there might be reasons to be passionate about it), and I'm skeptical about much creativity coming from groups of eight. But anyhow, I'll keep an open mind, and I've created a page, here, to try to get a discussion of it going.

January 3

I have been thinking about the role that the Levin lectures are intended to play in our experience of learning evidence. I see three possibilities. None of these is exclusive.

First. Perhaps Nesson wants us to learn the things that Levin is consciously selecting to teach. I dismiss this possibility almost immediately. Nesson knows that we know what a "rhetorical question" is. He knows that we will do fine learning the FRCP on our own, before the bar. If he thought we needed to learn those things in his class, he would teach them himself.

Second. Levin is a piece in the law machine. A valuable piece, no doubt . . . but then, is *he* is the thing we are to learn about? Truly, we may turn our microscopes upon him, examine him, marvel at the workmanship or uncover flaws. However, I doubt this is why Nesson has brought him here. The two of them have, I think, too much respect for each other, to use and to be used in this way.

Third. Levin and the Necker cube. His presentation to the class gives reality to the cube. He has made a livelihood by forcing juries to see the cube in only one way. In the courtroom, no doubt, he stays faithful to the facts, to the lines are as they have been drawn. But, as he describes the cube to the jury, he points to each line in just such a way that they, too, will see a particular face in front. This, he calls the truth. (But does he *believe* it is the truth, is that the secret to his success? Or has he seen the other side, is that why he is jaded?)

Nesson's intentions are one thing. The experience we are actually having is another. From talking to my classmates, I believe we each are making use of these possibilities in different proportions. Can Nesson control, shape our experience? Does he need to?

January 4

Today, Nesson presents an overview of the rules of evidence. The students asked for it, he responded, but was it the right move? He seemed resigned.

Levin lectures on voir dire. I was more engaged during the Levin lecture than I have been in the past. I ascribe this to the fact that Levin interacted with class a little more. Why the change? Is this because he is off camera? And what does this mean to the at-large-participation component of the class?

I say there was a little more interactivity, but both Nesson and Levin still lecture, almost exclusively. They do not ask, or actively take, questions. This is strange to me. I am used to being a participant in classes. Even the professors I have had who reject the Socratic method find other reasons to talk with the class. Nesson expects us to be creative. But he does not offer the opportunity to be creative in class. Perhaps he expects students to leave class, to create on their own without needing him to hold hands or to give approval. Will this happen?

January 5

What happened today?

The facts are what they are, there is no need to recite them. We all have been witnesses. There will be no jury, no one to create a master story.

But I feel the need to tell a story.

Sure, I could tell it from the students' -- by which I mean *a* student's -- point of view. That is what I have been doing, yesterday, the day before. Now, instead, can I tell Nesson's story? Can I tell Levin's story? Can I let myself go there?

I find it easier to tell Saddam's story. Because I understand a reason to tell Saddam's story. A reason for me, if for noone else. However, when I try to approach Nesson's story, Levin's story, I hit a wall. There is a sign on the wall. Turn back, it says, what lies beyond is useless to you. You are wasting your time. Two grown men had their feelings hurt, they worried about their egos in front of you. SO WHAT?

There was much said in the first 160 minutes of class that was valuable. I hope that it will not be lost.

January 8

Nesson suggested today that some of the students' feedback had pointed out to him that he was treating Levin as an "exhibit." Was he referring to my earlier post? If so, was my feedback helpful? Or, did Levin read the feedback too, did it poison the relationship? I worry.

I went to the second life meeting today. My PowerBook G4 (with extra memory added) crashed twice. Sigh.

I cleaned up the front page of our wiki. I must say, editing the wiki is an excellent exercise in empathy. With each thing I rearrange, I ask myself: why did someone put this here? will they understand it if I put it here instead?

January 9

I am reading Nesson's blog from his 2006 class. It appears to me that he had an amazing connection with his students. Can our class create that sort of connection with our teacher? Is it right to try?

January 10

I have many thoughts on today's class. They are not terribly connected.

