Recently I began reading “Red Diapers: Growing Up in the
Communist Left.” The book is a collection of stories and poems
written by children whose parents were associated with various
communist organizations in the United States. While it is divided
into three distinct themes, I believe the most intriguing theme was
the documentation of the impact of political persecution on the
children of parents with communist ties, referred to as red diaper
babies. One of the articles was written by Robert Meeropol, Julius
and Ethel Rosenberg’s youngest son. The Rosenberg case was discussed
often in our Law and Literature course, especially during the Book of
Daniel discussion, and Robert’s older brother, Michael, graciously
spoke to our class and answered various questions.
In his article, “Carry It Forward and Pass It On,” Robert briefly
discusses the best and worst of what it meant to be a red diaper baby.
The worst included his family being torn apart, friends and relatives
refusing to come to the family’s aid, and the ordeals faced by those
who selflessly came to the family’s aid. However, his article
primarily deals with the good that came from their negative ordeal.
Robert wrote of those who came to forward to help despite great risk
to themselves and others who raised a fund for the children that
enabled them to obtain counseling and attend schools. Their
generosity and compassion helped the children to grow up with a
positive attitude toward people and life despite the efforts of some
who wanted to kill any semblance of the Rosenberg legacy.
Robert’s account hit home for me. Though I won’t get into
details, I had close family members who were unjustly persecuted by
the government and Robert’s account of encountering various
compassionate people in the process resonated with me. My ordeal
completely changed my life and there were many friends and family that
completely abandoned my family. Unfortunately, they allowed the media
hype and stories to create a negative image of my family members
despite their years of friendship and familial relations. It was sad
that they allowed themselves to believe that my family members were
capable of such actions. However, there were so many others who have
stepped up and shown their love despite the negativity they have
encountered. Much like Robert, my siblings and I have been blessed to
have been surrounded by wonderful human beings.

Sarah Floyd

Politics plays a major role in many aspects of American life,
unfortunately the legal system is not immune to this. There are many
examples, both in art and in real life where politics influences the
outcome of a trial or legal decision. While the legal system is far
from perfect, mixing politics into the law only makes it worse. In
one recent an American girl, Amanda Knox, was on trial in Italy for
murdering her roommate. The case was legally pretty weak, with no
real evidence tying her to the murder and the prosecution changed
their theory about the murder a few times. However, Amanda Knox was
found guilty. It seemed she had already been tried in the media with
extensive coverage starting with the day the murder was discovered and
continuing for over a year. The media twisted facts from her past to
make her seem like a bad person. Another aspect of the case was the
way the crime scene and investigation was conducted. There were
accusations from the defense that much of the evidence had been
contaminated, which the prosecution vehemently denied. It seemed that
the whole thing turned into a battle between the prosecution and
defense. The prosecution couldn’t lose this case because it would
make them and their investigation look bad, and it seemed the people
of the town of Perugia had already made up their minds anyway. It
became a political fight for the prosecution and perhaps even for
Perugia. Unfortunately a potentially innocent girl paid the price.
In the movie Mississippi Burning the murder of civil rights workers is
covered up by a small rural town in Mississippi that is caught in the
throws of the civil rights movement. It seems the entire town is
behind the cover up including the police department, with quite a few
of the officers being part of the KKK. Political pressure is one of
the motivations behind the cover up. It is a town that is fighting
integration and acceptance of another race and they are trying to make
the murders just go away. A couple of investigators wont let that
happen however and they eventually find the truth and the guilty
parties are punished, but this is another example of political
influence in the law. There are many other examples of politics
overriding the law, it is a problem found in life and imitated in art.
Politics influencing the law is something that should be taken
seriously and while there probably isn’t a way to prevent it we should
do our best to focus on the legal and not the political.

“I got a lotta problems with you people, and now you’re gonna hear about it!”

The first week back at work after the holidays is always tough.  After
having spent anywhere from 6 to 52 weeks waiting for the holiday
season, it passes in a flash and you’re left with the realization that
it’s January, it’s cold, and you have absolutely zero days off on the
horizon.   While Christmas and New Years Eve receive top billing in my
house, there will always be a special place in my heart for Festivus.

