By: Amanda Jaffe
In our class, Human Rights and the Holocaust, Professor Rosenbaum
reminds us every week of the importance of story telling in achieving
moral justice.  Over the last few days Jews around the world have been
celebrating the Passover holiday, a holiday whose main purpose is to
tell a story of an injustice that happened thousands of years ago.  In
fact, the central aspect of the holiday is the Seder, during which the
entire story of the Passover is repeated so that current and future
generations are told and reminded about the story of how the Jews were
liberated from Egypt.

The significance of the Passover holiday is highlighted when
considered in light of the moral paradigm of justice.  Every year Jews
recount the story of their pain and suffering as a community as well
as their liberation.  This process allows for all of the injustices
that the Jews faced in Egypt to be addressed and witnessed by
generations to come.

There is an overwhelming feeling of catharsis that follows the Seder
for having retold this story.  Not a single person at the Seder table
was a slave in Egypt, yet we all feel somehow liberated for having
partaken in this ritual; we can eat the bitter herbs while we sit
reclining around a table.

Justice itself is a prevailing theme of the Seder as well.  We not
only tell the story of the liberation, but we also tell the story of
the ten plagues that the Egyptians suffered for the enslavement.  Each
plague levied on the Egyptian people is increasingly severe as the
Pharaoh becomes increasingly stubborn.  Finally, when the Jews are
crossing the Red Sea, the Pharaoh and his army drown, paying the
ultimate price for their cruelty.  The Seder ends with the song
Dayenu, which is a song about gratitude for being lead out of Egypt
and for the oppressor’s punishments.  This song emphasizes one last
time the importance of justice and, one last time, it retells the
story of Passover.

By: Eric Weinberg

Professor Rosenbaum often discusses apologies in his book and during
his lectures. Although apologies have enormous value and cost
virtually nothing to make, Americans do not know how to apologize and
fail to genuinely convey that they are accepting moral responsibility
for their actions.  Americans associate apology with a type of
weakness, and on the legal stage, people apologize because they have
to, not because they feel responsible to.

Bernard Madoff’s apology on March 12, 2009 is the model legal apology:
It satisfies the court and the legal system instead of satisfying the
victims.  It is far from the moral apology that would allow victims to
begin their healing process.  One victim said “An apology, a proper
apology, would have included a full confession as to who else was
involved, where all the money is, and there was nothing of that
nature.”

See “apology” here.
In legal terms, Bernie certainly accepts responsibility and outlines
his Ponzi scheme in detail, but the right apology would have done much
more.  First, he says he is “grateful for this first opportunity to
publicly speak about my crimes.”  This is total crap.  Make a video
and post your apology on You-Tube, send a letter to your rolodex of
victims from your Park Avenue penthouse, and wipe that shit-eating
grin off your face while doing so.  Do this in December 2008, not
March 2009.

The lawyer who wrote Bernie’s apology should be held out for public
humiliation.  The man is going to jail, admitting what he did, his
fate won’t change; make him discuss what went through his sicko mind
for the past 20 years.  Give us insight on the inner workings of this
man, rather than objective facts.  Force him to name his best friends,
to acknowledge specific lies he told them.  Make him apologize to the
family of Rene-Thierry Magon de la Villehuchet, who committed suicide
over this evilness.  A real apology would address the emotional harm
he has caused.  The lawyer is too obsessed with what should be done
legally instead of morally.

He apologizes to “Your Honor.”  What about all the Jewish wealth that
has gone down the drain? What about apologizing to all the Jews around
the world?  You preyed on your own people, in their synagogues and at
their social functions.

By: Katie Schmidt

Do news reporters have special moral responsibilities when they cover a
topic like domestic violence?  If the premise that “atrocity is
different” is true, they must.

It would be better for the public to know only the most basic facts
about incidents of domestic violence, then for the public to read a
cheapened version of an individual victim’s reality.  Victims own the
right to their story.  Bad reporting and sensationalization of the facts
distort and alter the victim’s truth, often without the victim’s
consent.  Indeed, almost every news story that involves domestic
violence is complied without any statement or narrative from the victim.

Take the example of Rihanna and Chris Brown.  For weeks after the
domestic violence occurred, Rihanna made no statement.  Yet “her” story,
“her” fear, and “what actually happened” was reported by every major
newspaper in America.  Even more problematic, Rihanna’s personal “story”
became “the story” for all victims of domestic violence.  As a result,
America was shown only the newspapers’ version of domestic violence,
which was wrapped and presented in a light that dishonored the
complexity of domestic violence, and failed to pay tribute the scale and
atrocity of domestic violence as a whole.