After promising to the lighten things, Nesson launches us into a horrific story of childhood sexual abuse. The Swans were convicted entirely on the basis of hearsay. Would the situation have changed if the children had been allowed to testify? Does the hearsay rule provide a bulwark against mob mentalities? I am not convinced, but I am intrigued. How can we test this?

Nesson gives me the chance to present my letter, my argument. I feel I did OK, given that I didn't have time to prepare remarks. I honestly appreciate the recognition that Nesson gave to my thoughts.

And then, an outstanding discussion hearsay. We practice cross-examining Nesson as a witness on one question. A lot of fun, and very challenging.

Professor Nesson, here is what amazes me about your teaching. You teach me very effectively at both a highly theoretical level and a highly practical level. But beyond that, you link the two worlds. You show how the conceptual stories can make us better practitioners of law.

January 11

I see that the Saddam / Osama have been removed from the group pages. Some sort of official action by sysop. They have not reappeared anywhere else that I can find. How should I interpret this? I feel a bit discouraged by this, given the nature of the original challenge.

I have been studying for the exam. Now maybe I shouldn't be studying at all. But I have been enjoying the process of studying, more than for any other law school exam. Playing with the the different pieces we've learned about, trying to see them from different angles, to fit them together in different ways. It's been good stuff.

On the other hand, its distracted me from taking the time to think more deeply about privilege, and Nesson uncovered some fascinating ideas about privilege today. I'll have to catch up on the weekend.

January 12

I'd like to comment on the exam, but I think I'd better not, so as to avoid any issues with self-identification. I've thought about setting up a page and commenting anonymously. However, after train wreck that was last year's exam feedback, I think it better not to lay down any tracks.

Perhaps I'll prepare some feedback now (to capture my immediate thoughts) and post it after grades are issued.

One thing I will say, though. Exams, for me, are psychically draining. That made it all the more difficult to watch (and to deal with) the Rodney King videos. It would have been so much more pleasant to have some Vinny. That being said, I feel that Nesson made the right choice. It's important to remember that mastering the laws of evidence is not just about showing that you can solve puzzles. There are very real consequences. Justice hangs in the balance. It is easy to blame the jury for the Rodney King verdict. But perhaps if the prosecution had better understood the defendants' point of view, had understood how the defendants' would use the evidence of the videotape, had gone somewhere with their cross-examinations instead of just letting the officers reinforce their story . . . well, maybe things would have turned out differently.

January 15

I enjoyed the Second Life session today. It is nice (and important) to connect the lessons we learn in class to the way that people outside of law school think about law. It's a real opportunity to think about how one would build a legal system from the ground up. Rebecca's great at facilitating discussion.

January 16

I very much like Nesson's idea of grading (at least part of) our exams in an open way. It's an unprecedented chance to see into the grading process and into the mind of a professor who is grading us. It is probably the only opportunity of this sort we will have. And surely, we all will benefit.

Nesson will be taking a chance if he offers it. One of the lessons of Solomon is that the decisionmaker should not say too much about the logic of the decision. Should Nesson choose to engage in this exercise, I hope that we all will be humble and appreciative. If a student doesn't feel that s/he will be able to accept the process, then that student should avert his/her gaze and accept his/her grade blindly.

January 17

So much for students taking control of the proceedings today.

January 18

I think I am finally beginning to understand why Nesson had wanted Levin to lecture to us. Perhaps it would have worked better had Levin been introduced during the final days of the class, instead of on day 1.

Other Thoughts on Evidence

January 2

I've been reading a bit of Nassim Taleb and, specifically, what he conceives of as the "narrative fallacy." Here's a quick explanation. Many people, when they look at an animal, find it difficult to accep the proposition that it is nothing more than a very successful example of random evolutionary process. They insist on imposing upon that animal a narrative, a story in which its creation was part of a grand design. This tendency is not (Taleb argues) the result of a religious mindset. Scientists who look at the development of a successful drug, economists who study the growth of enterprises, they also impose their narratives. We cannot accept that these things happen by chance.

At first, it seems he is the complete opposite of Joseph Campbell, the quintessential pattern seeker.

But Campbell argued that the myth, the pattern, refers to something inside of you. If you believe the myth refers to the outer world, then you have missed it.

