#31 Spring 2001
l RESPONDING TO TERRORISM
l TAFOL's HISTORY
l MAZZONE WINS AGAIN
2001 Page 1
RESPONDING TO TERRORISM
Note: Because of publication delays, this bulletin was written
published after September 11, 2001. We retained
the above date for inventory purposes.]
are saying that this country retaliate to the September 11 attack
by massive bombing of countries that have
supported terrorism.In response, it is argued: This kind of "precipitous
action" is not appropriate for the United States. The government
of this country is based on the rule of law. Before anyone can
be condemned, he must be found guilty in an objective proceeding.
The rules of such a proceeding, implicitly and explicitly embedded
in our Constitution, require that he be advised in advance of the
charges against him, that he have a speedy and public trial, that
he be confronted with the witnesses against him, that he may be
represented by a lawyer, that he be given every opportunity to
defend himself including the right to subpoena witnesses in his
favor, and that he be convicted on the basis of reliable evidence
by an impartial jury.
How, then, can this country justify the killing of people who
have been afforded none of these protections?
Consider two fictional incidents.
The Trojan War occurred over 3000 years ago. During that War,
two Greeks, Odysseus and Diomed, are looking for intelligence concerning
their Trojan enemy. They capture a Trojan, Dolon (who was seeking
intelligence of the Greeks for the Trojans). In an effort to avoid
death, and under a promise from Odysseus that he will not be killed,
Dolon gives the Greeks valuable information concerning the plans
of the Trojans and the distribution of their forces. Then he seeks
the benefit of his bargain:
Now, therefore, take me to the ships or bind me securely here,
until you come back
and have proved my words whether they be false
But he does not get that benefit.
sternly at him and answered: "Think not, Dolon,
for all the
good information you have given us, that you shall
escape now you are in
our hands, for if we ransom you or let you
go, you will come some second time
to the ships of the [Greeks]
either as a spy or as an open enemy, but if I kill you
an end of you, you will give no more trouble."
On this Dolon
would have caught him by the beard to beseech him further, but
Diomed struck him in the middle of his neck with his
sword and cut through both sinews so that his head fell rolling
in the dust while he was yet speaking.1
2001 Page 2
This is brutal.
It is not the objective method of determining guilt one envisions
in a civilized society. How can it be justified?
Can it be justified in modern times?
An analogous incident is presented in the 1998 movie, Saving
Private Ryan. During the Second World War, an American patrol captures
a German soldier. To imprison the German is impractical; he must
either be freed or killed. The American leader decides on the former.
Later in the movie, there is a brutal battle in which the German
soldier who had been freed kills a number of brave American soldiers.
Back to the Trojan War. After ten years of fighting, the Greeks
(using the famous Trojan horse) are victorious. They burn the City,
kill all the men they can find, and capture the women and children
to be made Greek slaves. Two of the prisoners are Andromache, wife
of the dead warrior Hector, and her infant son, Astyanax.
A Greek, Talthybius
is in charge of the Trojan women. He is sympathetic to their
plight; but he comes with news that the Greeks have decided
that Astyanax is to be killed because "the son of so distinguished
a father cannot be allowed to attain manhood."2 He tells Andromache
that she should quietly accept this decision because, if she complains,
her son will not only be killed but that he will also be denied
a decent burial.
Can killing an innocent child be justified? In modern times?
On the front
page of The Los Angeles Times of October 15, is a picture of
a man watching
a boy assembling a rifle. It bears the
caption: "Little Brother. In Afghanistan, moujahedeen fighters
adopt lost boys such as 14-year-old Alauddiln, above, who dreams
of avenging his father’s death in battle as he learns the
art of war."
against massive retaliation ("precipitous action")
presented above presupposes a civilized society. In that context,
the Constitutional rules protect the rights of innocent individuals.
The present international situation is not being carried on in
a civilized society. As recent events demonstrate, to apply the
rules now is to cause the death of the persons whom they are designed
to protect. We are in a war. War is, and has always been (to paraphrase
General Sherman), hell.3 To engage in the generosity of the American
leader in Saving Private Ryan amounts to self-sacrifice. He who
turns the other cheek deserves what happens to it.