By: Rebecca Rotem

In evidence there is a rule that if a party (usually a defendant) makes an admission (to a crime, for example), that admission is admissible as evidence in court.  There is also a rule about admissions by adoption.  In that case, under Federal Rule of Evidence 801(d)(2)(B) the party to the case doesn’t make the statement – someone else who is not a party or agent makes the statement.  But, the party to the case somehow agreed with the statement and made it their own – that is called adoption and the statement can be admitted in court as an admission.
The problem is deciding what counts as an adoption.   The rule is, if a reasonable person would refute it, and the defendant didn’t, then it is admitted.  “A party may manifest adoption of a statement in any number of ways, including through words, conduct, or silence.”  United States v. Robinson, 275 F.3d 371, 383 (4th Cir. 2001).  The usual example is that someone accuses the defendant of a crime, and the defendant doesn’t refute it.  Does that count as an adoption?  Courts are pretty aggressive in looking for affirmative denials.  They err towards requiring affirmative evidence of denial and silence is presumed to be adoption.
In Law & Literature we talk a lot about the problem with the reasonable person standard, and how people are complex and idiosyncratic and that just because they aren’t the way a “normal” person would, that doesn’t make them guilty.  This admission by adoption rule seems to really harm a defendant would may not be guilty of having done the act, but for whatever reason, just chose not to respond to the accusation.  This is a harsh rule that admits the statement into trial as evidence just because the defendant didn’t refute it.  In Billy Budd, Billy was accused of treason and because he had a stutter, he could not verbally respond to the accusation.  Under our evidence rules, that might have been admissible as evidence into his trial by adoption.

By: Diana Uhimov

Drug violence in Mexico has recently been on an upward spiral, escalating almost to the level of a civil war.  The Mexican army has played a large role in attempting to put an end to trafficking but many soldiers are now deserting the army and instead turning to the drug cartels.  This phenomenon has been attributed to economic as well as security concerns among former soldiers.  Furthermore, corruption among public officials is widespread and presents a huge barrier to success in ending the conflict.

Much of the demand for the drugs distributed by Mexico comes from the United States.
Hence, the War on Drugs—a prohibition campaign—was declared by the US in the late 1960’s.  However, the history of the drug war demonstrates that our focus on beating the Mexican cartels will likely move the problem elsewhere in the region.  There is also widespread dissatisfaction with the substantial amount of resources dedicated to jailing drug users.  US drug policy has been very rigid, leading to imprisonment of people with minimal involvement or problems with drugs and effectively disregarding the subjective sphere and back story of the underlying social problems that fuel the trade.

In response to what they see as a failed battle, some politicians are now calling for revised policies that aim to diminish the demand for drugs.  Such policies would allow the legal system to be an instrument of human betterment instead of irresolution and bitterness.  Some have gone even further, advocating for legalization of drugs, based on the success in stopping gang violence that followed the end of Prohibition.  While legalization would alleviate the concern that our civil liberties are violated by rules that attempt to enforce healthy decisions on citizens, such a radical change may be more destructive than curtailing such liberties.

By: Nicole Bernier

The legal theory of the “innocent bystander” states that, if a crime is being committed, a person who is not involved the crime is not responsible for it.  The law reasons that if a person does not physically move, they could not possibly be the cause of the injury, and therefore cannot be held responsible.  Without some affirmative movement, the person is deemed innocent.  But, why is this so?  A moral person who sees something happening that they know is wrong could not simply turn their cheek and walk the other way.  That would be extremely soulless and depraved of sentiment from a moral standpoint.  Although the law generally deems it acceptable for a bystander to not act, morality compels a person to do more.

The 1988 film “The Accused” sheds light on this bystander dilemma.  The film follows a young woman who was gang raped in a bar.  During the rape, many people watched, others cheered and encouraged the rape, and other just ignored the commotion and went back to their drinks.  The way in which the movie portrays the rape makes the viewer angrily disgusted with every person in that bar.  How could anyone with a heart just sit there and watch while a woman is being stripped of her dignity?  The woman seeks justice against the men who cheered and egged on the attackers, who in the end came out guilty.  The movie therefore expands the meaning of an affirmative “act” to include acts of encouragement.

But what about everyone else who watched?  Anyone with a sense of morality would not be comfortable saying that these people were totally innocent.  So why does the law let these people believe they are not responsible?  In “The Accused,” out of a whole crowd of people only one person ran to the phone to call the police.  And even this person stood there for most of the scene.  What makes these people so indifferent that they do not help a victim when they are in the presence of a wrongful act?