So: law. Our system of rules may not be the endpoint of some evolutionary process, of progress. We may be where we are at because of randomness. Perhaps the eighteenth century jury was better at resolving disputes. perhaps it would make more sense to have jurors who were witnesses to the event in question.

The story that Nesson shares in The American Jury is a wonderful post hoc story. But is the rise of the jury truly "inextricably intertwined with the creation and defense of fundamental rights?" Or is this not just the telling of the American legal myth? If so, then perhaps we had better be looking inward and asking about the role of that myth. To preserve society? To create a sense of awe? Or does it point to some further truth?

January 3

Nesson has shifted metaphors: today he speaks of law not as a "lord" but as a machine. Its purpose is to resolve conflicts. It does so by processing conflicting stories, from them producing "truth" in the minds of those that it serves.

Why has Nesson chosen a "machine"?

How do I imagine machines? I think of Kafka, I see the gulag. I hear Pink Floyd, "Welcome my son, welcome to the machine / What did you dream? its alright we told you what to dream." Political machines, on the left and right. What Philip K. Dick called "the reduction of humans to mere use." Dante's Inferno and Blake's "dark Satanic Mills." Above all, Lewis Mumford, the myth of the machine.

Is this what Nesson, he of the Berkman center, imagines? Or does he see the machine as hopeful, as emblematic of progress? The machine, unlike the "lord" is under the control of those who stories it serves. It can be understood and analyzed. New and better parts can be designed as old parts wear down. Perhaps (perhaps) it may even be redesigned.

January 4

Why the efforts, the fights, about how to select juries? Should not one man or woman be as good at finding facts as another? For, after all, are not juries simply supposed to find the facts?

Of course not. We don't require Nesson, quoting Dyer, quoting Green to tell us that.

I simply cannot understand jury nullification as a special sort of event, as a category. Every day, criminal juries ask themselves "does this man, or this woman, deserve punishment? Is he or she one of us? And then the "facts" are found accordingly. I use the quotation marks because Zackowitz reminds me of the "facts" that juries are supposed to mind. "State of mind?" What is that? What was my state of mind this morning? Ten minutes ago? I cannot say, but perhaps twelve people I have never met, they can. Juries in the civil sphere make the same move, from "is" to "ought" and the back to "is." As Levin pointed out today, before juries ask themselves, "was the plaintiff injured through the defendant's negligence" they first will ask themselves, "ought the defendant be made to pay for the plaintiff's injury?"

And so, there are two conflicting sets of interests in the selection of juries. On one hand, the interests of the lawyers, who know that different people will answer the question of "what ought to happen to these people" differently. And the interests of the machine, which care less about the decision, and more about how that decision is perceived.

Does this change how we try to tell the story of the rules of evidence? Perhaps the rules are the Emperor's Clothes. They enable us to pretend that the jury focused only on the facts. That they heard only those things that were relevant to the event.

But no, that is too cynical. A better point of view is that different rules serve different functions, and they should be evaluated individually. For example, some rules (such as rape shield rules) recognize that base instincts may influence our decisions about what "ought" to happen. The larger rules may serve multiple functions. The relevance rules protect the outcome from criticism, but they also prevent parties, who otherwise might wish to do so, from grinding the machine to a halt.

January 6

The purpose of the law machine is to tell stories. Stories that create resolution, stories that heal. At the same time, we also tell stories about the law machine. The stories we tell also have their reasons.

In an ABA Journal Article, Martin Levin says a lawyer would be "crazy" to use race as a factor during voir dire. But if it was such a crazy idea, we wouldn't need Batson. The racist lawyers would simply go out of business. If it was such a crazy idea, Levin's software wouldn't take race (along with other factors) into account.

The truth is, for now, race matters. But Batson hopes to help move us to a world where race won't matter. And when we reach that world, the Batson rule will no longer be relevant.

Perhaps every rule recognizes that a particular story exists; and it is purpose is to fight that story, to create a new one.

Thus, we see that character does matter in a court of law; the relevance rule tries, slowly, to create a world where it doesn't. And it does that in two ways. Through the guidance it gives to the partipants in the legal process (even if that guidance can be circumvented), and through the stories it tells to society at large.

