Our body is always trained to be stronger. But we never trained our souls, our mental strength. We trained our soldiers to be tough, fast and able to fight using their physical strength. The truth is that when the time to fight comes, most of them use their mental strength, their motivation to fight, to protect and put their lives in great danger to save others has nothing to do with their physical strength. Did you ever think about what motivates a soldier to put himself in imminent danger under fire in order to save his friend? What motivated the 9/11 heroes to run in to the burning buildings when the natural instinct of survival was supposed to tell them to run out?
In my opinion, we all have mental strength which arises in us at extreme situations. That strength is motivated by our moral codes or moral principles, and enables us to be stronger then we really are, to be “larger than life” and deal with dramatic, complicated and dangerous situations, without even stopping and thinking about ourselves. We do what seems to be the morally right thing- saving others.

sivan duani

A few days ago I went to see a movie that is based on a
true story. The actor, Kenny Waters, was convicted first-degree murder
and sentenced to life. It took his sister, Betty Anne Waters, 20 years
to prove him innocent. He also spent 20 years in jail as an innocent
man. I did not feel excited when saw Kenny was set free on the court.
Instead, I am upset from the bottom of my heart. I could not help
thinking who is the person that should take responsibility for such a
wrongful conviction.

The law always judges people with the reasonable man test. In this
movie, we can see obviously Kenny failed to be a reasonable man. In
the pub, he got a fight with another guy in order to protect his
little daughter. Kenny’s daily deeds seem very odd in his community.
Only because Kenny’s daily deed is out of reasonable people bound,
when somebody was killed, he was the first to be doubt in that
neighborhood. On the court, from the result we can see the judge and
the jury do think Kenny is guilty, because in their eyes he is a man
who is easily irritated, and is very impulsive. Therefore, it is easy
for them to think he is the murder. He is irrational in their mind.

We also find in this movie that the politics trumps the legal. Kenny
became guilty due to their prejudice. The policewoman even paid
Kenny’s girlfriend to do perjury to prove Kenny did murder someone.
The policewoman got a reward because she did such a “successful” case.
In order to send Kenny to prison, the policewoman disregards her
morality and buys people to do the perjury. How much authority do they
have to manipulate the law in such a legal country?

20 years kept circling in my mind. I can not imagine how much
spiritual damage was pressed on the Waters family. In order to prove
Kenny innocent, Betty’s lifestyle was totally changed. As two boys’
mother, she applied for a law school. Therefore, she became the oldest
student in her class. She put all her energy to collect the evidence.
Her husband divorced with her. Her sons want to leave her and stay
with their father because they feel mom’s heart is not on them. Her
own family breaks apart. Let’s see Kenny. The DNA test proved Kenny
innocent. But the court will not accept it because the witnesses can
still prove Kenny is guilty. At this moment, Kenny totally gave up. He
tried to kill himself in prison. There is a scene in the final of the
film. When the judge declared on the court, “Kenny Waters, you are
free.” He said: “That is it?” To correct a mistake only needs a few
seconds, but it took the sister and brother 20 years to fight for the
truth. Yes, that is it. Because the law does not compensate on
people’s damaged soul and their hurt spirits. The law only cares about
the external, material and tangible things.

When DNA test proves Kenny was not guilty, but the court refused to
admit it. Betty told to her sons: “People just do not like to admit
they made mistakes.” Similarly, that policewoman won’t admit what she
did was wrong. Due to the statute of limitation, this police officer
does not get any punishment for what she did. I really feel that is
unfair. Will Kenny and Betty be satisfied with the result after they
suffered so much through 20 years? I found the legal system never
focuses on the internal, immaterial, and intangible things. Only the
moral justice can make up such defect.

—Shuying Wang

The world is full of stereotypes and generalizations some on point, and others completely off base. One such stereotype, which came up in the context of a class discussion several weeks back, was that Israelis were mentally tougher or more hardened than others, say Americans. While little thought is often given to understanding why this is, our class had an interesting conversation that shed some light on this generalization. Several weeks ago, our class was discussing shock, and the notion that, through television, media, internet and videogames people are becoming desensitized and depersonalize essentially the idea that society was becoming shock proof through overexposure to violence, pain and suffering. In much the same way, in Israel, the terrorist threats, bombs, and attacks, which have become a part of the everyday reality of life, have forced the Israeli people, in a sense, to become inert or psychically numb to these attacks, in order to survive. One simply keep being shocked, over and over again by the same thing to open one self up to the emotional rawness and mental anguish of shock, each time, would make life unbearable. So at some point, a protective mechanism develops and people begin to become immune, anesthetized and psychically numb.