During a 1997 episode of Seinfeld, Frank Costanza revealed to the
world a holiday free of the commercialization that he believed ruined
Christmas.  Frank created Festivus (celebrated on December 23), and
along with this new holiday came new traditions and customs.  Carols
were replaced with “Feats of Strength,” and aluminum poles were
erected where Christmas trees once stood (Frank finds tinsel
distracting).  While Festivus is presented as a quirky invention of a
comically disturbed man, it also presents a compelling example of the
power of storytelling as a remedy for injury.

During the “Airing of Grievances,” Festivus participants tell each
member of their family every way they have disappointed them over the
past year.  While Frank uses this opportunity to tell off George’s
boss (“You, Kruger!  My son tells me your company stinks!”), others
can use storytelling as an effective remedy for injuries and
indignities.  In our every day lives we often fail to acknowledge loss
by friends and family in a misguided attempt to avoid upsetting them
further.  Go see John, but be sure not to mention the accident.  Give
Christina a call, but whatever you do don’t bring up her old job.

While these actions may represent the good intentions of caring
friends, they often fail to fulfill the needs of victims.  Loss is
never easily forgotten; on the contrary, victims and survivors work to
acknowledge and remember what has happened before they can move on.
Loss should be acknowledged in a moral society, and the “Airing of
Grievances” offers a platform on which a victim can speak of what has
happened to them and confront those who have hurt them.

For the non-Festivus participant who can’t find the proper platform
for storytelling in their life, the legal system should fill that void
as a venue through its laws and procedures.  However, the legal system
is often caught in the black and white realm of fact + law = justice.
While this conventional standard should remain, a more complete system
would also include a venue for storytelling through which participants
have an opportunity to address what our legal system is meant to
establish — truth.

So think about embracing Festivus in 2010.  I’ll get the pole out of
the crawl space…

Patrick McKegney

The events of 2009 brought to the forefront a host of challenging
issues that the government was forced to face.  Among them were the
financial crisis and the healthcare proposals that dominated much of
the public spotlight for the year.  Also, though, were the grievances
of September 11th that still lurked in the shadows of the legal
system, as victims and families quietly made their way into court.

The victims and families who appeared had waited nearly a decade for
the chance to have their day in court.  They had refused earlier
opportunities to receive monetary payment from the Victim Compensation
Fund, which was established in 2001 to compensate victims and families
for the economic losses they suffered as a result of the terrorist
attacks.  A number of individuals instead chose to bring negligence
claims against airlines and other parties for allowing the terrorist
hijackers onto the planes.  In the Southern District of New York,
plaintiffs asked Judge Alvin Hellerstein to hear their cases in order
for them to seek some truth and accountability for the tragic events
that caused them so much spiritual and emotional pain.

Although no case has thus far proceeded to trial, surviving victims
and families have appeared in court to settle their lawsuits for
damages comparable to what they would have received from the Victim
Compensation Fund if they had chosen to relinquish their rights to
bring claims.

Kenneth Feinberg, the special master of the Victim Compensation Fund,
stated that victims and families who took legal action were no better
off financially or emotionally than they would have otherwise been.
According to The New York Times, he remarked, “We encouraged people to
try to move on…‘Get it behind you.  Remarry.  Get a new life.  Don’t
live this for 5 or 10 years.’”  He held that the mathematical formulas
used to reduce the grievances of victims and families to numerical
values were proper remedies for individuals who sought material
restitution.

However, Feinberg overlooked the inner brokenness and damage that
remained for the surviving children, parents, and spouses of loved
ones lost in the September 11th attacks.  He failed to recognize the
moral dimension that demanded not simple monetary relief but rather
public healing, grieving, and restoration.  The surviving families
appeared in court in order to tell their stories on a human and
emotional level and to memorialize their interior pain and loss.
Irrespective of economic compensation, they sought moral justice for
the emotional wounds that still ran deep, more than eight years after
the World Trade Center attacks.

Despite the individuals who had their day in court, though, the
majority of victims of September 11th and their families received no
inner relief from the legal system other than monetary amounts that
undervalued their spiritual loss.  The law reduced their grievances to
the hostile division of the $7 billion in the Victim Compensation
Fund.  It ultimately offered a legal remedy that resulted not in
healing and restoration but perhaps in further breakage and pain.

The remaining parties look forward to the potential trials in 2010
that they hope will bring them some sense of moral closure and relief.