January 7

I find myself disturbed by Crawford and Davis and Hammon.

The treason trial of Sir Walter Raleigh looms large in these proceedings. But why is his plight more important than the plight of abused women and children? Why doesn't Scalia tell *their* story?

Richard Friedman argues that if Hammon had gone the other way, anyone could "create evidence evidence for trial, simply by making an accusation to a police officer in her living room." Fair enough. But, Professor Friedman, do you see this as something that women want to do? Why does this possibility worry you?

Walter Raleigh pointed out to the court that he had not had the opportunity to confront his accusers. Was he before a jury of his peers? Why not simply allow Crawford, Davis, and Hammon to make the same argument to their juries -- and then let the juries, in their wisdom, decide what to do with the evidence? Do we not trust them enough? Do we not trust ourselves enough, knowing that one day we may serve on juries?

Would I feel the same if I were on the witness stand, falsely accused?

January 8

Dear Professor Nesson,

Thank you for your sensitive guidance today as we talked about the confrontation clause and the issues of evidence that surround domestic abuse cases. I sensed that you have a great deal of concern for abuse victims. I am grateful for that.

I suggested that, as a society, our interest in ending abuse extends beyond the interests of the victim: that these are criminal, not civil, cases. You acknowledged my suggestion, and then you asked us in turn to think about what value we give to the confrontation clause. I would like to respond to that question.

I will begin by attempting to reframe the issue. We discussed domestic abuse today as a gender issue. I worry that this approach is dangerous. Victims of abuse include men and women, children and adults. When we speak of the issue as one or "empowering women" (or "disempowering women") we ignore the other victims of abuse. Moreover, when we speak this language we forget that most women are *not* victims of abuse. Most pernicious of all, perhaps, when we speak in terms of "women" and "men" we find it difficult to avoid ossified political rhetoric.

For these reasons, I prefer to speak in terms of "victims" and "aggressors". Against that background, I turn to the confrontation clause. To me, the word "confrontation," suggests a battle, a power struggle. Who, I ask myself, has the advantage in a "confrontation"? Always, it is the party who is stronger.

There are many ways that a party can be stronger. For example, in a courtroom, a party can be stronger because the facts align best with his or her story. In our telling of the story of Sir Walter Raleigh, this is why he wanted to confront his accusers. But a party also can be be stronger because he or she is smarter or better prepared. Or because of entrenched social biases. Or, a party can be stronger because -- much stronger -- because of the nature of his or her prior relationship with the person that is being confronted.

So, in my reading, the confrontation clause works to support the strong against the weak. Sometimes this happens for the good of society, and sometimes for the ill. Whether the overall result is good or bad depends on what kind of cases come to court. Here we have no statistics; we are left to our imagination. Scalia worked hard to shape the public imagination by telling the story of Sir Walter Raleigh. But the story of Raleigh is the the only story Scalia could have told.

Victims of domestic violence frequently find themselves psychically unable to confront their aggressors. I believe we do not demean them or patronize them or disempower them by saying so. We are simply acknowledging that this how the human mind and the human emotions work. Saying that we should "respect the victim's choice not to testify," in some situations, is like saying we should respect the choice of the person in a wheelchair not to climb the stairs.

You worried in class that many victims of violence would prefer to stay within the relationship of violence, rather than having their spouse or parent -- their source of support -- taken away. I cannot accept this as a reason to allow abuse to continue. Rather, this means that we as a society must do more to support the women, men, and children who are survivors of domestic abuse. No person should ever worry that testifying against his or her spouse or parent will mean a life in a homeless shelter or an abusive foster home.

Yes, I am suggesting a greatly reduced role for the confrontation clause. In turn, this would changing the story, the myth, that we tell about the machine. Can we do it in a way that people will believe in, in a way that has moral force? Yes. By admitting more evidence, we are giving greater trust to juries. When a spouse or child refuses to to testify against the accused, juries will have to decide what weight to give to to their prior statements, in light of all the other evidence. Juries will have to decide what to make of the refusal to testify. I believe our jurors are up for that responsibility. I hope that the law does as well.

