I recently had the pleasure of attending a talk given byChief Judge Alex Kozinski of the Ninth Circuit Court of Appeals. Chief Judge Kozinski is well known for hisexpertise in a number of areas of the law, including intellectual property andmedia law. He is also well-versed inpopular culture, and has written for numerous publications, including the NewYorker and Slate. The talk, which wasco-hosted by the Fordham Intellectual Property, Media and Entertainment LawJournal and the Center on Law and Information Policy, was entitled Cameras in the Courtroom. It focused on the debate that concerns towhat extent, if any, American courtrooms should use cameras to recordtrials. Critics of the practice say thatfilming can make actors in the legal system change their behavior. Witnesses may be more nervous, lawyers moreprone to showmanship, jurors more distracted. Proponents argue that cameras can actually improve the conduct of theplayers in court. Because they know theyare being watched, judges may be more attentive, lawyers more prepared, andjurors more focused. In fact, the latterview has been somewhat substantiated by studies that show that the positiveeffects of cameras tend to outweigh the negative effects. Even more than this though, those who arguefor cameras in court stress that they serve an important social function:providing the public with a window into the judicial system. Chief Judge Kozinski made a very convincingcase for this argument. The public, hesaid (quoting Judge Judy no less), pays a lot of money for its justice system,and has a right to know how it is functioning.
I found Kozinski’s discussion of the O.J. Simpson trialilluminating on this last factor. It mayhave been a poor idea to broadcast that particular trial, though we can neverknow whether lack of cameras would have had any difference with the circus-likeatmosphere that evolved. What we do know,Kozinski said, is that the jury would have ruled exactly the same way had thecameras not been there. If this had beenthe case, people in the public would likely have been able to justify theresult on the basis of the fact that they had not been there to see what thejury saw, and believed that they could not rightfully second-guess theacquittal. By being able to watch thetrial, members of the public were able to form an opinion about the judge, theprosecutors, and about Simpson that they would not have had otherwise. I think this is an important point. I am not saying that filming the trial was agood idea; I don’t know enough about it. It may well have added to the frenzied atmosphere, but a better judgemight have been able to control those effects. I appreciate though, that the coverage of the trial was able to givepeople an insight into the way the system works, or how it can fail.
In the past, trials were covered by beat reporters whogenerally were able to present the happenings of the trial in a relativelyobjective way. Those who wanted to keepthemselves abreast of developments could simply read the nightly updates. Now, with the explosion of blogging, tweeting,and other forms of communication, there is a barrage of reporting that goes onduring trials, a veritable play-by-play of the case. This might seem to support the position thattrials do not need to be filmed, because there is already plenty of informationbeing made available to the public. AsChief Judge Kozinski pointed out, however, this information is far fromobjective. Those with the strongestopinions tend to make their voice the loudest. While people are perfectly free to do so, the public is not left in aposition to decide on the merits of the case and the events of the trialthemselves. Cameras do what reportingcannot—provide people with an opportunity to make their own decision.
Chief Judge Kozinski’s talk provided interesting insightconcerning the benefits of filming trials. I found his answers to questions following the talk even morefascinating. One of the things hediscussed was how judges should decide whether or not to allow cameras in thecourtroom. Whe the Ninth Circuit wasdeveloping a pilot program to use cameras, they decided to initially limittheir use to civil non-jury trials. Iassume that their thinking was that the stakes are lower in civil trials andthat judges are less likely than juries to be influenced by cameras. As Chief Judge of the Ninth Circuit, Kozinskihad approved a plan in January to broadcast on YouTube the Proposition 8hearings, which were then occurring in the Northern District ofCalifornia. The Supreme Court struckdown the plan. Kozinski was careful notto say anything too derogatory about the decision, but he clearly thought itwas wrong. In his view, the Prop. 8hearings provided a perfect vehicle for the program. It was a civil case without a jury, it wasmostly a question of law, and perhaps most importantly, it was of tremendoussignificance. He argued that whether ornot one believes in Prop. 8, the decision to overturn the will of millions ofvoters is an enormous one. It is hard todisagree with the argument that voters should get to see the process by whichtheir collective decision is either overturned or not. I believe that showing the hearings onYouTube would have provided legitimacy to the justice system and would havebolstered public confidence as a result. Whoever wins the Prop. 8 battle will be buoyed by the outcome, while thelosers, whether or not they think the proceedings were fair, could at leasthave had a public record of the hearings.
I was reminded after hearing this talk about the importanceof openness in our society, especially as it applies to the law. Judges and juries wield enormous power in ourcountry, and it is important that we understand how they operate. Allowing cameras into the courtroom, at leastin certain occasions, increases transparency of the judicial system, and buildspublic knowledge and confidence. Mistakes and injustices would be more recognizable, and legal actorswould be held more accountable. As ofnow, most state courts have adopted cameras to some extent, as have a handfulof federal courts. The rest of thefederal courts should try greater transparency as well.
-Matthew Schenker