The phenomenon of psychic numbing is not unique to Israel but occurs in every culture – it is simply the stimuli or scenario, prompting this numbness, which changes. For instance, why did our nation get more upset about the Michael Vick case then about other professional sports figures or celebrities who repeatedly drink and drive, or beat their wives? The answer is shock and our immunity to things, which occur repeatedly. DUI and spousal violence have become so omnipresent in our culture, that while the actions may themselves may be horrific, we are no longer truly shocked by them. In short, the word is one, which, through overexposure, our society has come to misuse. Essentially, we say we are shocked all the time, but in reality, we are simply using the word reflexively.

Madison A. Kucker

In Professor Russell Pearce’s article The Legal Profession as a Blue
State: Reflections on Public Philosophy, Jurisprudence, and Legal
Ethics­­­­­­­­­­­­­, 75 Fordham L. Rev. 1339 (2006) Pearce tracks the
evolution of the lawyer’s role of esteemed, virtuous public servant,
to today’s steely, amoral “hired gun.”  Where professional codes of
the past explicitly entrusted lawyers with no less than “the
preservation of society,” today’s Model Rules of Professional
Responsibility is the first ethical code to decline to give the public
good pride of place.

Catalyzed, ironically, by an egalitarian impulse (to preserve
individual autonomy against the paternalistic coercion of an elite
governing class of lawyers with their own, inevitably biased moral
vision), public political philosophy adopted an increasingly hard line
against the virtuous lawyer.  Pearce writes, “If the concept of the
public good did not exist, then lawyers could claim no special
relationship to it.  If all people were self interested, lawyers could
not claim to be above self interest.” Now, virtue consisted in a
lawyer’s checking her moral compass at the door and acting as her
client’s agent, a “hired gun” with as much moral agency as a 9mm.

However worthy the goals of protecting client autonomy and respecting
differing conceptions of the public good, the ultimate danger of the
hired gun conception is that lawyers, systematically trained in this
“client-centered” professional ideology, learn to ignore their own
humanity, and consequently that of their clients, in the end
undermining the client’s needs as a human being.  Chastised for
presuming to even contemplate the “good,” lawyers have lost both
license and inclination to meaningfully improve individual and public
life in the course of their ordinary practice. In an attempt to
maintain some moral legitimacy in the public eye in order to preserve
the profession’s historic privilege of self-regulation, the Model
Rules of Professional Responsibility exhort (rather than command)
lawyers to devote a certain number of hours to pro bono work, and the
historic moral aspirations of the law have been palmed off onto
“public interest” law, a relatively new and self-consciously distinct
field with a mission that used belong to the entire profession.

At the risk of being preemptively disbarred for my idealism, I call on
my fellow law students to consider riviving moral motivations in both
private and professional life.  The threat to client autonomy, in my
view, comes not from moralizing itself, but from clumsily disregarding
the particular moral value of individual autonomy.  The hired gun
approach is merely an equally clumsy inversion of the feared scenario
that motivated that approach in the first place.

By reclaiming our moral agency, we can serve our clients in a way that
will not only meaningfully improve their lives, but will improve the
quality of the law, the system, and society as a whole, in the process
earning back society’s confidence in lawyers and its esteem for the
role we play.

Fanya Cohen

                The most common criticism of the law is that it
operates in a cold and mechanical nature, blindly enforcing its
dictates while failing to adjust for unique situations that were
unforeseen at the time of its formation.  While judges are given
leeway in certain situation to adjust penalties to match their
respective crimes, all too often that leeway is limited or judges
simply fail to properly utilize it, and the result is a system of
justice that attempts to simultaneously provide both retribution and
rehabilitation but often fails to provide either.  The NFL does not
have this problem.  It tempers its rules with common sense and treats
each situation as unique.  This allows it to be nimble and adjust
accordingly.  The result is a system that both inside and outside
observers find to be exceptionally fair, even though it sacrifices the
certainty that comes with a strictly enforced wet of rules like that
find in American law.

                Contrast a case in which the law was applied in a cold
and mechanical nature, as opposed to its more understanding and
flexible alternative.  Keeping with the theme, let’s look at some
cases from the NFL.  First, take the case of Plaxico Burress.  Most
people know that the former star New York Giant accidentally
discharged a firearm in a Manhattan night club and was indicted for
criminal possession of a weapon and reckless endangerment.  Facing a
mandatory minimum sentence of three and half years, Burress accepted a
plea that involved two years in prison and two additional years on
probation.  However, many people do not know that Burress was carrying
the handgun in reaction to an incident that happened three days
earlier, in which fellow New York Giant wide receiver Steve Smith
abducted and robbed at gunpoint.  While Burress’ actions were still
illegal and put the public in danger, he was clearly reacting to a
special circumstance in which he, like many other players, came to
believe that he and other players were being targeted for such crimes,
and felt the need to provide himself with protection that the law
alone could not.  However, thanks to the mandatory minimum sentence
associated with the crime, the legal system could not adjust for these
special circumstances (and with Mayor Bloomberg out for blood, it
probably wouldn’t have anyway), and Burress was forced to accept a
plea in order to avoid the statutory minimum three and a half years.