Joel

January 9

I am awed my Nesson's answer to the problem of the blue bus. The machine lets juries decide only when the juries are in a better position than anyone else to make sense of the story. It is simple and elegant, but I could not have reached this idea on my own.

This insight may help to explain the value that Nesson places on the confrontation clause. Confrontations create unique information OK, I get that. Returning to the abuse cases, a prior statement -- hearsay -- is not much different from expert statistics. But still, cases are not decided only on such statements. I believe such statements can have a role.

I would like to try to apply this lesson to Second Life for a moment. What is a "trial" like in a world where every word, every gesture, can be recorded, exactly as it as seen and heard by every jury member. Assuming such recordings are made -- and it would be techincally trivial to do so -- is the jury ever in a "better" position than every other citizen of Second Life? If not, then what purpose does the Second Life jury serve?

January 9.2

I have been thinking about "Nesson's evidence", and what insights it may offer to other areas of law. One topic that concerns me deeply is death penalty jurisprudence. In case after case, the Supreme Court puzzles about jury instructions. They do so even though the instructions likely have no effect upon what is going on inside the black box. Why?

Nesson provides insight. By tinkering with the instructions, we are trying to make sure that society will accept the verdict. We are trying to make sure that jurors will be able to go home and sleep at night.

January 10

One particular image from the 60 Minutes video stays with me. At the very end, Kathy Swan acknowledges that she was offered a plea deal. Under the terms of the deal, she would have received her child back. She explains why she did not take it. She says that plea deals are for the guilty, and she was not guilty.

What would King Solomon have said about this? Would he approve? Is this not once again again a mother who is willing to give up her child rather than agree with the judgment of the court? No, I don't think so. In my interpretation, Kathy Swan was behaving just like the mother who was willing to sacrifice the child, perhaps even to destroy the child, for the sake of something "higher."

But let's not rush to condemn. Remove the scare quotes. She did achieve something higher. She helped put an end to the child abuse witch hunt. Now, I for one refuse to see the witch hunt as a total failure of the system. Child sexual abuse was -- and is -- a real problem. The hysteria of the 90s may have at least sent a warning, one that needed to be sent. "Don't you even dare think about abusing a child, the system will not tolerate even a hint, even a whiff of abuse."

Kathy Swan was not a willing participant in sending *that* message. But once it had been sent, the witch hunt needed to be stopped. Kathy Swan took the hit, she gave up her child, she gave the media lord the story it needed, she created a possibility for closure, and she likely saved many, many more families from being destroyed. So, Kathy, I don't know whether to thank you or to condemn you for sacrificing your child.

January 10.2

It's time for a change of subjects.

About 45% of prisoners currently serving time in federal prisons had their sentences "enhanced" as a result of the federal sentencing guidelines. In other words after the jury found them guilty "beyond a reasonable doubt" of some crime, the sentencing judge found that there was a "preponderance of evidence" that the defendant had committed other "relevant conduct."

According to what evidence does a sentencing judge arrive at this "preponderance of proof? (S)he looks at a sentencing report, prepared by the probation officer, who probably was just writing down whatever the prosecutor told him/her to write. Often, this report is sprung upon the defendant only at the sentencing hearing, so he or she has little chance to mount a defense. Thus, the defendant may easily be sentenced based on conduct that was uncharged, information that the jury refused to believe, or even conduct of which the defendant was acquitted.

Typically, this is justified as a way of ensuring that people will receive equal sentences for equal crimes. But anyone who has participated in the criminal justice system will tell you that this is far from true.

Can the sentencing process be explained meaningfully? Does it project appropriate, meaningful stories? Let me try make the argument. We ask the jury only to make a determination about the core story of the crime. We simply do not have the resources to require the jury to make a determination about every relevant detail. But every detail must be taken into account if the system is to project a behavioral norm. Thus, the sentencing judge must "complete" the story. (S)he is determining what the most likely story is -- even if that story, in the end, may have had a very low probability of actually having happened. That story, perhaps, will be especially durable, simply because the defendant will have little opportunity to understand or challenge it.

