Archive for December, 2010

Forum in the ABA Journal

Tuesday, December 21st, 2010

Fordham Law’s Unique Film Forum Boasts a Cast of Stars—and Faces an Uncertain Future

Posted Jan 1, 2011 4:40 AM CST
By Wendy N. Davis

On a Sunday afternoon in October in New York City, a crowd is filing into the McNally Amphitheatre at Fordham University’s law school. There’s the expected assortment of law students and attorneys in attendance. But the 500 or so people in line also include media executives, retirees, 20-something computer programmers and—most strikingly—three women dressed in Mennonite outfits.

All are there for the same reason: The chance to view Sidney Lumet’s 12 Angry Men, along with an even rarer chance to hear U.S. Supreme Court Associate Justice Sonia Sotomayor talk about the movie, its effect on her decision to become a prosecutor, and the differences between trials in real life and their portrayal on film.

It’s not every day that a law school can lure a Supreme Court justice to watch a movie with a crowd of civilians during a film festival, but then this is no ordinary film festival.

Five years ago, under the direction of then-Fordham dean William Treanor, the school launched the film festival as the centerpiece of its Forum on Law, Culture & Society.

The unique, nearly weeklong event, which is free to the public, screens a variety of legal-themed movies that include a mix of current releases, classics, documentaries and indies—all with the intention of fulfilling the school’s goal of helping to illuminate the legal system to the public “along with all of its triumphs, failures, moral dilemmas and dramatic moments.”

But, for many, the allure is not so much the films themselves but the chance to hear—and discuss— the movies and related topics with noted artists, lawyers, intellectuals and others connected to each film. Over the years, the film festival has drawn such boldfaced names as right-to-die activist Dr. Jack Kevorkian, film director Peter Bogdanovich and First Amendment litigator Martin Garbus—all of whom have sat on stage with film festival director and Fordham law professor Thane Rosenbaum and engaged in freewheeling discussions.

“The key thing, really, is the guests,” Rosenbaum says. “Otherwise we compete with Netflix.”

NO LIMITS

Nothing seems off-limits. Take Sotomayor’s recent appearance. After viewing 12 Angry Men with the crowd—she chose the movie, Rosenbaum says—she and Rosenbaum engaged in a lengthy conversation that ranged from how the movie changed her perspective on juries to her determination to get a manicure at a local nail salon without being accompanied by federal marshals.

If it seems improbable that a law school perhaps better known for producing New York City prosecutors can pull off such a feat, then one need look no further than Rosenbaum for the Herculean effort.

Rosenbaum, a full-time faculty member at Fordham University School of Law and director of the school’s Forum on Law, Culture & Society, is a critically acclaimed novelist and essayist. His work has given him access to a vast network of intellectuals, celebrities and pop culture icons, as well as a Rolodex chock-full of contacts. He doesn’t hesitate to use it to draw marquee speakers to the law school for forum events, because he views it as a worthy cause.

“The forum observes the way culture and society have been influenced by the law,” says Rosenbaum, who conceived the program in 2002. “It’s a great way to address something in the broader culture that law schools never focus on.”

While Fordham calls its Forum on Law, Culture & Society “a public humanities program,” Treanor saw it as a way to leverage Rosenbaum’s network in order to raise the school’s profile within the larger New York metropolitan community—and to showcase Rosenbaum himself.

“The relationship between law and culture is an important issue,” Treanor says. “Because of Thane, we were in a position to become leaders on that.”

“Thane is really an extraordinary talent. He’s a very gifted novelist; he’s a wonderful teacher, a very interesting scholar,” adds Treanor, now dean of Georgetown University Law Center.

Also, says Treanor, the forum is fun. “It’s part of what Thane and I would call the ‘cool stuff initiative.’ It’s really exciting and it really energizes the law school community.”

For his part, Rosenbaum hopes the forum will be at least as entertaining as educational. “We always saw ourselves as competing with the 92nd Street Y and Carnegie Hall,” Rosenbaum says. He adds that he hopes people ask themselves after an event: “Is this a law school or a PBS talk show?”

In addition to the film festival, the forum hosts a series of “conversations” throughout the year where Rosenbaum and high-profile guests that have included novelist E.L. Doctorow, playwright Tony Kushner and actor Alec Baldwin discuss pop culture and the law.