Stacy Sadove

There was recently a blog post regarding the “Good Wife”, a
new television drama starring Julianna Margulies. This show seems to
be a wealth of information regarding moral justice.  In another
episode entitled “Heart”, Alicia and her associate Will go up against
a health insurance company that refuses to pay for urgent in-utero
surgery for a couple. The insurance company argues that the surgery is
experimental and thus not unnecessary for the covered patient. A judge
is brought into the hospital for an emergency hearing regarding the
issue. The Judge is about to rule in the favor of having the surgery
and protecting the life of the fetus, when the insurance company
presents evidence that the husband had actually smoked a cigarette and
not provided this information to the insurance company prior to
ascertaining the policy.  As a result, the insurance company was able
to use a legal loophole and find that the contract of the insured was
null and void and thus the patient was not covered by insurance as a
whole.

Through detective work, the team ultimately discover that the
insurance company has an entire department devoted to finding reasons
why an insurance company should rescind a policy retroactively. They
are able to bring the insurance company in and settle with them to
cover the surgery for silence of not disclosing the branch of the
insurance company devoted to this practice.  This episode raises two
issues that we discussed in class. First,legal loopholes and their
role in preventing moral justice, and second settlements outside of
court and how they do not provide full justice.

In The Myth of Moral Justice, Rosenbaum argues that lawyers
will “do everything and anything to exploit the technicality” (Myth of
Moral Justice, P. 138). Here, the insurance company knowing that the
morally right decision would be to provide this couple surgery
searches and searches to find a way out of paying for the expensive
procedure. In fact, they create an entire department in their company
filled with investigators to help the lawyers discover technicalities
that will render policies void. This is clearly lawyers not seeking a
moral means to a legal problem, but rather using any and all means to
find loopholes to avoid the just and moral decision. Further, the
Judge even apologizes to the couple saying that this is not the moral
thing to do, but this is how the law is stated and that this is a
“simple contract matter”. Digesting a complex moral case involving the
life of an unborn child and the mother seeking desperately for a
surgery that will save the child is not a simple contract matter.
Minimizing the mother’s claim to such is insulting to her and her
family.

Secondly, the only way that the couple is able to eventually
get the surgery is by blackmailing the insurance company threatening
to reveal their secret department that is looking to make these
contracts void. Clearly this part of the insurance company is against
the morals of society, and society would be upset if they found out
that this department existed. To silence the lawyers and the formally
covered couple, the insurance company agrees to pay for the operation
in agreement of their silence. The settlement is a dispassionate
business deal between the attorneys. The couple involved is not
allowed at the settlement conference, nor are they allowed to share
their anger about how the company dealt with them or treated their
family. Settling a case is tantamount to saying that a victim’s story
was not important enough to tell in court, but rather should be
settled beforehand without full justice. The family expresses how
upset they are to their lawyers, but ultimately are showed as being ok
since they were able to receive the surgery. However, this portrayal
of the family being ok is most likely false. After going through such
a traumatic experience and ultimately not receiving full justice, how
are they to just be ok? Even if ultimately they did receive what they
wanted in the first place.

The episode “Heart” is misleading. While the lawyers end up
getting what they sought to achieve, and the family was able to get
the procedure there is a lack of full moral justice in the how the
whole experience plays out.  Did the insurance company have “heart”
when they agreed to settle. They never apologize to the family, and
never acknowledge what they are doing is bad. Rather, they settle as
to not cause a public relations disaster. I don’t think that there was
any heart shown here, rather another example of settlement and
loopholes on the part of lawyers to find a fast solution to the
situation.

Commissioner Bud Selig has commented in recent years that we are
witnessing a golden era in baseball. To support this claim he points
to record attendance numbers in ballparks across the nation. But there
is a shallow quality to his proclamation. We are barely a decade
removed from the rampant and unchecked abuse of performance enhancing
substances in baseball. And yes, the nation watched, in conscious
ignorance, as names like Mark McGuire, Sammy Sosa, and Barry Bonds
blasted homerun after homerun. There was excitement and lore behind
their run at making baseball history, even if the players’ hulking
physiques told a much darker tale.