I'm not sure I like that account, but it is the best that I can offer.

January 12

I've been thinking back on Levin and Nesson and the lesson that, to be successful advocates, we must try to see the argument from the other side. And I've been thinking about two writers. Kaavya Viswanathan and Ian McEwan. In 2006, both came under fire for plagiarizing in their novels. I don't want to get into a debate about plagiarism here, about whether what they did was right or wrong. But I do want to discuss how they handled the accusations.

Ms. Viswanathan came up with an explanation . . . but it was a story that gave absolutely no consideration to her critics' point of view. She said her copying was "unintentional" and "unconscious." She attributed it to the fact that she has a "photographic memory."

Mr. McEwan completely disarmed his opponents. He said that he copied, deliberately and consciously. He acknowledged how indebted he was to his source. And then he explained the role that copying has in literary production. He made use of the other side's evidence. And by so doing, he took all the wind out of his critics' sails. What more could they dig up?

Now, let's look at the headlines:

Fascinating.

January 12.2

Yesterday, Professor Nesson said, approximately, that "Ethics is that area that lies between what you know to be true and what the other side can prove against you." It strikes me that anonymity on the net, on the wiki, on Second LIfe is the realm of ethics.

January 13

I've been thinking about Rodney King, literature, and a fourth view of the Necker cube. Let's see if I can tie this all together in a meaningful way.

Nesson says that: "the object of judicial factfinding is the generation and projection of . . . verdicts that the public will view as statements about what actually happened." In interpreted the last half of his sentence as meaning "verdicts that the public cannot help but view as statements about what actually happened." We as the public look at the machinery of the court; we see that the system was set up so that jury was in a better position than we were to understand what happened; and so, as a matter of logical necessity, we must accept their story.

But maybe that's not how it works. Maybe when we (the public) listen to a jury verdict, we willingly choose to suspend our disbelief.

It is like when we read a novel. On one level, I know that Castorp and Setembrini and Naphta never factually existed. But I must suspend that, I must accept their existence, if I am to absorb, to benefit from, The Magic Mountain.

But of course I can't do that with every book. Some books are junk. If I am going to believe in a book, it is because I sense that book offers me something I need, even if I can't articulate it.

If what I am suggesting is true, then to be truly successful as advocates, we must see three points of view in addition to that of our own side. We must see the point of view of our opponents. We must see the point of view of the court (Levin spoke eloquently about respecting the court's rules; Vinny backed this up). And we must see the point of view of the public. (And perhaps there's even another point of view: the difference between our point of view as attorneys and that of our clients).

The attorneys for the officers who beat Rodney King ignored the point of view of the public. They got the verdict they wanted, but they failed to tell a story that would give the public something it wanted. The story they told was about the police officers' concern for their own safety. About not wanting to escalate the situation. But they never explained how the officers' actions connected to society's needs. To Los Angeles's needs.

Admittedly, it would be a challenging story to tell. But if they had managed to do so, perhaps the riots would have been averted.

January 14

Back to the Confrontation Clause and the trial of Sir Walter Raleigh. I've been thinking that Raleigh wasn't the only person who was wronged in the trial. Cobham was also wronged. He has been maligned throughout history for something he might -- or might not have -- said.

Perhaps the Confrontation Clause's greatest service is to protect the accuser. It ensures that their accusation is presented in the way they wish it to be. It gives them the cathartic benefits of telling a story. Think of South Africa, the Truth and Reconciliation Committee.

January 17

The high point for me today was the discussion of Ulysses. However, I was surprised to hear several people suggest that we couldn't talk about or think about Odysseus except as a creature of his time, bound by whatever baggage we ascribe to the Greeks of his era.

The reason why the Odysseus story stays with us is because Odysseus is a universal man. It is only because of this quality that Tennyson's completion of the story makes sense.

There are a few other authors that also have this quality -- most notably, Shakespeare. But I think that the desire to tell the story of the universal man is not limited to novelists, poets, and playwrights. The most successful lawyer, I think, would be the one who could portray his client as Everyman.

In part, this was why we used the monomyth to give structure to our stories of Saddam Hussein.