AN OFFER YOU CAN’T REFUSE

Those Rosenbaum doesn’t know personally, he reaches out to. “It’s hard to say no to Thane,” Treanor says.

Others who have come to Fordham to speak at the film festival or at the speaker series have included movie director Barry Levinson, lawyer and author Scott Turow, and former New York Govs. Mario Cuomo and Eliot Spitzer.

Much of that track record is due simply to the force of Rosenbaum’s extroverted personality. Worse Than War author Daniel Goldhagen, a guest speaker at this past year’s film festival, recalls how he first met Rosenbaum.

According to Goldhagen, Rosenbaum became a close friend after a chance encounter at a bookstore almost 15 years ago. At the time, Goldhagen’s Hitler’s Willing Executioners had just been released, and Rosenbaum recognized Goldhagen from the publicity surrounding the book. Rosenbaum quickly struck up a conversation with Goldhagen and a friendship ensued.

Rosenbaum used those same networking skills to secure Doctorow and Kushner for the forum’s inaugural event in 2005: a discussion about the espionage case against Julius and Ethel Rosenberg. Both writers had addressed the couple in their works.

As with many of the guests, Rosenbaum knew Doctorow and Kushner personally from other cultural and literary events. That conversation, held at the Time Warner Center a few blocks away from the law school, drew a standing-room-only crowd of a few hundred people—including Sotomayor.

Rosenbaum says one reason he invited the Supreme Court justice to the most recent festival is because he knew she had attended the earlier Fordham Law School event.

A HIGHER CALLING

While convincing a Supreme Court justice to appear at a law school is the kind of thing that impresses attorneys, Rosenbaum appears far more interested in connecting with a mass audience than showing off for his colleagues. In addition to writing novels like The Golems of Gotham and Second Hand Smoke, he authors pieces for outlets like the Wall Street Journal, Los Angeles Times and Huffington Post and has served as literary editor for Tikkun.

After quitting his job as a litigator with Debevoise & Plimpton in 1991, he turned to teaching to anchor him while he pursued a second career as an author. “I wasn’t cut out to be a day-to-day practitioner,” he says. “I felt that there was a side of me that needed to be heard in a different way.”

With shoulder-length light-brown curls, a direct gaze and a dynamic speaking style, Rosenbaum—who bears more than a passing resemblance to a young Gene Wilder—easily holds an audience’s attention.

As a former law review editor and judicial clerk, Rosenbaum had the resumé to land a teaching position. “I didn’t think I was going to go off and write a novel and wait tables.”

He started teaching at Fordham in 1993 as an adjunct before landing a full-time position in 2001. The son of Holocaust survivors, he pitched the school a course about law and the Holocaust. Eventually he added other subjects to his repertoire, including law and literature, for which his syllabus includes works such as Harper Lee’s To Kill a Mockingbird, Charles Dickens’ Bleak House and Sophocles’ Oedipus the King.

His biggest critical success to date probably occurred in 2004, when the publication of The Myth of Moral Justice: Why Our Legal System Fails to Do What’s Right cemented his reputation as an expert on law and culture. The New York Times said Rosenbaum “set the terms of public debate” with the provocative book, which argues that the legal system does not always result in the truth coming out.

As head of the forum, Rosenbaum continues to explore how the law’s depiction in the movies—where everyone is seeking the truth—differs from real life, where cases often settle before litigants can even tell their stories to a judge.

“The movies very much speak to what’s absent in the law,” says Rosenbaum. “They speak to a longing for what courtrooms can be and should be, what lawyers can be.”

“The lawyers of our imagination become these protagonist heroes who are filled with a tremendous sense of responsibility,” he says. “It’s a very romantic idea—the lawyer who’s not just billing time.”

In fact, much of the discussion during the festival centered on the differences between the portrayal of cases in the movies and real-life trials. Sotomayor, for instance, said 12 Angry Men was “far from reality.”

Had actual jurors followed the example of Henry Fonda’s character—who conducted his own investigation by going to the defendant’s neighborhood and purchasing the same supposedly unique switchblade found on the defendant—there would surely have been a mistrial. “Certainly you don’t want them going for a walk late at night and picking up a knife from a pawnshop,” she said.