Their bodies were truly the 600 lb gorilla in the living room that no
one talked about. Owners turned a blind eye and were content to pay
these men millions for their production. The baseball brass were
either helpless to stop it, and thus impotent, or content to let it
happen, and thus morally implicated. It truly is sad that it took a
congressional inquiry by George Mitchell to pressure Major League
Baseball into action. Now, as baseball cleans up its act and as more
and more players come forward, there are still many unanswered
questions regarding the status of records set by players who used
performance enhancing substances. Should there be an asterisk beside
Bonds’ 73? Should “roiders” be banned from the baseball Hall of Fame?

I believe that there should be an asterisk and that writers should not
vote “roiders” into the hall of fame. It is important to take a stand
and to refuse to memorialize players who sully the game. This is an
elegantly appropriate moral remedy for a crime against the game and
against every clean player who had their record broken by a cheater.

What’s worse is that two high profile names have yet to come clean
for their alleged violations. Arguably the best hitter and the best
pitcher of the modern era, Barry Bonds and Roger Clemens,
respectively, have been implicated as abusers. Let’s assume arguendo
that both are guilty of abusing banned substances. If true, it makes
their staunch legal opposition to the allegations seem laughable. If
true, it also is indicative of an unsavory part of American life: our
culture of defensiveness and denial.

It’s as if both men have a mental block in their skull that compels
them to listen to the counsel of some smarmy lawyer who believes that
avoiding legal liability is paramount, even at the expense of being
shunned by the community. Owning up to misdeeds totally and honestly
is the currency by which wrongdoers pay their way back into
respectable civic life. For example, compare the difference in outcome
between Roger Clemens, who lawyered-up and denied until blue in the
face, and Andy Pettitte, who simply admitted to using human growth
hormone in a press conference. Clemens is shamed and has virtually
disappeared from public life, while Pettitte simply took his lumps,
moved on, and is still pitching for the New York Yankees.

As a fan of the Yankees, I was upset with Pettitte for making such an
error in judgment. But publicly admitting his acts was the first and
necessary step towards regaining my respect and the respect of all
fans of baseball. Pettitte, in my view, made the wiser choice than
Clemens (this is assuming Clemens is guilty). Denial has a legalistic
and technical appeal to it because it makes proving the wrongdoing
more difficult and preserves Clemens’ paper legacy. But in the long
run it has been damaging to his character and to his place as a moral
and upstanding human being in society. The only price placed on these
values is the cost of swallowing his pride and admitting a mistake.
Some can swallow their pride and work to earn it back; others can’t.

Jeremy Sadkin

By Kuangyi Li

In class, we talked about law and morality and how a judgment can sometimes be legally right and morally wrong. Later, I came cross a case regarding Yahoo selling Nazi memorabilia. In 2000, The International League against Racism and Anti-Semitism (LICRA) sued Yahoo in Paris for hosting auctions of Nazi memorabilia. Yahoo’s US site had around 1,982 Nazi-related items for auction, including Swastika armbands, flags, hats and military decorations. The French court held that French law prohibits selling or exhibiting material with racist connotations and Yahoo should comply with French law and prevent internet users in France from accessing the auction. When the case came to US court for enforcement, US court denied enforcing French court’s order on the basis of freedom of speech.

I’ve always admired the freedom that this country offers. However, a question mark popped up in my head: Is this kind of freedom morally right? During the class on atrocity, we watched History Boys, in which we discussed how inappropriate it is to use holocaust as an exam question. Professor Rosenbaum said atrocity must be taken with humility and uncertainty; it’s a rule of moral decency. Thus, auctioning the symbols of the crime against humanity seems to be the greatest insult to the painful history and its victims. However, District Court chose to uphold the auction as protected by first amendment and refused to enforce the judgment by French court. I assume people with a little common sense would see how inappropriate the holding is. Yet, judicial system only makes legal judgment. This really demonstrated how insensitive legal system can be toward the moral universe.

Although there is no legal consequences from the court, Yahoo still had to face moral consequences from the public. It was obvious that the controversy gained a lot of criticism and has done great damage to the image of the company, so Yahoo eventually removed these auction items.

Last week in Queens, a homeless man was stabbed while saving a woman
from a knife-wielding mugger. According to reports, Hugo Alfredo
Tale-Yax was coming to the aid of the would-be mugging victim when he
was fatally stabbed and then collapsed on the sidewalk where he bled
to death over the next hour and a half. A surveillance camera
revealed that as many as 25 people walked by Tale-Yax, none of whom
called 911.