(Butler Tr.), Iliad, Book X
Euripides, The Trojan Women. The method of Astyanax' death
is unnecessarily cruel. He is to "be thrown down from
the battlements of Troy." Odysseus appears over and over in these
stories. The Trojan horse was his scheme. And he convinces
the Greeks to kill Astyanax.
full quotation comes from an address to the graduating class
of the Michigan Military Academy: "I am
tired and sick of war. Its glory is all moonshine. It is only those
who have neither fired a shot nor heard the shrieks and groans
of the wounded who cry aloud for blood, more vengeance,
more desolation. War is hell." In a reply to protests over his
treatment of the city of Atlanta, he said: "war is cruel and you
cannot refine it."
2001 Page 3
On July 16, 2001, Steve Plafker gave a personalized historical
summary of The Association for Objective Law at a meeting held
at the Second Renaissance Conference in Anaheim, California. The
following is a summary of what he said.
I attended my first Objectivist conference in August 1987. On
the schedule at that conference were several meetings of professionals.
The purpose of each meeting was to organize a group to advance
Objectivism in a profession. Arline Mann, a New York lawyer, was
in charge of the lawyers' group. She led a general meeting to outline
possible activities of such an organization.
The following May, the future TAFOL Board of Directors met in
Detroit to follow-up on the work at the conference. We spent a
weekend planing the organization. For several months afterward,
we developed a charter. As an example of the effort necessary to
run such an organization, much of the time was spent finalizing
the statement of the purpose, which is: to advance Objectivism
as the basis of a proper legal system.
One important provision of the charter is that TAFOL is run by
a self-perpetuating Board of Directors. This was to ensure that
TAFOL maintains a truly Objectivist perspective. We have since
become a Missouri nonprofit corporation. Our charter provides that
we have no members. (We have only contributors.) The reason is
that, under Missouri law, members have rights. To have members
with rights would destroy the self-perpetuating nature of the Board
In the 13 years of our existence, we have published a Bulletin
containing commentary on the law from an Objectivist viewpoint.
We have written and submitted op-eds. One, on abortion, was considered
for publication in the Christian Science Monitor.
We wrote a
position paper on mandatory pro bono (a program that requires
to donate their time for the benefit of the poor)
that did get published. One day I came home from work and opened
up my copy of the Los Angeles Daily Journal, a (very good) legal
newspaper. On the editorial page, there was an op-ed favoring mandatory
pro bono written by an associate of the Rev. Jesse Jackson. As
I read it, I got angry, and I outlined a letter to the editor in
my mind. After finishing the article, I looked elsewhere on the
page. There was another article entitled, "Mandatory Pro Bono,
a form of slavery." I started to read this article. This is
a good article, I
2001 Page 4
Then: This seems familiar. Then: I helped write it. It was a
very well edited version of our position paper. Later
position paper was almost published in a magazine of wider
circulation. It failed because the magazine had a policy against
anything which had been published previously.
TAFOL has presented discussion panels at Objectivist conferences.
Its directors and officers have given legal advice to the Ayn Rand
For several years, we ran an essay contest for law school students.
Its purpose was to generate interest in Objectivism among law students.
We discontinued it after a few years for several reasons. The contest
generated no new Objectivists, and the quality of essays we received
deteriorated over the years. The potential to generate interest
in Objectivism was not worth the work involved in writing the questions,
in getting them printed, in distributing them to law schools and
in grading them. This experience illustrates the experimental nature
of programs to advance Objectivism.
We have filed amicus curiae (friend of the court) briefs in several
cases. Our first was filed in the Third Circuit Court of Appeals.
It attacked a program in Pennsylvania that denied a diploma to
any high school student who refused to provide 60 hours of unpaid
community service. We followed this brief with a similar one in
a Second Circuit case from Rye Neck, New York. Although both cases
were lost, TAFOL got an opportunity to express to the court the
proposition that enforcing altruism on public school students is
We supported an attack on an IOLTA (Interest On Lawyers Trust
Accounts) program with money and amicus curiae briefs. Some details
are in the following article.
In recent years, some states passed laws that required this money
to be held in interest-bearing accounts; the interest went, not
to the lawyer, not to the client, but to the state for use in supporting
lawsuits by indigents.