At the same time, portions resonated with Sotomayor. “I had never thought about juries and their functions until I saw this movie,” she said. One character in particular, an immigrant who worked as a watchmaker, gave a speech about the jury system that made an impression on the future judge. “It sold me that I was on the right path,” said Sotomayor, who served as a prosecutor in her early career.

Actor Jeffrey Tambor, who portrays an unglued criminal defense lawyer in And Justice for All, also appeared at this year’s film festival. During the post-screening discussion he remarked about how he worried during filming that the movie’s portrayal of the justice system was “too much.” So, he said, he went to a real court to watch the proceedings. While there, he happened on a case dealing with the theft of a turtle. The seriousness of the crime depended on the animal’s age—something that the lawyers were attempting to determine in court by counting the number of rings on the turtle’s shell. “I said to myself, ‘We’re going to be fine.’ ”

While figures like Tambor, Turow and other guests appear for free, the forum still shells out money for their travel expenses. Other costs include licensing fees, advertising, website hosting and the like. Initially launched with funds from the law school, Rosenbaum now raises money himself to cover the forum’s expenses, which run to $250,000 a year.

To secure funds, Rosenbaum reaches out to a variety of sponsors—including businesses like Whole Foods, Time Warner and HBO—and, of course, alumni.

Hugo Barreca, a 1997 Fordham Law graduate, was among the inaugural donors to the forum. He says he decided to contribute after another faculty member introduced him to Rosenbaum.

Barreca, who holds an undergraduate degree in comparative literature, says he’s interested in the “influence of narrative on our culture.” As an attorney, Barreca also is interested in exploring how stories about the law affect people’s beliefs about the justice system. “When people come to lawyers, to correct an injustice or to receive some sort of compensation for a wrong that’s been done, each one of those people is coming with an idea of what the law can deliver that has been pre-formed by a lifetime of consumption of media,” he says.

Despite the impressive roster of guests and positive press reaction—the 2010 film festival was written up in the New York Times and Women’s Wear Daily—the forum’s future with Fordham is uncertain because Treanor—its patron and protector—left for Georgetown Law in 2009.

Rosenbaum already is laying the groundwork to take the forum elsewhere, should the program fail to garner the new administration’s support. Rosenbaum says the forum recently became a not-for-profit corporation that can migrate to another school. He’s also in the process of setting up a board of directors.

While Rosenbaum says he finds it hard to believe that a new dean would dismantle the forum, given its success and reputation, he acknowledges concern about the possibility.

“If you’re a dean who thinks the law school is really about scholarship, this could be perceived as too public,” Rosenbaum says. “Too outside the primary mission of the law school. Too glitzy.”

View highlights from the film festival.

Wendy N. Davis is a lawyer & journalist in New York City.

