By: Ashley Garman

In The Trial, Kafka presents a picture of the legal system as the king of all bureaucracies.  The path to “justice”, per Kafka, is a maddening, endless chain of seemingly arbitrary requirements: submit these briefs, show up here at this time, wait here, say this not that, et cetera.

Recently, I was reminded of a real-life example about how arbitrary requirements of the legal bureaucracy can be.  In September of 2007, Judge Sharon Keller, presiding judge of the highest criminal court in Texas, refused to keep the court open an extra 20 minutes past its closing time to accept the appeal of death row inmate Michael Richards.  Richard’s lawyers were trying to obtain a stay of Richard’s execution until the United States Supreme Court ruled on the constitutionality of lethal injection.  A computer malfunction caused a delay in the pleadings, Judge Keller instructed her clerks to close the court promptly at 5:00pm, and Richards was executed the next morning.

Regardless of one’s view on capital punishment (a morally charged issue of its own, but not relevant to this post), it’s clear that Richards was executed that morning not because of the merits of his appeal, but because the clock struck the arbitrary hour of 5:00pm before his appeal reached the court.

Of course, in this case, there is more going on here than just the bureaucracy of the legal system.  Judge Keller’s actions may not even have been legally acceptable.  On the eve of executions it is normal for a judge to accept late pleadings; in fact, the state’s judicial conduct commission is investigating Judge Keller’s conduct, which could lead to her impeachment.

It seems then, that this is a perfect example of how, though the legal trumps the moral, often politics and bias can trump even the legal.  In The Trial, Joseph K. had no hope of winning his case, because the line of his lip and the fact that he professed his innocence made people certain he was guilty.  In To Kill A Mockingbird, racism prevented Tom Robinson from any chance of acquittal.  It seems clear that what happened in this case is that a Republican judge from Texas, with certain views on capital punishment, had those views in mind when Richards’s lawyers asked her to keep the court open a few more minutes.

By: Peter Lawrence

First off, it was truly an honor to have Professor Rosenbaum and Actor Richard Dreyfuss on the same stage, two guys with common sense. Mr. Dreyfuss made some very powerful comments. Mr. Dreyfuss made a warning to all in the crowd and those viewing on simulcast, that we as a people will have a very troubling future. I couldn’t agree more. America has been swimming in a sea of ignorance for quite some time now, and it hurts seeing how deep we may sink. Our educational standards are lousy, our patriotism is silencing our ability to accept or acknowledge criticism, and our elitist mentality has left us with misunderstanding of the world. I was born overseas, I have lived overseas. There is nothing worse than to see how we hold a negative view of others.

In particular, our legal system has failed us. We don’t look for the truth, we look for the way we would like the truth to sound like. This was by far, the most powerful message I have ever heard in law school. Mr. Dreyfuss hit the nail right on the head. Our legal system rewards those who are able to adjust the truth, not those who are able to profess the truth. We jockey forever over the truth and we end up where we started, with no justice in sight. Our court proceedings are wasteful and solve no dispute and do not focus at the heart of our problems, the morality associated with legal decisions. Professor Rosenbaum played a key video clip from The Dreyfus Affair, a film based on the novel. The clip showed how public outrage took control over the court, how judges paid little to no attention to the facts and focused more on the way they saw the case, with a narrow view. As a result, justice was thrown out of the window. The court seemed like the scene in To Kill A Mockingbird, when Atticus Finch faced a crowd that refused to accept the back-story associated to a party’s case. It reminds us of how useless the legal system can be when trying to resolve disputes, bring closure to emotional tragedies, and repair societal damages made as a result of the conflict. At this moment, Mr. Dreyfuss told us to champion ourselves for the right causes. We know what is right, and it serves little to world, when we silence ourselves.

This memorable evening reminded me of the beginning of the course when Professor Rosenbaum told us that one day we will put a judge to champion these values. It will take time, but changes will be made and resolutions will be sought. Here, I couldn’t agree more. I have seen the faces of defeat, felt the emptiness associated with a loss in court. These events strike at the core of humanity, the will to feel human, and it demoralizes those who are affected by the decisions that legal officials make. I don’t know where I will end up in the legal field, but I do hold these values to heart and I one day we will look beyond the cases and text and see what the law really should be, a guide to spiritual relief in an imperfect world filled with conflicts.