(E. Rathod)

by Laura DeRossi

On December 1, 2009, John Gotti walked out of a courtroom as a free
man. For a fourth time, a jury failed to come to a decision
regarding the charges against the head of the Gambino crime family.
Four separate groups of twelve people failed to find that a known
mobster was guilty (or not guilty) of federal charges of racketeering
and murder conspiracy.
This failure to convict a known criminal shows the problems of the
jury system, and the difficulty in getting twelve members of the
public to agree on a person’s fate. With mobsters it is often even
more complex. Often having enormous resources, both legitimate and
illegitimate, mobsters inspire hatred, admiration and most
importantly, fear. While there is a logic to having members of the
public, which the accused is assumed to have wronged, decide the fate
of the accused, there are also significant problems with this system.
As shown by the Gotti trials, juries can fail. While I am not privy
to the evidence supporting the charges against Gotti, I have little
doubt that Gotti is guilty of something, if not the current charges.
I am sure the majority of the jury members felt the same way.
However, when trying a man of such substantial notoriety as John
Gotti, the government and the jury have a problem. There are myriad
stories of the mob reaching out to jurors, attempting to influence
them with money or threats. Even when a juror is not approached, he
or she is often convinced that others have been. Therefore, the jury
system will never properly function so long as the accused holds such
influence over the very people who are supposed to impartially decide
his fate.
The Gotti trial is an example of the failure of the jury system.
While I do not know of a better system available, the one currently in
place too often fails to provide the justice that is sought by those
within the system. There is no morality in a system that allows for
jury tampering, or a system that fails to provide justice when a known
criminal is present in the courtroom.

Throughout the law there is an objective standard that is applied to
multiple situations known as the “reasonable person test.”  This
standard is supposed to help juries decide whether a defendant’s
actions make sense in a given situation.  Because people are so
different and often idiosyncratic, often the standard is not fairly
applied.  There are times, however, when the standard, at least in the
world of public opinion, hits dead on.

Over the Holidays Washington Wizards star guard, Gilbert Arenas,
thought it would be funny to bring three guns to the Washington
Wizards practice facility, lay them down in front of his teammates,
and joke about his actions.  The days after the fallout Arenas
constantly joked about the seriousness of his offense in interviews.
Not once did he take his predicament seriously, nor did he seem to
regret his actions.  Clearly, he believed because of his stardom, the
Department of Justice would ignore his clear violation.  But not only
were his actions not funny, how many people can bring a weapon to the
workplace and not get fired?!?!?

As a former professional athlete myself (NFL), I know that every year
before the season, the various professional leagues’ have meetings
with players involving gun ownership.  While Gilbert still may not
feel the full effect of the justice system, yesterday League
Commissioner David Stern laid down the law:

“Although it is clear that the actions of Mr. Arenas will ultimately
result in a substantial suspension, and perhaps worse, his ongoing
conduct has led me to conclude that he is not currently fit to take
the court in an NBA game,” commissioner David Stern said in a
statement Wednesday. “Accordingly, I am suspending Mr. Arenas
indefinitely, without pay, effective immediately pending the
completion of the investigation by the NBA.”

Gilbert Arenas has been suspended indefinitely and without pay!!  In
the land of public opinion most had already judged Arenas’ behavior as
idiotic and deserving of a suspension, but it’s not often that the
“reasonable person” test gets it completely right.

Too often public figures feel that they can get away with
indiscretions that others don’t have the power or influence to combat.
 I often feel that athletes are unfairly judged, however in this
situation, Arenas’ complete lack of remorse and his disgusting
attitude called for swift and stiff punishment.  Honestly, he should
have been kicked out of the NBA for at least a year.

I give Gilbert Arenas the Reasonable Idiot Award for ending 2009 with
a bang (no pun intended).  Even Tiger didn’t do something this dumb.

Submitted by,
Duvol Thompson
Prof. Thane Rosenbaum
Law & Literature Class
Fall 2009

–
Duvol M. Thompson
Juris Doctor Candidate 2010
Fordham University School of Law
708-650-3754

Since its enactment in 1994, “Don’t Ask, Don’t Tell’ (”DADT”), the law
banning openly gay, lesbian and bisexuals from serving in the United
States military, has resulted in the discharge of approximately 12,500
servicemembers.  Of those discharged, approximately 800 qualified as
“mission critical” specialists, a designation comprised of highly
trained individuals such as intelligence officers, medical personnel,
pilots and linguists. The cost to the U.S. military of discharging and
replacing servicemembers during its first decade alone has been
estimated at $364 million.  These economic costs, the military’s
recent difficulties fulfilling its recruiting quotas and society’s
evolving attitude towards homosexuality have prompted many
policy-makers, government officials, and military personnel alike to
question the logic of upholding the ban.