                Meanwhile, down the I-95 corridor, Michael Vick pled
guilty to running an interstate dog fighting and gambling ring and
personally participating in the execution of dogs.  He was sentenced
to twenty three months in prison, one month less than Burress.  The
legal system was sympathetic to Vick because he was cooperative in the
investigation.  While both men committed morally reprehensible acts,
most would agree that Vick’s were significantly worse than Burress’,
yet they ended up with about the same punishment.  This was largely
the result of New York City’s crusade against handgun violence, which,
although a noble cause, forced the legal system to ignore the
particulars of Burress’ unique situation.  While Vick seems to have
left prison with a clear understanding of why what he did was wrong
and a certain understanding that his punishment was deserved, it is
unlikely that Burress will exit prison with the same moral
satisfaction because he was treated legally as a statistic, not an
individual.

                NFL rule enforcement does not suffer from the rigid
enforcement policies like the one used against Burress.  Take the
fight between Cortland Finnegan and Andre Johnson from last Sunday’s
game as an example.  Even though Johnson attacked Finnegan, pulled his
helmet off, and hit him in the face, neither player was suspended,
even though this was worst example of violence in the NFL in several
years.  The NFL choose not to suspend the players because Finnegan has
a long history of provoking fights, while Johnson is known to be a
reserved individual.  Even though Johnson clearly was the aggressor in
the altercation, the NFL considered the backstory of the two players
to better understand the incident, and ended up treating the situation
in a way that was opposed to what a rigid enforcement of the rules
would dictate, but resulted in what many believed the be the fairest
possible outcome of the situation.  The NFL’s recent implementation of
helmet-related tackling rules serves as another example.  Although it
has issued strict guidelines for what constitutes clean and dirty
hits, in enforcing these rules, the NFL has looked at the nature and
character of the hits and the players that make them, instead of
simply fining players whenever a particular hit technically violates
one of the guidelines.

Because the NFL does not have to deal with the separation of powers
found in our democracy, it can be nimble and flexible, adjusting to
particular situation to achieve maximum fairness and effectiveness.
The need for certainty in American law all too often prevents it from
achieving such lofty goals.  All hope is not lost, however.  Judge
Learned Hand’s decision in Hynes v. New York Central Railroad Company
(131 N.E. 898 (1921)) serves as a perfect example of how a judge can
use common sense to temper the rigid dictates of the law when their
hands are not tied by the legislature.  Lawyers may call this judicial
activism, but society just calls it common sense.  If it’s good enough
for our new national pastime, it should be good enough for our nation
as well.

-Jason Burke

While standing in line for the IMAX showing of Harry Potter & the
Deathly Hallows this Saturday, my boyfriend and I realized that it was
the first movie we had seen together in the year we had been dating…
because we are in law school, and yes, I realize that by writing this
I have copped to being a cultureless chucklehead Who Doesn’t Know
About Life… but I digress.

Thanks to Thane’s class, I am now incapable of viewing any fictional
portrayal of courtrooms or bureaucracy without the Law & Literature
analytic framework popping into my brain.

In the scene where Harry, Hermione and Ron infiltrate the Ministry of
Magic in search of a missing Horcrux, Harry enters a long corridor
filled with wizards at desks, mechanically assembling (with their
wands, obviously) pamphlets advocating the elimination of Muggle-born
and mixed-blood wizards from the gene pool. Ah yes, Josef K. in your
cramped corridor of bureaucratic hell, here you are in the guise of
Harry Potter, who is himself in the guise of a Ministry employee,
courtesy of Polyjuice potion. The scene takes place shortly after the
former Minister of Magic has been killed, and the evil Death Eaters
have taken over the Ministry in a flimsy pretense of government meant
to legitimate Voldemort’s eventual takeover.