The Makers of Music, and the Dreamers of Dreams

Monday, December 13th, 2010

Last night I saw a film called Inception, starring Leonardo DiCaprio
as a futuristic con man who breaks into peoples’ minds via their
dreams, tricking them into revealing their secrets and forfeiting
their own ideas. Working on a freelance basis, he makes his living
stealing the intellectual property of various people of importance and
then selling it to others. The film has been very successful, both
critically and commercially, which is probably due in large part to
the surrealist idiom in which it operates. But I think a lot of the
ideas in the film translate well into real-life considerations.
There are two techniques used by the thieves in the movie: that of
“extraction” and that of “inception.” Extraction is the process
mentioned above, wherin the target’s subconscious is accessed through
a process of shared dreaming. Once together in the dream, the target
is somehow manipulated into giving up the desired information. The
physical manifestation of this within the dream is usually something
along the lines of the target revealing the location of a safe, or the
combination to a lock. As far as real-world parallels are concerned,
this is obviously intellectual property theft; the information being
stolen is usually some form of idea, whether incipient or fully
realized, and represents someone’s original work. That much is pretty
straightforward.
The titular “inception,” on the other hand, does raise some
interesting questions, or at least to me; maybe to someone who knows
something about intellectual property law, there wouldn’t be many
questions raised. But to me these are still novel ideas and unanswered
questions. Inception is the process by which an idea is not stolen,
but rather embedded within the target. For example, in the film, one
person wishes to implant in another the idea that the latter should
dismantle their own industrial empire. The two men are competitors,
and it would suit the former very well if the latter’s company should
disunify, weakening its own position. Apparently, though, this process
is desperately tricky; the target’s subconscious nearly always
recognizes the foreign idea, rejecting it like a transplanted organ.
To make it work, the idea must develop organically within the target’s
mind; for this reason an idea can never be installed in its finalized
form. Instead it must be seeded; only the initial spark is provided
and the rest is left to occur on its own. If successful, the target
feels that the idea is truly his own.
This is where it gets interesting to me, because I wonder how we deal
with this phenomenon within our own intellectual property laws. It
seems to me that nearly every idea could be connected, in some way, to
some earlier idea. Of course, many of these connections would be
totally superficial. I’m sure many such connections have been
contrived over the years, artificially linking one person’s idea to
another’s, with the intent of diverting some share of the credit, and
the profit. And I’m guessing that’s where the courts come in: they
decide which connections are legitimate and actionable, and which are
frivolous. But where do they draw the line on that distinction? How
can they draw a line? That’s what really puzzles me. In the course of
writing this post, I tried to think of the last truly, entirely
original idea that I had. It wasn’t easy. In fact, near as I recall,
the only ideas I’ve ever had that had no external influence or
inspiration were those that came to me while I was dreaming. Now of
course these ideas were, without exception, worthless. Embarrassingly
worthless, to the extent that I don’t even want to give any examples.
But I think it’s telling that in the film, the only way to get the
target to believe that an implanted idea is credibly original is to
implant it while the target is dreaming. After all, this is probably
the time when we’re most alone with our own thoughts.
It makes me think of another movie I saw recently: The Social Network,
chronicling the origin and rise to international fame of the social
networking site Facebook. The movie explores, among other things,
the relationship between Facebook founder Mark Zuckerberg and fellow
Harvard undergraduates Tyler and Cameron Winklevoss. The Winklevoss
brothers had enlisted Zuckerberg’s help in developing their own social
networking site, Harvard Connection, several weeks prior to
Zuckerberg’s founding of Facebook, Inc. After offering some very
preliminary help with the Harvard Connection, Zuckerberg disappeared
completely, cutting off all contact with the Winklevoss brothers.
Several weeks later he registered the domain name
http://www.thefacebook.com, and
well, the rest is history. The Winklevosses later sued Zuckerberg in
federal court, claiming that he stole their idea for the website.
Zuckerberg did not deny his affiliation with the Winklevosses, nor his
awareness of the website they were working on. His defense didn’t seem
concerned with repudiating the notion that Zuckerberg’s site was, at
least in part, inspired by the Winklevosses’ website. Rather, speaking
to the opposing lawyers, Zuckerberg simply asserted that “if your
clients were the inventors of Facebook, they’d have invented
Facebook.” In other words, it doesn’t matter whether his site was
inspired by their site- his site is different, and it’s better. It’s
his own. The Winklevosses were clever and they had a good idea, but
Mr. Zuckerberg was cleverer, and his idea was better. And this again
raises the question of where exactly we draw the line. How do we make
the distinction between the theft of an idea and mere inspiration? And
if we can define the difference, how do we prove that in any given
case, the defendant was acting on one and not the other?
Being a young and wholly inexperienced law student, I can’t begin to
answer these questions. Yet as I watched the movie, I found myself
siding instinctively with the Winklevoss brothers; I was certain that
Mr. Zuckerberg did something wrong. I couldn’t give an intellectual
reason as to why, but the whole situation seemed wrong: it felt
unfair. This may have to do with the actor’s portrayal of Mr.
Zuckerberg, or the way he was portrayed within the writing. But I had
the unshakeable feeling that the Winklevoss brothers were wronged, and
that it would be decidedly unfair if they were to go uncompensated. Of
course, my legal intuitions don’t carry any weight, which is probably
good since they’re unlikely to be very accurate. But I wrote this blog
post, along with the other, with the hopes of highlighting the human
presence inherent in the courtroom, something that I felt was a
central theme in both Professor Rosenbaum’s courses and his books. The
jurists and legislators of our country try to maintain the law as a
rigid and purely academic entity, but the human element always creeps
in. No matter how we structure the legal process, it seems inevitable
that people’s feelings, emotions, and intuitions will assert
themselves. Maybe not explicitly; more often than not they probably go
unacknowledged. But I do believe they play a significant role
nonetheless. Professor Rosenbaum argued throughout the semester that
in general, there’s far too little humanity in the courtroom. It’s a
difficult subject, but overall I tend to agree. Either way, I think it
makes for a good discussion.