      Throughout its sixteen-year history, DADT has faced myriad
challenges from both legislative and judicial fronts, but to little
success.  Efforts to repeal the ban have repeatedly failed to garner
sufficient support and have stalled in Congress.  Similarly, efforts
to overturn the policy through the judiciary have proved equally
unavailing – that is, until very recently.  In its 2003 landmark
decision in Lawrence v. Texas, the U.S. Supreme Court, in recognizing
a liberty interest protected by the Due Process Clause for intimate,
consensual homosexual conduct, provided DADT’s opponents with a potent
new weapon with which to attack the law’s constitutionality. DADT
challengers found themselves armed with the persuasive argument that
Lawrence called for a heightened level of scrutiny under substantive
due process for laws concerning homosexual conduct and that DADT, by
targeting gay and lesbian servicemembers for such conduct, is
unconstitutional.

      To date, two circuit courts have handed down decisions in cases
challenging DADT’s constitutionality in the wake of Lawrence.  In Witt
v. Dep’t of the Air Force, the court acknowledged that Lawrence
required a heightened level of scrutiny in matters pertaining to
homosexual conduct but declined to rule on the merits of plaintiff’s
substantive due process claim, instead remanding it to the lower court
to develop the record.   In Cook v. Gates, the court similarly held
that Lawrence established heightened scrutiny but upheld the
constitutionality of DADT on the grounds that the government interest
was compelling enough to overcome a substantive due process challenge,
relying almost exclusively on the doctrine of military deference to
achieve this result.

      Both the Witt and Cook courts were correct in interpreting
Lawrence as having established a liberty interest in private,
consensual homosexual conduct protected by due process and subject to
heightened review.  As both courts pointed out, to read Lawrence as
doing otherwise would ring inconsistent with both the language of the
opinion and the precedents it relied upon in discussing the liberty
interests at stake.  While it may be true that the Court never
expressly used to the term “fundamental” to describe the protected
right, precedent has demonstrated that such an omission is not
dispositive of the Court’s intent.  Moreover, as both the Witt and
Cook courts observed, despite the Lawrence court’s discussion of
“legitimate state interests,” it would strain logic trying to
reconcile the Court’s decision to overturn the Texas statute relying
on rational basis since the government’s stated interest in
prohibiting “immoral conduct” likely would have been sufficient to
survive that constitutional challenge.  If the Lawrence court had
simply applied rational basis, it merely could have deferred to the
state’s rationale without inquiring much further into the impact of
the law on those affected by it.

      Whether these courts erred in applying something less than
strict scrutiny to their analyses of DADT is perhaps more debatable.
Both the Witt and Cookcourts immediately dismissed the application of
strict scrutiny as a possibility.  Neither court offered much of an
explanation for this position, save the Wittcourt’s observation that
the Lawrence court never expressly used the “narrowly tailored”
language of strict scrutiny analysis.  Indeed, even the Witt dissent,
which argued for strict scrutiny based on the Court’s treatment in
overturning Bowers, seemed to hedge its bets, conceding that even if
strict scrutiny were not appropriate, the Lawrence had intentionally
left this question open to interpretation.

      Given Lawrence’s seemingly intentional ambiguity on the subject,
the Witt and Cook courts’s determinations that Lawrence called for
something in between rational basis and strict scrutiny seems fitting.
After all, as both courts acknowledged, the Supreme Court had
demonstrated an openness towards gradations and flexibility in the
application of due process standards (e.g., in Casey and Sell).
Although both courts may arguably be accused of “playing it safe” in
opting for a middle ground approach in their due process analyses,
they were by no means stepping out of appropriate judicial bounds in
so doing.