This story made me think of our class discussions of bystanders and
the duty to rescue. The law draws a distinction between misfeasance
and nonfeasance. Nonfeasance describes inaction that results in harm
to an individual and generally does not result in liability absent a
duty of care toward the injured person. The reason why we do not have
a duty to act/rescue is because an individual’s conduct is judged
according to an objective standard called the reasonable person.
According to the reasonable person standard, every individual has a
duty to act as a reasonable person would under the same or similar
circumstances. And according to the law, the reasonable, average
bystander would not act. The reasonable person test essentially
capitulates to mediocrity: the law asks no more of an individual than
to act as the average person would act under the same circumstances.
The failure to rescue is even worse than that – not only is there no
duty to rescue, but there is a disincentive to even try: the law
punishes the individual who attempts a rescue and subsequently fails.
The reasonable person standard reflects the law’s preference for the
body over the spirit. The law focuses on the cause of action: in
order for one to be held liable there must be a physical act, and a
causative link between the act, the harm, and the person being accused
of doing the act. In contrast, the bystander, by definition, is
merely standing by. The reasonable man’s preference is to deny the
significance of his behavior. The irony of this is that the bystander
in every instance is in the majority: there are always more people
watching the harm than committing the harm or being injured by the
harm. The bystander is the one person claiming to be impotent, but
arguably bystanders have more power: the very thing that allows them
to be bystanders – watching, denying the significance of their
behavior – operates under the assumption that even if the bystander
understands what the law is, he was not doing anything affirmative.
But is watching without acting not an act? Standing by may not be an
affirmative step, but one could argue that it is an act – it is a
conscious choice not to care. The reasonable bystander is a slippery
slope and poses a danger to moral virtue.

The incident in Queens begs the question, should those individuals be
held accountable for ignoring the dying man on the sidewalk? From a
strictly legal perspective, those 25 individuals who walked by
Tale-Yax acted as the “reasonable man” would act under those
circumstances: they were all bystanders and therefore, “innocent” of
any affirmative wrongdoing. According to the New York Post, no
arrests have been made and the police have yet to identify the woman
whom Tale-Yax was trying to save. If any of those passersby are
eventually identified, one can only hope that law enforcement
officials will take affirmative steps to send the message that such
“reasonable behavior” is in fact, unreasonable and criminal.

-C. Groobman

     I am inspired to write in response to our class discussion on
April 21st.  We discussed the German musician Furtwangler, who
conducted the Berlin Philharmonic during the Nazi era.  In a moral
world, musicians, artists, and ordinary people can be held responsible
for crimes committed under their watch.  By not protesting the Nazis
and by joining the Nazi party, artists can be held accountable for the
crimes of Nazis, even if they did not participate in killing. In the
case of Furtwangler, he was a member of the Nazi party but he never
killed anyone.  However, he can be considered an enabler of atrocity
because he conducted the Berlin Philharmonic every night for Nazis and
performed for Hitler’s birthday.  Although he was ultimately acquitted
of any crimes, he can be considered an enabler of atrocity by
providing music to the Nazis.  Music has the power to inspire, incite,
and bind people together into communities. In this respect,
Furtwangler can be considered morally culpable for furthering the Nazi
plan.

     In a moral world, Furtwangler could have starved the Nazis of
music and protested their actions.  He could have withheld his art.
Because art can nourish atrocity, shouldn’t artists be held
accountable since they hold this power?  Shouldn’t we hold him
responsible too for the atrocity perpetrated by the Nazis?

     The notion of artists being morally accountable for the actions
of those around them is a jarring notion, but one that has some logic.
As a professional musician (my career prior to law school), this
notion entirely contradicts what I have observed in other artists.
Musicians and artists are entrenched in the idea that “art is for
art’s sake” and they are not responsibility to or for anybody but
themselves.  To say that artists are morally accountable for what goes
on around them is a foreign concept to modern musicians.

     Ironically, another German conductor, Kurt Masur, has spent much
of his life trying to encourage young musicians to be morally and
socially responsible.  I had the fortune to perform under his baton in
2008 for his conducting institute. He concluded the week-long
institute with a speech that called upon musicians to take up causes
and use music to further certain ends.  As if he had taken a class
with Professor Rosenbaum, he explained that musicians and artists are
not merely passive observers, but can be held accountable for what
goes on around them in the world.  Nevertheless, his calling fell upon
deaf ears.  However, I was extremely moved by his speech.  Whereas so
many conductors today focus on playing notes and achieving accurate
rhythm, I found it refreshing and inspiring to perform under a
conductor who understands a larger role for art and music in society.

I honestly can’t remember the last time I thought about Dr. Kevorkian,
yet alone heard his name. At the height of his fame, maybe I was too
young to really grasp what he was doing, but all I remember about Dr.
Death is that he assisted many suffering people in ending their lives,
and eventually went to jail for doing so. I had the pleasure of
watching Anderson Cooper speak with Dr. Kevorkian last week and spent
an hour getting to know the man responsible for a lot of publicity and
debate in the ‘90s.