Constantine Mintas

Where have you gone, Joe DiMaggio?

Sunday, December 12th, 2010

In the medium-sized city of Pittsburgh, Pennsylvania, professional
football occupies somewhat of an elevated position. The locals
describe the city as being “a drinking town with a football problem,”
which is a bit of a reductive description but not entirely inaccurate.
As a native Pittsburgher and loyal Steelers fan, I’ve had a lot of
people asking me recently what I think of the controversy surrounding
Steelers quarterback Ben Roethlisberger. And it’s a good question,
I’ve realized, because it’s more difficult to answer than it really
ought to be.
The controversy in question concerns two separate sexual assault
allegations leveled at Mr. Roethlisberger inside of the past year. Now
of course, most people can agree that sexual assualt is wrong; if
either allegation is true then it becomes a lot easier to formulate
what I think of the situation, and what I think of Mr. Roethlisberger
himself. So that can’t be the heart of the question. The problem,
however, is that in neither case do we know for certain whether the
allegations are true. My understanding is that in both cases there was
minimal evidence to be presented, and ultimately it came down to the
word of the accuser versus the word of Mr. Roethlisberger. No concrete
evidence either way. So I don’t think the question is about asking
what one makes of the evidence either, as there really wasn’t much
evidence to consider. No, I think what people really mean when they
ask the question is this: on intuition alone, do you think that he did
it?
 People aren’t asking you to weigh the evidence, or consider the
testimony. They’re not asking for an informed legal opinion on the
chances either side has in court. They just want to know what you
feel, in your gut, is most likely to have happened. What do you think?
This is more a question of character and of instincts than anything
else; it asks you to consider the character of the accused, as best
you understand it, rather than any evidence either for or against him.
It asks you to use your intuition, your instincts, and give a consice,
self-assured opinion of what could or could not reasonably have
happened. And that’s why this question is difficult for me to answer:
I don’t really have any instincts when it comes to the character or
moral construction of Ben Roethlisberger. I know that he’s a good
quarterback. That he can be off-putting in interviews. I know that he
does good things within his community; he gives to charities, donates
his time to organizations that work with sick children, and has
involved himself with outreach to the homeless. He’s also experienced
a rash of minor scandals and bad press that threatened to alienate his
fans and sour his relationship with the city. But up until now he’s
always pulled out ahead. He is by turns brash, thoughtful, defiant,
and apologetic. We’ve seen him self-aggrandizing and we’ve seen him
self-effacing. His pro-level delusions of self-importance give way to
moments of genuine humility- transient as they may be. In other words,
he’s a lot like many other NFL quarterbacks. I may know a handful of
things about Mr. Roethlisberger’s public image, but I know very few
things about the man himself. None of what I know gives me a very
clear picture of how he would behave towards a young woman in a
nightclub. Without knowing him personally, it’s nearly impossible to
say what I really think of him.
And that’s what bothers me; when it comes to celebrity miscondcut,
people are so willing to speculate on things that they are generally
unqualified to speculate on. In fact, people are almost expected to;
the one answer that seems unacceptable to give is that I have no
opinion. I know as much about Mr. Roethlisberger personally as I do
about any other defendant in America, but I doubt anyone would hand me
a copy of a random criminal case with minimal evidence and ask me to
make a snap judgment. Maybe there’s a good reason for this double
standard, and maybe there isn’t. I’m really not sure.
All that being said, I find it hard to believe that this would happen
twice to Mr. Roethlisberger for absolutely no good reason.
Regrettably, I do think that in all likelihood he is guilty. Maybe not
guilty of exactly what’s contained in the allegations. Maybe even a
good deal of the accuser’s testimony is inaccurate. How could I know?
But either way, my gut reaction is that he’s probably guilty of
something. I’m just not sure why, and that’s what troubles me, because
I have a feeling that a lot of people feel the same way.
Constantine Mintas

Guns don’t kill people, but bad parenting just might…

Wednesday, December 8th, 2010

I am continually frustrated by those who use the law to avoid personal
responsibility. As reported by the ‘Huffington Post’
(http://www.huffingtonpost.com/2009/11/10/christopher-biziljs-famil_n_351732.html),
a family is suing a fifteen year-old for failing to provide proper
guidance for their eight-year old son about the uzi his father PICKED
OUT FOR HIM to shoot a gun show. The child died when the weapon
jammed, and he lost control of it. According to Wikipedia an uzi is
“open bolt, blowback-operated submachine gun.” I don’t really
understand what those words mean, but I KNOW that an eight-year old
shouldn’t be anywhere near …that. And I’m not remotely ready for
parenthood.

