By S. Montfort

On December 11, 2012 blocks away from Fordham University School of Law Brandon Lincoln Woodward was murdered execution style in broad daylight.  Brandon a 2003 graduate from Loyola Marymount University, a law student at Whittier Law School, and a father to his four years old daughter was a Los Angles man who booked a one-way ticket from California to New York. Police still have no idea what Brandon was doing in the city. Brandon has somewhat of questionable past because of his numerous run-ins with the law. Brandon had at least 20 arrests in the last 8 years on charges including cocaine possession, armed robbery, and grand theft.

In this mob-style murder, the killer waited for Brandon for about 30 minutes before he checked out of his hotel. Once Brandon arrived he checked his phone and walked around as if he was looking for an address. Brandon walked by the killer and instinctively turned around, but he continued to walk forward without paying the killer any mind. The killer then walked behind Brandon releasing one shot into the back of his head before fleeing in his get away car. The police believed he was lured to that location, but they have yet to find any suspects or reasons for this mob-style murder.

It is easy to look at this fellow law student and think that he may have provoked this horrific crime, but not knowing his back-story it is hard to come to that determination. I would like to know all the sequence of events in his life that led him to be sentenced to death by this unknown gunman. What were the events that led an individual or individuals to decide that Brandon no longer deserved to live amongst us? Was it emotional complexity, the lack of understanding of a potential idiosyncrasy that Brandon may have possessed, which led to murder? At this point no one knows.  Nonetheless, whether or not he fits into our societal norms of being “good” or “bad,” in order to receive closure, his family deserves to know who killed him and why.

By Rob S.

Last week in Washington, as fiscal cliff negotiations stalled and the deadline for a deal crept closer, Senate Minority Leader Mitch McConnell proffered a potential solution on the Senate floor. McConnell moved for a vote on legislation that would authorize President Obama to extend the national debt limit without congressional approval.  Apparently, McConnell’s intent was something other than passage of his proposal, because when Senator Majority Leader Harry Reid accepted the idea for a vote, McConnell did something extraordinary. He filibustered his own proposal.

Cut to Jimmy Stewart on the Senate floor in Mr. Smith Goes to Washington.  In the 1939 film, Stewart’s character uses the filibuster to orate with superhuman endurance, defending his innocence and exposing political corruption. The contrast with McConnell’s performance last week aptly describes how the filibuster has been perverted: a procedural mechanism once intended to ensure that debate over a topic could not be squelched, now a tool that can be invoked anonymously, without effort or public protest, or to prevent any discussion at all.

One recent development is senators’ use of the filibuster against motions to proceed, which prevents any debate on a bill.  It seems absurd, but this mechanism forces the senate to vote on whether to even have a discussion on proposed legislation. From a Law and Literature perspective, the procedural obstruction of public revelation is familiar.  In the courtroom context, plea bargains and evidentiary rules provide similar frustrations.

Over the last few years, filibusters have been used in record numbers with great consequence to the legislative process, but with seemingly little consequence for those who abuse the procedure.  One of the attractive aspects of filibusters of yore, epitomized in Mr. Smith Goes to Washington, was the demand for public attention and open discourse. In the past, a filibuster meant a senator’s commitment to speak at length on the record. At the very least, senators stood accountable when they wasted people’s time. Hopefully, with his unprecedented self-filibuster, Senator McConnell will move us closer to reform.

G.JeanBaptiste                                  

At Fordham Media & Entertainment Law Society Film Festival’s Opening Night, I was captivated by the first episode of the HBO TV miniseries John Adams. The movie told the story of a relentlessly principled man, bound in all his decisions by his love and respect for the law. Throughout the entirety of the movies, the episode took the viewer on a nerve-racking journey through the difficult decisions and complex mind of John Adams. However, even through conflicting emotions and tension filled scenes, the viewer was constantly reminded of Adams’ almost unnatural unwavering commitment to the law- the truth- regardless of the consequences.

His adherence to the law went beyond what many would consider an inherent human inclination towards self-preservation in the face of great danger. In deciding to defend the British army, against the advice and protests of his closest friends and family, Adams not only put himself, but his entire family directly in the line of danger. When he decided to take the side of what he defined as justice in direct opposition to the side of the yelling crowd – a crowd arguably justified in their anger, Adams literally chose the search for truth over his own life.

In my reading of Oedipus, that same unnatural drive to figure out the truth resurfaced. Even though prophets, his wife, and countrymen begged him to stop his search and leave the truth alone. Oedipus refused. Notwithstanding the consequences, Oedipus relentlessly surged forward to find out the truth – a truth that ended in the lost of eyes, the death of his wife/mother, and his exile.

If one is to believe, like Adams, that lawyers in defending the law are in fact seeking and defending the truth, then it is not tenuous to conclude that these two completely unrelated stories, have one mutual purpose: they are commentaries about the role and duty of truth seekers. They both make a blatant, imposing, and arguably daunting statement about true advocacy, about what it truly means to be lawyer.