A few minutes later, Harry rejoins Ron and Hermione as they interrupt
a secret hearing in a basement courtroom. The villain from the fifth
book in the series interrogates a half-blood Ministry employee, and we
know what her fate will be as the “defendant” from an earlier hearing
is taken away to some dark fate, declaring that they have made a
mistake, and he is a full-blooded wizard. Harry, again taking a cue
from Josef K. (mixed with a little of Artie Sternlicht) leaps into the
center of the room and cries out “You’re lying!” to the judge, who is
so startled at being confronted with the truth that the three heroes
manage to get the Horcrux, save the prisoner from what is sure to be
death or imprisonment, and flee the ministry.

If only for that one moment, moral justice trumps the legal, and the
political, even in the realm of the magical.

-MEH

Harry Potter And The Deathly Hallows: Kid’s Book No More

The Harry Potter franchise has sold over 400 million copies, been adapted by both video game and filmmakers, and can now boldly boast its own theme park in Disney World. By any metric, the franchise has been an unprecedented literary achievement.

Despite J.K. Rowling’s simple prose, Harry Potter is not a “kids” book as some are quick to dismiss it as such. My first reading of Harry Potter was defined by my youthful innocence and ignorance. However, my recent readings have been shaped by cynicism brought on by age.

To prepare for the recently released movie installment, The Deathly Hallow Part I, I recently re-read the book. I was struck by the opening epigraph:

The Libation Bearers
Oh, the torment bred in the race,
the grinding scream of death
and the stroke that hits the vein,
the haemorrhage none can staunch, the grief,
the curse no man can bear.

But there is a cure in the house
and not outside it, no,
not from others but from them,
their bloody strife. We sing to you,
dark gods beneath the earth.

Now hear, you blissful powers underground—
answer the call, send help.
Bless the children, give them triumph now.
—Aeschylus, The Libation Bearers

For those unfamiliar, The Libation Bearers is the second play of the Oresteia trilogy. Although not immediately clear on how it relates to the series — the idea of a blood-feud as it relates to the series is certainly plausible — its inclusion lays a dark foundation for the darkest book in the series.

Many moviegoers will flock to see the movie in the coming weeks, and I urge them to keep Gregory Stanton’s genocide paradigm in mind. In his briefing paper to the State Department, Stanton posited that genocide occurs through 8 stages of development: classification, symbolization, dehumanization, organization, polarization, preparation, extermination, and denial.

“Kids’” books and movies? I think not.

- ZM

            After pondering some of the concepts that were explored in
Thane Rosenbaum’s book, The Myth of Moral Justice, and his class, in
which I currently have the honor of being a student, I wanted to
assess some contemporary legal fiction from a “law and literature”
perspective. As we had just finished discussing Herman Melville’s
short story “Billy Budd, Sailor,” I was interested in the notion that
the court system, and the law generally, often overlooks the emotional
complexity and back-story of defendants in reaching legal conclusions.
Billy Budd, the well-intentioned but intellectually limited
protagonist of Melville’s story, exemplifies this notion. While aboard
a British naval vessel during the period of the Napoleonic Wars, Budd
is falsely accused of a mutinous conspiracy. Overcome with a confused
rage, he throws a punch, killing his accuser on impact. Consequently,
Budd is sentenced to death before a drumhead court, and the other
members of the ship are left almost completely in the dark as to the
truth of the incident.

            I was moved by the message that this story conveyed, and
when I decided to access an old episode of Boston Legal, I realized
that Melville’s concerns about the selective blindness of the law are
still important despite the passage of almost one hundred and twenty
since the publishing of his prescient short story. Typically praised
for its ability to confront underreported social and moral issues, the
episode “The Court Supreme” deals with some weighty controversies that
are very applicable to the concepts of law and literature. The plot of
the episode revolves around Alan Shore, played by James Spader, who is
given an opportunity to appear before the Supreme Court to defend the
case of Lenny Serra, a mentally challenged African American who was
sentenced to death for the alleged sexual assault of a young girl.
Before his appearance, Alan has a two-week period to learn the
strategies of Supreme Court. During this period, as he is practicing
before a “moot team” that specializes in the Supreme Court, Alan is
instructed not to mention his client during the appearance –
attempting to directly refer to the defendant is a “kiss of death”
because the High Court’s only concern is the constitutionality of a
state law. Incidentally, the law would permit the execution of
individuals who were not diagnosed with mental retardation yet had
significantly low IQ’s.

            Against the best advice of his highly seasoned moot team,
Shore decides to visit Serra in prison where he appears to feel that
true injustice would occur by sentencing this man to death. When Shore
finally appears before the Supreme Court, he begins like any other
experienced lawyer would address the Supreme Court – articulating
trends in case law, and developing legal syllogisms. However, after
some pushback from a terribly casted Justice Scalia, Shore unleashes a
heated dialogue against the Supreme Court that would make most law
students cringe. “Who are you people?” he proclaims, “You’ve
transformed this court from being a governmental branch devoted to
civil rights and liberties into a protector of discrimination, a
guardian of government, a slave to monied interests and big business
and today, Hallelujah, you seek to kill a mentally disabled man.”
After recounting the track records of each justice individually, he
argues that each was politically motivated in most, if not all, of
their decision.