Further complicating the story, is the Massachusetts statute which
outlaws those under the age of eighteen from handling a machine gun.
Clearly, the fifteen-year old had no business handling an Uzi himself.
Perhaps, he will sue the organizer of the gun show who is on trial
for manslaughter due to this tragedy at the moment. (Let’s keep
passing the blame, shall we?) I see a never-ending chain of blame and
litigation, which is simply a poor substitute for responsible
parenting.

-EN

The Emotional Threshold

Monday, December 6th, 2010

Blog post – Oliver Edwards

In Dickens’ Bleak House, Lawrence Boythorn’s right of way dispute
fascinates me, because it remains unresolved; in fact, when Boythorn
offered to drop it following Lady Dedlock’s death, Lord Dedlock was
“so magnificently aggrieved… that Mr. Boythorn found himself under the
necessity of committing a flagrant trespass to restore his neighbour
to himself.”  Dickens suggests a legal process quite different from
the toxicity of Jarndyce v. Jarndyce, in the Dedlock-Boythorn dispute.
 Both participants draw strength, or at least amusement, from this
legal question.  How can they, when the law kills so many others in
Bleak House?  Perhaps they survive only because the dispute is
trivial; it concerns a piece of their property, and will not decide
the course of their lives.

               Daniel, in the Book of Daniel, also draws strength and
purpose from his investigation; but he is not bound by legal
procedure.  Oedipus’ trial maims and damns him, but also delivers him
from the uncertainty and fear of his unresolved, cursed identity.
Overall, it seems like there’s a critical threshold of emotional
complexity in the books we’ve read; if you exceed it inside the legal
system, you’ll create something you can’t escape from.  Below that
threshold, though, the law seems to work – it can handle a right of
way, or the smell of latkes.  If you want to find yourself, our
reading suggests, you’re better off on your own.

I Throw My Latkas in the Air Sometimes

Monday, December 6th, 2010

At the onset of this course we read a children’s tale “In the Month of
Kislev.”  Since it is currently the festival of lights I thought we
ought to revisit the story in a more cynical light.  To refresh your
recollection, here is a brief recap of the story:

The tale begins with a Polish community preparing for the celebration
of Hanukkah. One day, the children of a poor family stop under the
window of a wealthy family in town, and thoroughly enjoy the aroma of
potato latkas cooking in the kitchen. The children do this each day,
until the owner of the house discovers them under his window. Angrily,
the owner brings the children and their parents to the local Rabbi and
insists on being paid by the family for the enjoyment the children
have been getting from smelling the potato latkas.

A children’s tale is usually written to serve as a moral educator.  In
an important stage of cognitive development the story helps reinforce
right or wrong.  The natural course is for children to apply these
moral lessons to their actual world, but doing so complicates things a
bit.  For the sake of an alternative perspective let us complicate.

The author of goes out of her way to mention that the wealthy merchant
almost always turns down beggars.  The obvious character trait a child
will pick up is that this merchant is greedy, bad, and will naturally
progress to become the villain of the story.  But in our world, how
greedy is he really?  Naturally he is already at the 35% tax bracket
(39.6% if the Bush tax cuts expire).  If he lives in NY then his state
tax would be 6.85% on every dollar earned.  Collectively this usually
adds up to nearly 50% of all earned income donated to the government.

The wealthy merchant character depicts the elite wealthy class in this
tale, a class the author clearly aims to critique.  But the wealthy
class contributes the majority of tax revenue collected by the
government.  These taxes are used to fund a number of collective
goods, many of them being charitable organizations.  In reality this
wealthy merchant is annually donating 50% of his earned income to the
benefit of society at large.  Not to mention that the wealthy elite
are renowned for donating millions to charitable organizations.  See
Bill Gates, Sam Walton, Henry Ford, etc.  These are the innovators,
the entrepreneurs, the philanthropists.  Can you really imagine this
class of people denying a child food let alone the smell of food?