While I carefully listened to him speak about what he had done, as
well as how and why he did it, I was left with a somewhat empty
feeling. Perhaps it’s simply my nature, but I was skeptical of him.
He’s a man that gained fame by helping people die. Sure, these people
wanted to die, to end their suffering, to move on to whatever their
next step might be; however, I kept thinking that despite the
rhetoric, he simply found a niche market and was profiting from this
creative idea.

As I was leaving after the conversation concluded, I decided to turn
around and confront the man. I had to know. I waited in line long
enough to second guess what I was about to do, but decided to go
through with it anyway. Finally, after posing for pictures with the
Doctor, I informed him that he need not feel obligated to answer the
impending question, and I was not in need of his services, but I
wanted to know what he charged for his famed work. After the cameraman
was kind enough to rephrase this more bluntly, I received an
unexpected answer.

Nothing. Not one penny. Not even for the cost of the chemicals used.
He informed me that in some European countries, this service is sold
for between five and seven thousand dollars, but he believed to charge
to assist a suicide was “wrong and unethical.”

Shocked, I started to realize I might have Dr. Death all wrong. Maybe
he truly believed everyone was entitled to end their own suffering by
taking their own life, and he felt morally obligated to assist those
who could not help themselves. Not only did he put his career,
freedom, and life on the line to ensure those suffering had this
option as well as his assistance available, but he did so for
recognizable no personal gain.

This got me to thinking. If it is legal to stop taking medications
that treat a disease or disorder, and if doing so will probably result
in death, then perhaps suicide should be an allowable course of action
as well. Although it’s illegal, it’s difficult to legally punish a
successful suicide. Additionally, for many warriors throughout
history, suicide was often the noble way to die, rather than letting
an enemy take one’s life. Why now is suicide that ends one suffering
morally and legally frowned upon? One could say the suffering and
disease is the enemy and these people are looking for a noble and
dignified way to die.

Supporting this conclusion is the question: Why force someone to
suffer before death, rather than allow them to end their own life on
their own terms? To deny someone this opportunity doesn’t seem morally
right. Why should anyone be able to tell those suffering that they
cannot put an end to their pain their pain? This would be like telling
someone they cannot take medication to ease their suffering.

And if we recognize suicide as a remedy to suffering: What about those
who are unable to administer the deathly chemical cocktail themselves?
It doesn’t seem morally right that the only people eligible to end
their pain and suffering should be those that are able bodied and
strong willed enough to do it by themselves. Some people are in too
much pain that they can’t move. Others may have deteriorated
physically to a stage where they can’t move. It would be wrong to
prevent these people from having the same options as those that appear
in better condition. If these people carefully and thoughtfully made
the decision to end their life, why not let them have help in doing
so? Dr. Kevorkian mentioned that he only assisted suicides to help
those suffering to end their misery. Additionally, he provided for a
period of time to think about and reflect on this decision before the
suicide takes place. It appears that assisted suicide would be just as
morally justified in this instance, if not more so.

At one point, Dr. Kevorkian mentioned something most people would
agree with: A physician has a duty to ease suffering. In addition to
being ethically wrong, it seems morally wrong to force people to
endure pain and suffering. Different people try to end their suffering
using different means, whether that is through medication,
rehabilitation, or other forms of treatment. Why not let those who are
severely suffering choose a different means of ending their suffering?

Though Professor Rosenbaum’s class, we’ve learned that while it
usually doesn’t, we’d be better off if the law incorporated morality.
We’ve discussed an expanded notion of remedies for wrongs, but what
about an expanded notion of remedies for physical pain and suffering?
It seems morally justified to allow someone to deal with their
suffering in a way in which they choose. Perhaps changing what is
legally acceptable to incorporate what may be morally acceptable is
the right thing to do. In fact, I agree with Dr. Kevorkian: Perhaps
charging outrageous sums of money to help someone put an end to their
suffering and end their life would be the most morally wrong part of
euthanasia.

Although this conclusion is not one I expected to arrive at, perhaps
it is completely morally justified to allow someone to end their life
or seek aide in ending their life in order to prevent present and
future suffering. Now, if the FDA would just go through the approval
process to see if assisted suicide is safe and does what it’s supposed
to do, then the government may allow it…

-Justin Elliott

Just about two weeks ago, Justice John Paul Stevens announced that he would be retiring from the Supreme Court at the end of this term.

And just over two years ago at the Forum’s Conversation with America’s Leading Legal Journalists, ABC News Legal Correspondent Jan Crawford Greenburg related a humorous anecdote about Justice Stevens on the steps of the Supreme Court.