By: Lauren Weitz

One issue that is often discussed in Professor Rosenbaum’s law and literature class is the paradox between law and morality.  Are the two realms so distinct that it is virtually impossible for a lawyer to be good at his profession while simultaneously being a good person?  One theory that deals with this question is that of role differentiation.  Role differentiation suggests that the moral obligations lawyers are forced to assume in their profession inevitably displace whatever moral obligations one assumes in his or her everyday life outside of law.

Beyond the implication that a lawyer’s professional and everyday ethical obligations inherently contradict each other is the notion that a lot of lawyers actually welcome this assumption and legal ethics education requires it.  A good example of this is a lawyer’s relationship with a client.  Often times, lawyers are put in a position where in order to accomplish their job, they are forced to advance a client’s goals that are ethically wrong in a social context.  Take, for instance, a client who confesses to their lawyer a crime he or she committed a number of years ago that an innocent person is now serving time for.   Every sense of our ethical understanding would point us in the direction of revealing this information in order to help the innocent person; legally, however, a lawyer would be prohibited from doing so because of a lawyer’s duty of confidentiality.  It is circumstances like the aforementioned that persuade me to believe that perhaps a good lawyer cannot coexist as an honorable person.

By: Ariella Hellman

In Prof. Rosenbaum’s Law and Literature class we have been discussing the artist’s view of the law and the way in which the law can at times be unfair and suffocating. I would like to share some of my own distrust for the law or more accurately, my distrust for law enforcement officers.

Growing up, I always had an image of police officers as strong, helpful people. I’m not sure exactly where this image came from—perhaps it was just the classic story tale image of a police officer helping a lost child find his mom. Whatever the case, this image was dashed as I became older and steadily more and more afraid of police officers.

I learned that police officers were far more interested in asserting their power over others than in protecting people. They could be nasty and were generally just the opposite of helpful.

I would just like to share an anecdote which I feel is representative of my experiences.  My last encounter with a police officer was a couple of weeks before I gave birth to my son, the joy of my life. I was getting out of cab a block away from Fordham when suddenly a police officer appeared at the door of the cab and started bellowing at me.  He then asked me for my license and told me he was going to write me ticket and give me points for getting out of a cab when he had told me not to. I was really confused because I wasn’t even driving and I hadn’t even seen him until he was at my door.  Eventually, he decided not to write me a ticket but nevertheless the experience has left a really bitter taste in my mouth.

I don’t think my experience is unique. I think many people would agree that when they see a police officer they feel a bit fearful when in reality they should feel more secure. It is really sad that this is the way things are.

By: Jeffrey Dicker

One of the fundamental shortcomings of the American legal system is its failure to address moral injury. This flaw is most apparent when contrasting the common legal remedy of monetary damages to the often ignored moral remedy of an apology. All that is required of an apology is an acknowledgment that a wrong was committed.

In her March 18, 2009 column in Time magazine, Nancy Gibbs writes on the “Lost Art of Saying I’m Sorry.” In the article, she observes that in all the crises that have made their way into the headlines each day, very few of the people responsible for these crises have issued authentic apologies. By authentic apology, she refers to an acknowledgment that a wrong was committed. Too often the apologies that are given are only superficial. Alex Rodriguez was not sorry for using steroids, but for getting caught. The holocaust denying Bishop Richard Williamson was not sorry for the statements he made, but rather that the comments may have offended people.

Gibbs mentions evidence that in jurisdictions allowing doctors to apologize for mistakes without the apology being admissible in court, the number of malpractice suits has dramatically declined. She even details evidence of the biological effect that apologies have on the body.