The beggar, on the other hand, is a free rider who is legally
untaxable (as are the parents of the latka smelling children).  So
when a beggar comes to the merchant’s door, is he still expected to
give even more?  Is 50% + not enough?  The obvious lesson a child
would discover is no.  The lower class is entitled to what the wealthy
person has because equality seems obvious in a world where everything
is given to you by virtue of other people’s love for you.  This is the
parent child relationship; this is the innocent and naïve world of the
child.

The key moral principle a parent would want a child to derive from
this story is not to be greedy.  But children are a lot more one
dimensional.  They won’t just pick up charity as a positive attribute
and greed as a negative.  They will pick up a hero who they will route
for; a hero they will idolize and want to strive to become, and a
villain who they will want to defeat.  So let’s ask ourselves who
would you want your child to grow up to be?  A wealthy merchant who
contributes to the collective good or a poor beggar who cannot afford
to feed his children?

Happy Chanukah

A World Without Lawyers

Sunday, December 5th, 2010

I am a Law student.  Have been for 3 years now.  That
means that I have been training myself in the practice of law by
studying past cases to understand how the law works.  And I gotta say,
the law doesn’t work well.  It takes time and money and if you’re
really lucky can serve a modicum of Justice.  But the thing about it
that I just can’t get over, that makes me roll my eyes whenever I
think about it, is that lawyers literally do nothing but gum up the
works.

Now, I’m a lawyer in training, so this may be a bit of a
strange position to hear me take but the blaring obviousness of it is
just too true to ignore.  What do we do?! What?!  I mean we tend to
know the Law better than our clients, we write up a heck of a lot of
papers, we argue in numerous clever ways but truly, do we do anything
that wouldn’t be done without us?

I imagine a world without lawyers.  A world where I can
write an agreement between me and my friend and if the Judge wants to
know what I was thinking when I wrote it, he asks me.  I imagine
guilty men explaining themselves to Judges who will decide whether or
not their actions deserve punishment.  I imagine two people with a
grievance trying to work it out on their own and, failing that, go to
a friend to judge which of them has the better claim and how to best
resolve it.

To me, it sounds like a nice world.  Where lawyers aren’t
fighting out every conceivable point.  Where the Truth is lauded.
Where Judges cease being mere regulators of courtroom proceedings and
begin Judging.  Where litigation isn’t the first choice of dealing
with one who has wronged me.  Where if I did something wrong, I don’t
conceal it through argument or discovery or suppression.  Where I
can’t win just because I can afford a better lawyer than you.

It’s an ideal world I’m talking about.  Can I really
expect people to do anything less than fight their hardest to win?  I
think that I can.  I think that when you get right down to it, people
respect Truth.  People want the Law – not to keep lawyers employed but
because they want some amount of order.  Maybe I’m crazy and the world
is right, the only way to deal with the law is to argue it to death.
I hope I’m wrong – but if I’m not, I hope that everyone might want my
world a little more.

Michael Zoldan

Shylock Revisited

Friday, December 3rd, 2010

“Shylock Visits The People’s Court”

By: Patrick S. Dorime

How many civil actions could have been prevented with a simple
apology? In Shakespeare’s Merchant of Venice, the reader is exposed
to a tortured Jew, Shylock, who seeks revenge on Antonio and his
Venetian posse. In demanding a pound of flesh, a monetarily worthless
remedy for Antonio’s default, Shylock embodies the ever-present plight
of most plaintiffs who seek legal recourse against former
acquaintances, friends, and relatives: the desire to be treated with
self-respect.
To the Venetian Court and to the Christian’s in the play, Shylock
fails the reasonable person test. After all, what kind of man seeks
the forfeiture of a pound of flesh as repayment on a defaulted loan?
Once we consider Shylock’s backstory and emotional complexity,
however, his demand for a pound of flesh makes perfect sense. It
seems likely that had Antonio treated Shylock with respect and offered
him an apology, the dispute would have never seen the inside of a
courtroom.
In the hit television show, “The People’s Court”, Judge Millan
brings her “sassy style of justice” to the bench. Plaintiffs march
into her courtroom demanding justice when former lovers refuse to
repay money leant to them, long time friends get into an altercation
and seek repayment for past gifts turned loans, and roommates are no
longer able to deal with each other cordially.
The People’s Court plaintiffs are Shylocks, emotionally complex
individuals seeking respect. In a dispute involving a soured
tenant-landlord relationship, the commentator stated in the
introductions that the defendants didn’t feel like they owed the
plaintiff anything, “not even an apology”. The tenant/plaintiff had
lived in the defendant’s apartment for fourteen years, and was seeking
to recover the money she spent moving. Judge Milan makes clear to the
woman that the court can’t help address her wrong, stating that while
it was sad she had to move out of the apartment she’d lived in for
fourteen years, this didn’t mean she had a legal remedy. The People’s
Court had issued its final judgment. The problem isn’t that the Court
was unable to grant the financial remedy; rather, like the Venetian
court it failed to even address the plaintiff’s actual complaint.