The Washington Legal Foundation, a conservative legal group, and
Michael Mazzone who, at the time, was TAFOL's president brought
a case attacking this law. TAFOL supported Michael with money in
the trial court and in the Fifth Circuit Court of Appeals. The
case eventually went to the United States Supreme Court where TAFOL
filed an amicus brief. The Supreme Court ruled in Michael's favor
on one of several issues and sent the case back to the trial court
for further proceedings. Michael lost in the trial court and again
appealed. On October 15, the Court of Appeals again ruled in Michael's
favor. For details, see the next article.
We supported the Miami relatives of Elian Gonzalez in their attempts
to keep him in the United States with briefs in the trial court
and the Court of Appeals. One of Elian's lawyers told me that she
(the lawyer) was so impressed by our trial court brief that she
intended to use certain of its reasoning in the argument. The judges
were not so perceptive.
We filed an amicus brief in the Circuit Court in the Microsoft
TAFOL is now planning an Objectivist law review. The first issue
is projected for the summer of 2002. This is an exciting new direction.
It should have a bigger effect on the law than any amicus brief.
First, we should be able to get it into law school libraries where
students and professors can read it. Second, even in court cases,
a law review article can have a bigger influence on judges than
To continue with our program we will need money. I understand
the natural inclination to use
Spring 2001 Page 5
to support The Ayn Rand Institute. I do that. And
if I thought the choice was between The Ayn Rand Institute
Association for Objective Law, I would choose The Ayn Rand
Institute. But that is not the choice. I recently discussed this
contributor. He had sent us a little money but indicated
that he was reserving
the majority of his money for The Ayn Rand Institute. I told
him I thought this is right; we cannot hope to influence
as much as The Ayn Rand Institute. However, we can be an adjunct
to what they do; we can complement their efforts.
To receive our bulletin, a $25 minimum is required. Any contributor
of $50 or more gets a copy of our Supreme Court IOLTA brief. And,
to encourage you to give as much you can, I remind you that we
are a tax-exempt organization, i.e., that your contributions are
[Note the Bulletin is no longer published in a paper format and
paper copies brief copies are no longer available. See this web
site for briefs.]
MAZZONE WINS AGAIN
One of the problems with non-objective law is that no problem
is simple. Issues that need not arise or which should be settled
in two sentences must be debated ad nauseam. An example is the
IOLTA case which TAFOL has been supporting.
IOLTA, as readers of this Bulletin know from repetition over the
years, stands for Interest On Lawyers Trust Accounts. Most lawyers
will, at one time or another, hold money which belongs to their
clients, not to them. The law requires that this money be segregated
from the lawyers' personal money. It is usually kept in a separate
bank account, called the lawyer's trust account. Since, in most
cases, small amounts of money are held for short periods of time,
the trust accounts have traditionally been non-interest-bearing
The IOLTA program requires that lawyers' trust money be held in
interest-bearing bank accounts. The interest is taken by the state
and used to provide legal services to low-income persons.
with decent principles, it is governmental theft, therefore immoral,
unconstitutional. Easy. But, the modern court
system regards every altruistic "interest" as a proper
subject for governmental intervention. Therefore, it is taking
years to resolve this issue.
Plaintiffs (former TAFOL president Michael Mazzone, one of his
clients, and the Washington Legal Foundation) filed a suit against
the State of Texas in federal district court attacking the Texas
IOLTA program as unconstitutional. They lost a motion for summary
judgment in the District Court, but the Fifth Circuit reversed
this decision. The State appealed to the United States Supreme
Court which ruled for plaintiffs on one of several issues and sent
the case back to the District Court for resolution of others.1
After a trial, the District Court again ruled against the plaintiffs.
They again appealed.
on this in the Fall 2000 issue of this Bulletin. The last sentence
that article was: "We are hopeful once again
for a favorable ruling."
On October 15, the favorable ruling occurred. The Court of Appeals
once again reversed the District Court and directed the District
Court to enter judgment for the plaintiffs. This means that, unless
the State appeals to the Supreme Court, Michael and his associates
have won. This should also destroy the mandatory IOLTA programs
in other states as well.
v. Washington Legal Foundation, 524 U.S. 156 (1998)
Copyright © 2001
The Association for Objective Law. All rights reserved. The Association
for Objective Law is a Missouri non-profit
corporation whose purpose is to advance Objectivism, the philosophy
of Ayn Rand, as the basis of a proper legal system.