All of my analysis, debating, and (admittedly) rambling, ultimately brings me to these complex questions about our profession:

Fellow law students, lawyers, and advocates for the truth, would you defend an enemy at great risk to your life and/or the lives of your family OR seek the truth against the will of your country and family when it most likely has dark, fatal consequences? Is a disregard for self-preservation in the hunt for true justice what it means to be a true advocate of the law? Is that even the standard we are held to today in our practice?

I am sure that both John Adams and Sophocles, the author of Oedipus Rex, would say yes. Assuming, for the sake of argument, that the defending the law is synonymous with defending the truth, what would you say?

By Lukas E.

Holocaust denial is illegal in 17 countries throughout west and central Europe. Across the Atlantic, where freedom of speech seems to be sacrosanct, that point sometimes seems to bring up confusion. As someone from a concerned country, I will try to explain. There are historical reasons why Nazism became a crime in some European countries, and there are reasons why it still remains one.

After World War II, Germany had a bit of a problem. Admittedly, it had more than one problem. But among short food supplies and an infrastructure that consisted mainly of rubble and craters loomed the question: What do we do with all the leftover Nazis?

The leading brass, the war criminals and mass murderers, went to Nürnberg and were dealt with. But they were only the tip of a big “Nazi iceberg”. There had been several levels of administration in all fields that had all been part of the regime, been associated with the Nazi party and had been functioning as well oiled cogs in Hitler’s Reich.

And beyond that, in the totalitarian state that was Nazi Germany, nearly everyone had collaborated with the regime in some way, oftentimes more out of fear, necessity, or for career advancement, than because of a belief in Nazi ideals. Imprison every collaborator, and you would have had to imprison everyone.

Who was how much of a Nazi was a pretty hard question to answer. This was complicated further; as my grandmother put it: “When the Allies came, there had never been any Nazis, only resistance fighters who cleverly had pretended to be Nazis.”

Long story short: Instead of cleaning up the Nazi mess, purging, imprisoning, and investigating, Nazism was made illegal from now on. With that the problem was considered solved. Nazis remained in high positions everywhere in Germany and Austria, they just couldn’t express their views in public. Since nobody wanted to talk about the war, remember the war, or stir up any trouble, that was seen as a good solution (until the late 1960s).

That’s how the criminalization of Nazism and Holocaust denial came to be. So why is it still there?

Because currently, there are very few good arguments for abolishing it. The only good reason is referring to the basic principle of “freedom of speech”.

But Nazism has left its mark in many European legal systems (and European minds) when it comes to that. Many Europeans don’t subscribe to the concept freedom of speech the same way that most Americans do. A more (central) European definition of freedom of speech would be: “Everyone should be allowed to express his opinion, unless he does it in a way that disturbs public peace, by degradation or defamation of a group.”

Many people here agree that freedom of speech should end when you become literally Hitler. “We don’t want it. We don’t need it. It doesn’t contribute anything useful. It can be damned dangerous. Let’s keep it illegal.”

There is also a political dimension: The people who want to abolish those laws, are almost exclusively on the far right. Usually they don’t particularly care about freedom of speech, unless in this special case.

And those who do care about freedom of speech, and are subsequently not on the far right, generally do not dare to touch those laws, since they most probably will be labeled as Nazi sympathizers.

By Marc Switzer

Israel has been living under fire now for four years—full stop.  Rockets have bombarded Israeli town and cities a ridiculous amount of times outside the context of a full scale war between two nations. In fact, I don’t believe there is precedent in history for the situation that has developed between Hamas and Israel in the last five year.  A sovereign nation’s citizens are being attacked by heavy military grade weaponry on a regular basis without being in outright state of of war.  The patience Israel citizens have displayed under this barrage of terror is truly astounding.

Israel under any notion of morality and/or international law has a right to defend herself from these attacks—full stop. However, that said, as sad as it is, I truly don’t believe that in defending herself militarily—(i.e. Troops on the ground and air strikes) Israel will ever be able to bring about a situation where a military deterrence alone will end the rocket and or terror attacks.

Hamas fights asymmetrically—Israel must respond asymmetrically.  Strategic military goals and thinking will not work in an asymmetrical war—full stop.  History in this respect has many precedents to draw on—from the Romans in Spain to the English in South Africa.  Asymmetrical war demands a different type of response.  What this exact response should be I don’t pretend to know, however I do think I have an idea of what the broad outline would look like.  First, it would start with attacking Hamas’ power basis, the support it receives from the general public.  Second, it would involve international support, countries not just from the West but East as well.   Finally, it would be a war fought on ideas and conceptions of freedom and political organizations whose front line would be the educational institutions in the territories.  Only an asymmetrical response will truly be effective in my opinion in ending this unbearable state for Israel and the Palestinians.

By Reed Kristovich

Herman Melville’s short story Billy Budd addresses the themes of law, executive power, and the balance between them. The common fear shared by those in power is a loss of control. Those who desire a break from control will ruin stability for all others; a stability that once lost is difficult to recollect. The isolation of the ship in Billy Budd, the Bellipotent and the threat of a mutiny on board emphasizes the dangers of loss of control. In such a remote and concentrated setting, order must be maintained to insure the safety of all.