A Reasonable Man in South Beach

Friday, December 3rd, 2010

In some ways, to some sports fans, it will be bigger than the Super
Bowl, the Olympics or the World Cup. A night which will invariably
provide emotional vindication for some, and pour heaping servings of
salt on the wounds of others. Tonight’s (12/2) return of Lebron James
to Cleveland is the culmination of months of anticipation throughout
the sports world, and one that begs the question: how would Lebron’s
“decision” have held up in the moral court of Law and Literature’s
“unreasonable man?”
To be sure, nothing that James did last summer was illegal. At the end
of his contract term, he weighed his options and made a career move,
albeit one that essentially gut-punched an entire city. While he was
not contractually bound to his hometown, the larger question is, did
he have a moral obligation to stay? Was it a crime of morality to
abandon those who had poured their hearts, souls and paychecks into
supporting him? James obviously felt not, but several million Ohio-ans
would surely beg to differ.
James’s decision illustrates the distinction between the standards of
the reasonable and idiosyncratic, or unreasonable man. The former, in
NBA superstar terms, is required to play his heart out for the length
of his contract for whatever organization employs him as a player.
Consequently, the “common” Lebron had no obligation to continue his
tenure in Cleveland. The uncommon man standard, however, begs for a
consideration of more than just South Beach night clubs, warm weather,
and Bosh/Wade, in deciding where to take one’s talents; it invokes
notions of loyalty, sacrifice, and community.
While I am not saying that James should have eschewed the Miami offer
and stayed in Cleveland (Chicago still would have been the best
choice), I echo the thousands of talking heads who have stated that it
is not what he chose, but how he chose to do it, that was truly wrong.
All of America – except Lebron’s PR team, apparently – knows by now
that he effectively spit in the face of his Cleveland faithful on the
night of the disastrous “The Decision” special, taking his talents to
South Beach and his national belovedness even further south. But the
still unanswered question is how this media-savvy megastar with a team
of agents, managers and friends advising him, could have allowed for
such a classless move to be the defining moment (thus far) of his
career.
The answer, I believe, is that Lebron was unable to consider to the
two standards cited above independently of one another. He knew he was
passing the “reasonable man” test; he was, after all, doing nothing
technically wrong in leaving Cleveland. But therein lied his pitfall:
he felt that in making this decision, he was, across the board, doing
“nothing wrong.” This conclusion, in his eyes, permitted him to not
only opt for Miami, but to do so in unimaginably insensitive fashion.
The common man is largely concerned with what he does; the
unreasonable man considers both what he does and how he does it. The
latter axis never played into James’ calculus this past summer. Which
is why I join a nation of non-Miami Heat fans in saying, go Cavs.
-Elliot Buckman

The Backstory of a Professor

Thursday, December 2nd, 2010

I’ve just come from my last class as a student in Thane Rosenbaum’s
Law and Literature class. While the object of this blog post is not to
offer a critique of the class (though if asked I could offer my
recommendation of the class without hesitation), it still relates in a
way to the themes discussed in it.

The question that has piqued my curiosity increasingly throughout the
semester is what is Professor Rosenbaum’s backstory? Looking at
Professor Rosenbaum’s bio whether on this website, through Huffington
Post or even Wikipedia, one interestingly only finds his
accomplishments as a writer and professor. Yet there was a time when
he worked as Bartleby; he was previously a Wall Street lawyer, law
clerk to a federal judge, and editor in chief in law school.

I’m left to wonder what backstory has created the emotional complexity
in a man who, though he once stood at the door of the law, now
actively critiques the injustice found there.

-E. Jensen