The law seems to desensitize people in this sense: their standard of a “reasonable person” is very low, and it seems to not require a person to do much in these situations.  However, his is not in harmony with what a person should feel obligated to do morally. The problem with a person who sees something happening is that they believe they are powerless against the situation.  Some people are scared of getting involved for the fear of making matters worse.  A person who gets involved has then affirmatively acted and can be held responsible under law for further injuries. This obviously discourages people from acting affirmatively and is conducive to a feeling of detachment. Some states try to make up for this deviation from morality by enacting Good Samaritan statutes, which provides incentives for persons to get involved without being held responsible if they end up making the situation worse.  However, there is no need to even go that far.  A simple phone call alerting the authorities would be better than just turning a blind eye.  A bystander, witnessing a crime being committed, has the ability to change the circumstances, to discourage the person from acting, or to just call the police.  A person should do more than just look the other way in order to be considered “innocent.”

By: Josefina Valdez

In February of this year, one of the biggest events world wide took place: The Oscars!  On this night, there are several mediums for artistic expression.  There are several ways that artists in a wide array of industries are given the opportunity for exposure.  Everyone who is nominated, gets the exposure of the work from a film they were nominated for, screenwriters, costume designers, directors, all get acknowledged for their artistry, whether they win or not.  Others who are given the opportunity to express their artistry are fashion designers who can have a dress of theirs worn by an attendee down the red carpet gets exposure through their design, make-up artists who “doll up” the actors and actresses get acknowledged for their skill, the set directors who
arrange the stage and the carpet have the opportunity to reveal their talent, and journalists get the opportunity to cover the pre-show and post-show entertainment, asking questions that display their artistry.  Of course, there are simply the actors and actresses who, especially if they win, get another chance at expressing their artistry with the world.  There are also the musicians and singers and performers who highlight their skill during this event.  The amount of artists gathered in one place, and the amount of artistic expression is almost limitless during this one night engagement. And, in the midst of all of this artistic expression, there are several aspects of the law intertwined
amongst it all.  Contractual obligations would appear to be everywhere on that night.  There are contacts between the actor who wears the $10 million piece of borrowed jewelry (and the jeweler) and the actor who wears a designer’s dress and is obliged to mention the maker during interviews down the red carpet.  There is a contract between the television channel and the Oscar committee for hosting the event and televising it on a given date.  There is a contract that the host must abide by, and the contract governing his compensation.  There are contracts for the presenters in the show and their compensation.  There are the legal rules that govern the actual televised show.  Curse words must be bleeped out in order to air.  The winners must restrict their
acceptance speech to an allotted time.  The advertisers during the event have contracts as to cost for advertisement, and time limits of the advertisement.  Obviously, there would be an end to the pockets where the law places itself at this event, but it is wondrous how the law both assists, yet, restricts artistic expression at this one extravagant event.  There are the limits placed on the artist such as time and money, but the law helps to ease the procedure of dealing with those issues.  Though, not unique, The Oscars truly demonstrate how the legal sphere and artistry have an overlapping relationship.

By: Chris Leahy

Oedipus the King, Sophocles’ Athenian tragedy, highlights the moral imperative of historical justice, a concept often ignored by the traditional legal paradigm.  The play warns against the danger of burying truths.   Failure to acknowledge crimes, wrongs and injustices will eventually be unearthed, and return as poison and pathology.  In Oedipus, society brushes aside the murder of their king.  The crime is unresolved, and the result is a civilization in ruin suffering the moral consequences of their inaction.

We learn from Oedipus that while underlying crimes can be egregious, the wrong is oftentimes dwarfed by the failure to acknowledge what has occurred.  The traditional legal system operates in spite of the imperative of historical justice, working to keep truths hidden.  The legal mechanisms that girds truth seeking are numerous: confidentially agreements, attorney client privilege, plea-deals and settlements, and exclusionary evidentiary rules offer just a few examples.

The very public downfall of Bernie Madoff details the legal system’s dedication to thwarting truth seeking.  Two weeks ago, Mr. Madoff agreed with prosecutors to plead guilty to every count for which he was indicted, insuring he would spend the rest of his life in prison.  Many wondered why someone with considerable financial assets and nothing to lose would accept the deal instead of fighting the charges at trial.  The motivation, it seems clear, was to keep the details of the enormous Ponzi scheme in the dark.  Given the breadth of the fraud, most commentators agree it would be impossible for one man (and two accountants, who were also indicted) to effectuate such an elaborate scheme.  It is also widely known that Mr. Madoff employed family members and friends.  So while the public got Madoff’s head on a stick, the plea deal seems to operate to protect others who participated, choking the truth seeking process, and stifling historical justice.