      However, even accepting the Witt and Cook court’s determinations
that Lawrence required heightened review, a question nevertheless
remains as to whether these courts correctly applied that standard to
the cases before them.  In Witt, the court relied heavily on the Sell
case to craft a “heightened scrutiny balancing” test comprise of three
distinct prongs:  1) whether the statute implicating the rights in
Lawrence advanced an important government interest; 2) whether the
intrusion by that law on those rights significantly furthered that
interest; and 3) whether the intrusion was necessary to further that
interest.  Since the Witt court chose to remand the case for
development of the record, it is unclear at this juncture how this
test will play out in the end.  What is worth noting, however,
especially in relation to the approach adopted by the Cook court, is
that the Witt court clearly delineated between the state’s interest,
including within that rubric the court’s interest in deferring to
Congress on military matters, and both the proportionality and
necessity of the law’s intrusion on those affected by it.  Thus, while
acknowleging that this protected liberty interest must occasionally
cede to a state’s interest, the Witt court was careful to strike a
balance that would preserve that right if the law in question was too
invasive.

      In stark contrast, the Cook court, though also stating that it
was applying a balancing test inspired by Lawrence, failed to strike
such a balance.  Whereas under the Witt balancing test, the concept of
military deference was accorded some weight in determining the
relative importance of the state’s interest, Cook’s analysis accorded
this doctrine so much weight that it overwhelmed all other
considerations:  “This is an exceedingly weighty interest and one that
unquestionably surpasses the government interest that was at stake in
Lawrence.”

      It is odd that after spending so much time developing the
argument that Lawrence created a liberty interest in private,
consensual homosexual conduct, the Cook court then gave such
shortshrift to analyzing the intrusive effects of DADT on the liberty
interest of homosexual servicemember.  The court focuses almost
exclusively on Congress’s interest in controlling military affairs,
providing little to no counter-balancing argument.  Given this rather
lop-sided analysis, one cannot help but wonder whether the Cook court
utilized the military doctrine as a means of avoiding the clear
implications of Lawrence:  that is, that if subjected to heightened
scrutiny, DADT would likely have to be overturned.

      Indeed, there is a strong argument that the Cook court’s appeal
to the doctrine of military deference was inappropriate given the
constitutional context of the decision before it.  Although there are
some instances where judiciary’s use of the doctrine is clearly
appropriate, it is also generally recognized that, where an
individual’s constitutional rights are threatened, the judiciary often
has a to protect those rights.

      The now-infamous case of Korematsu v. United States is an
oft-cited example of how the Supreme Court failed to protect those
rights in deference to military policy.  In Korematsu, the Court
deferred to a military order forcing Japanese-Americans into
internment camps because military leaders had determined that they
posed a “threat” to national security.  However, significant evidence
exists indicating that many of the military commanders who supported
the internment policy were motivated not by genuine concern for
national security, but by political and racial bias.  Today, the
Court’s willingness to defer to the military’s intrusion on the rights
of Japanese-Americans is almost uniformerly regarded as a stain on the
Court’s record.  In relying on the doctrine of military deference to
uphold the constitutionality of DADT, the Cook court arguably commits
a similar transgression in allowing military policy to trample on the
liberty interests of gay and lesbian servicemembers.