Perhaps the sheer audacity of executives receiving tremendous bonus payments after their corporations were given huge taxpayer funded bailouts would be somewhat easier to swallow and put behind us, regardless of whether they were right in the first place, if the executives would simply give an authentic apology. As Gibbs says, “an apology is just a start. But it’s free and it’s right…”

By: Mark Nelson

The New York Times recently featured an article discussing castration of sex offenders in Europe.
One of the Law and Literature class themes is that there is an absence of morality in the legal system.  Some argue that castrating sex offenders is immoral and unethical.  After all, castration is not a medical necessity and the right to reproduce is generally accepted as an unalienable right—nobody wants a legal system condoning eugenics.  Castrating sex offenders can be seen as a classic example of the law continuing to ignore morality.  But from another perspective, preventing the physical and spiritual harm of other potential victims is just and an essential element of moral remedy.

Another class theme is that the law doesn’t care about back-story and emotional complexity.  Judging by the article, castration as an elective remedy for sex offenders takes into account at least some back-story and emotional complexity.  The Czech Republic sex offender who asked for and received castration said, “[Castration] was like draining the gasoline from a car hard-wired to crash.”  His crime was violent and sexual, but post-castration he feels like he “can finally live knowing that [he is] no harm to anybody.”  While his comments do not reflect how he became a sex offender, they do seem to show the articulation of emotional complexity that allowing castration as a remedy can provide.  In other words, making castration available may reflect the law’s willingness to contextualize sexual crime.

Finally, another class theme is that law is built around the reasonable person while society is made up of irrational people, so the law will not produce moral and just results.  The castrated Czech sex offender is not a reasonable person—he watched a Bruce Lee movie then knifed a young boy repeatedly, deriving sexual satisfaction.  After twelve years of prison and institutionalization, the offender asked to be castrated.  Offering castration may seem like taking advantage of a handicapped, irrational individual—a normal male wouldn’t willingly part with what makes his body biologically male.  But the offender seems to be happy with his new life, recidivism seems unlikely, and society is arguably shielded.  Whether castration is definitively moral and just remains to be seen.

By: Mayer Steinman

On Thursday, Feb 26th, the Jewish Law students association screened the documentary “The Forgotten Refugees,” which explores the mass and often forced exodus of Jewish communities from the Middle East, Iran and North Africa during the 20th century. The film touches upon many of the concepts of moral justice that we have discussed in our studies. Using extensive testimony of some of the one million refugees from Egypt, Yemen, Libya, Iraq, Syria and Morocco, the film recounts the refugees stories of suffering while living under the rule of Muslim leaders and their subsequent joy upon the establishment of the state of Israel in 1948.
Telling the story. Many of these refugees emphasized that they simply want to tell their story. While the media has been dominated by the current and past claims of the Palestinian refu gees, the stories of these jewish refugees, which for many occurred during the same period – the late 1940’s – have been largely ignored. These individuals have worked diligently to have their stories disseminated through the production of t his film and through the building of museums to remember their past. While they were often forced out of their country empty handed, leaving behind their ancestral homes and all their material possessions, they do not seek reparations or justice from those that caused their suffering. Their only request is for the world to hear their stories and acknowledge their suffering.
Emotional Harm – Many of these refugees discussed the status of ‘Dhimmi’ that was given to Jews throughout the Middle East. Though literally translated as “protected”, this status subjected the Jews to a culture of submission. Some rules include: Jews were not allowed to ride a horse lest they seem higher than a Moslem, their homes were not allowed to be higher than that of a Moslem, they were not allowed to build synagogues, and they were required to pay an extra tax for their supposed protection. While in some countries like Libya and Iraq, there were also violent persecutions and beheadings, in many other countries Jews were generally left unharmed and were integrated into society. Nevertheless, the refuges described how the constant verbal abuses directed at them left them20feeling worthless and unwanted. They lived in a constant state of fear, not being able to leave their country and not knowing what fate awaited them on any given day. These rules that were enacted to make them feel inferior have caused them life long emotional harm. Today, many year later, after their scars and bruises have healed, the emotional abuse has left a bitter, indelible reminder on their heart and soul.
Acknowledgment of Harm. Many of these refuges held out hope that peace can be achieved in the state of Israel but emphasized that there must first be a recognition and acknowledgment by each party of what they had done to each other. The Jews must recognize the Palestinians’ plight and  the long-term suffering  that they have endured and in turn the Arabs must recognize that the Jews similarly suffered while living and when later expelled from their respective Middle Eastern countries.  They must each recognize their right to exist and to have a place they can call home.