            Very little is offered in the way of Serra’s back-story;
however, we do see him denying his involvement in the crime, and it is
clear from his demeanor that he is not mentally equipped. It is also
apparent that Shore suspects that Serra’s conviction was racially
motivated. As portrayed in Boston Legal, the Supreme Court’s inability
to explore the emotional complexity and its inevitable control by
political forces underscores the problems that exist with the American
legal system today – the same problems that Melville identified in
1891 with the publishing of Billy Budd. And the issues this episode
addressed are very real. Forty four people with mental retardation
have been executed since the death penalty was reinstated in 1976. It
was only in 2002, in Atkins v. Virginia,  that the Supreme Court has
ruled that executing the mentally retarded violates the 8th
Amendment’s ban on cruel and unusual punishment; nevertheless, the
issue is still at the forefront of legal debate.

Alex Franchilli

In re-watching the Spielberg movie Amistad during the Fordham Film
Festival, there are a couple scenes that stuck out in my mind now, as
a law student that didn’t make such an impact in my initial viewing.
When John Quincy Adams delves into the minds of the Africans, in
particular, Cinque’s, the main character, conquering of a lion
terrorizing his village, the audience and cast start to realize the
fabric and depth of the people they have been holding; that these
Mende people come from a high-context culture very different from that
of the Americans.

High context culture and the contrasting Low-context culture are terms
presented by the anthropologist Edward T. Hall in his 1976 book Beyond
Culture. It refers to a culture’s tendency to use high context
messages over low context messages in routine communication. This
choice of communication styles translates into a culture that will
cater to in-groups, an in-group being a group that has similar
experiences and expectations, from which inferences are drawn. In a
high context culture, many things are left unsaid, letting the culture
explain. Words and word choice become very important in higher context
communication, since a few words can communicate a complex message
very effectively to an in-group (but less effectively outside that
group), while in a lower context culture, the communicator needs to be
much more explicit and the value of a single word is less important.
(Wikipedia definition)

In recognizing the contextual import of the Mende stories and morays
the scene simultaneously drives home how dishonorable and
“low-context” American society and law was at the time. When the
lawyer Baldwin delivers the bad news that the case has been appealed
to a higher court and the Mende victory celebrations were premature,
based on their favorable lower court verdict. Baldwin explains to the
translator to inform Cinque that the law usually works, verdicts are
typically final, but sometimesthey aren’t. The translator explains to
Baldwin that there is no Mende word for sometimes; you either do
something or you don’t, and Mende laws don’t work just sometimes.
Cinque cannot hide his anger and frustration towards the duplicity of
white man legalities; he screams in his language, “What kind of a
place is this where you almost mean what you say? Where laws almost
work? How can you live like that?!”  This scene had a huge impact on
me, as to the lack of finality of the US legal system seems to go
almost unnoticed until a foreigner points it out.

EG

            As the holiday season approaches, there has already been
much ado about the new Transportation Safety Administration’s airport
screening procedures.  The TSA claims that the full body screens and
pat downs are necessary changes.  They appear to have been a reaction
to the “underwear bomber’s” attempted attack during the last holiday
season.  The public, fueled by the media, is claiming that they are
invasions of privacy that simply go too far.

            As a society, we have tacitly or explicitly accepted wire
tapping, water boarding, racial profiling, and the invasion of two
countries in the name of national security.  But a gentle pat on the
inner thing?  That is crossing the line.  Why can’t people be
consistent?

There’s certainly something to be said about such an
invasion of privacy, and the constitutionality of these procedures,
but let’s actually put aside the legal arguments for the moment.  I
believe this ultimately speaks to a bigger problem that the country
currently has: an unwillingness to sacrifice.  We want the government
to cut programs, but not ones that benefit us.  We want better, more
efficient government, but don’t want to pay more taxes.  We want to
succeed in two wars, but to not have those wars affect our everyday
lives.

            I am not sure where I come down on the screening process.
I just think it’s interesting people were so quick to accept other
measures put forth in the name of security, but as soon as they have
to sacrifice, it is just unacceptable.  Let the soldiers sacrifice,
let dark skinned people with beards sacrifice, and let prisoners of
war sacrifice, as long as I don’t have to sacrifice.

By Chris Fell