Andrew Baroody

Despite my best efforts to find any redeeming quality in Quentin Tarantino’s film “Inglourious Basterds,” I found it to be worthless, offensive garbage.
In Human Rights, the Holocaust and the Law, we discussed the appropriateness of artistic depictions of the Holocaust. While this issue is complex, I can say with confidence that “Inglorious Basterds,” did not only fail to add anything of value to our understanding (even as a blatantly fictional work,) of the Holocaust, but also to nobly handle the topic. What movie-goers got, instead, was a shameful, atrocious circus of poor acting and over-the-top plot high jinks.
Others may contend that the film, with its fictionalized (even glamorized) band of American-Jewish soldiers running rod-shot over Europe scalping Nazis, is a triumphant re-imaging. I, for one, took no pleasure in this gory fairy tale. To imply that simplistic violence is an appropriate vehicle for revenge, reconciliation, or redemption for the Holocaust is disrespectful to the millions of people who suffered beyond comprehension during that period. Moreover, to utilize a comedic “slasher/western” film genre to depict a murderous Jewish resistance disrespects the memory of actual resistance fighters for whom the extermination of their people was no laughing matter. I doubt the fictionalized wanton killing of Nazis on the silver-screen would do anything to soothe the pain of Holocaust survivors or their families. No amount of copious Nazi blood splashing against Tarantino’s camera lenses will change history.
Although Tarantino’s film was probably not meant to provide any sort of solace to Holocaust survivors, that does not preclude the obligatory level of respect with which any artist depicting an event as horrific as the Holocaust should have. Humanizing almost every Nazi provided the movie with that extra tinge of banality found in many films where monsters are given a chance to appear as caring, complex emotional characters. I’m over it.
It may be argued that this re-imagining does not intend to undo wrongs done, or comfort those who have suffered. Some may say that such an outrageous artistic rendering allows us to look at this difficult topic in a new light, and that in itself is of value. While I agree that art (even highly fictionalized) can serve an important purpose in our understanding of painful historical events, such art must force the viewer to deeply question his or her understanding of the topic- the only appropriate goal being to challenge preconceived notions, and in doing so, enrich the discussion surrounding the topic. “Inglourious Basterds” is not this type of art. It does not challenge preconceptions; it does not present a new perspective. Tarantino proves to be a blunt instrument; he fails to understand that the Holocaust is not just another shameful moment in human history. His film does not treat the topic as a complex or difficult one. For him, it may seem to be simple irony: “but guess what, this time the JEWS kill the Nazis!!” He may not feel that his brand of outrageous cinema is bound to the same respect and reverence for unimaginable human suffering that other artists employ. He is wrong.

Avatar, James Cameron’s first movie since 1997’s $1.8 billion-grossing
“Titanic,” has become the second highest grossing film ever, according to
The Hollywood Reporter — giving the director the two top spots on the list.

The film is set in the year 2154 on Pandora, a fictional alien world
populated by an alien species called the Na’vi. Pandora is rich in a
valuable mineral called unobtanium. The film essentially revolves around a
paraplegic former marine named Jake Sully who controls a human-Na’vi hybrid
called an avatar. Sully works for the RDA corporation, which is on the
planet engaged in mining the valuable mineral reserves. RDA created the
avatar program to attempt to improve relations with the natives.

MOVIE SPOILER ALERT
As the RDA corporation continues its mining operation, Sully is placed in
the predicament of having to choose between alerting the Na’vi of the
corporation’s plans to displace them of their home, which happens to lie
over the largest unobtanium reserves on the planet, or staying faithful to
RDA -as part of his contract.

The question Sully faces is a classical dilemma of choosing between what
feels “right,” or following orders to simply fulfill previous agreements.
This is akin to the moral and legal worlds discussed in class. Sully may
decide to make the right moral decision but he will suffer the legal
consequences of it. The destruction of the Na’vi’s home, a rare large tree
connected to a network of trees on the planet, is also dependent on the
choice Sully makes.

Ultimately, Avatar being a mainstream-blockbuster American movie, the ending
is a happy one. Sully decides to save the Na’vi from destruction and the
audience walks out of the movie with a satisfying taste of revenge against
the evil RDA corporation, which has shamelessly killed innocent Na’vi
throughout the film in the pursuit of corporate profits. The choice made
feels like the correct decision. Sully saved innocent lives at the expense
of corporate profits.

Cameron is very careful not to paint Sully as a human traitor, which he
certainly is, but rather a hero of the Na’vi. It is difficult to hide this
face of Sully though. One of the core principles taught to marines
throughout their basic training is engulfed by two words — Semper Fi. Any
marine will tell you that to go against the Marine Corps, against any type
of direct order even, is a cardinal sin in the military world. Sully not
only went against direct orders by his commanding officer but he attacked
his own marines and the organization that hired him under the pretense that
he would fight for them.

One could make the argument that the pursuit of corporate profits can simply
never outweigh the value of life (human or Na’vi). This is true but couldn’t
the harvesting of this ultra-rare mineral also have saved lives due to the
possible uses that it may have in the human world back home? Taken in this
context it is possible that Sully actually ended up destroying more human
lives than the Na’vi lives that he saved.

Avatar is a great movie and I would highly recommend seeing it (especially
in 3D). I hope that when you walk out of the movie theater though, you don’t
fall prey to the mob consensus that Sully was in the right for having
betrayed his own people. Cameron wants us to think that the pursuit of
corporate profits is a power hungry monster that needs to be kept on a tight
leash but in reality the movie experience is really masking Sully for what
he really is, a complex character with great strengths and deep flaws.