Billy Budd, pressed into serving on the Bellipotent, is illustrated as an innocent and well-liked character known as the “Handsome Sailor.” He was good at his job, friendly with the crew, and posed a threat to no one. Being an honorable and good-natured man, Billy Budd was distressed and agitated when Claggart accused him of trying to instigate a mutiny. Instead of defending himself, Billy Budd is overtaken by frustration and desperation and resorts to the basic human instinct of self-preservation.  He hits his accuser, killing Claggart with a single blow.

The difficult matter of executive power and justice rests in the hands of Captain Vere.  As the leader of the ship, Captin Vere’s main responsibility is the safety of his men and conducting justice.  Ideally, justice is blind and those who commit crimes must be punished for them. Captain Vere must undertake the difficult task of upholding justice and exercising executive power to maintain order on the ship.

After witnessing Claggart’s murder, Captain Vere immediately calls together a tribunal to discuss Billy’s fate. With an accusation of mutiny presented by Claggart, Vere’s personal judgment was forced aside and his role of captain made paramount. Whether Billy Budd was planning a mutiny or not, he needed to be punished for Claggart’s murder. If the ship’s captain appeared to show favoritism or weakness in the face of handing down justice, it could have been disastrous for the sense order on the ship. It was Captain Vere’s duty as the executive and the enforcer to use Billy Budd’s crime as a warning to those threatening to disrupt the law and order on the Bellipotent. Although he liked Billy Budd for his good work ethic and kind demeanor, he did not show favoritism in the proceedings. Captain Vere did not allow his personal opinion of Billy Budd to interfere with the execution of justice. Billy Bud was punished for murder in keeping with the naval code of laws to which all on the ship are subjected.

Knowing that lawlessness leads to chaos and destruction, Captain Vere makes the difficult decision to use his executive power to bring immediate justice to Billy and avoid the danger of a mutiny. Captain Vere convicted Billy for killing another man, a choice he had to make to maintain order on the Bellipotent.  His choice was not a popular one, but it was necessary to maintain justice and order.

By L.S. Hallgren

I had been thinking about love and sex for a long time, long before Daniel and thick-thighed Phyllis brought their cruel comes and electric brutality to my attention. It could be said that Daniel’s neanderthalistic observations of his wife, with all her robust breeding qualities and fleshy rolling tundras, are the result of his attempt at love. Perhaps Daniel is limited, damaged by the execution of his parents and subsequent lack of a childhood. I could agree with that. I would be willing to accept that Daniel might actually, in a broken, unclean way, love Phyllis. The real problem for me is that he doesn’t just like rough sex and a little smacking around. Daniel likes to hurt. Daniel likes to scare. Daniel likes to push the accelerator down and force Phyllis to take her pants off with their child in the backseat. The point was raised in class that masochists believe they love the person they torment. That may be true, but there are a few problems with applying that philosophy here. First of all, a masochist believing they love someone is not the same as loving someone. People believe a lot of things about themselves; that doesn’t make them true. Secondly, someone that is into masochistic sex most likely didn’t marry someone that’s not into that or at LEAST a little curious. Phyllis just seems scared of Daniel; she does what he wants out of fear, and usually because Daniel has waited until he has some kind of leverage before he makes his demands (the car, the child, her approaching orgasm).

There is a vast gap between, “Because I love you, I will let you tie me up and film this even though it’s not really my thing” and “you’re scaring me to death and endangering our child so I will do what you say.” One is love and one isn’t. My personal, unsolicited position on this is that Daniel isn’t capable of love. I think he uses sex and her vulnerability as a way of distancing himself from Phyllis. It’s much easier to be brutal than tender. Daniel’s worst tends to come out right at moments that require the most vulnerability. Making love to his wife (in any style), sharing a tender moment with his child in the park, and feeling an erotic desire for a little roadside action. But when it comes down to the wire, Daniel doesn’t soften, doesn’t bury himself in her femininity. He burns her. He frightens onlookers. What if, and this thought just occurred to me, Daniel does love her but just can’t allow himself to feel it? Perhaps his murderous tendencies are a knee jerk reaction to an emotion he is attempting to suppress. It’s just a thought.

I’m all for a good time, but I don’t think a desire to hurt and cause fear is part of any loving relationship, sexual or otherwise. Am I over thinking it? Does any of it matter anyway? As Tina Turner once said, “What’s love got to do with it?”

By C.P.

Here’s an idea: Instead of letting Jared Loughner (the 23 year old who killed six people and wounded 13 including former U.S. Rep. Gabrielle Giffords during a shooting spree in Tuscon) plea to life in prison, the government should have made Mr. Loughner stand trial.

Many people might think that this is a preposterous suggestion.  Some might ask, “Why should Arizonians be forced to endure a difficult and potentially lengthy trial?  Isn’t it better just to put this matter to rest as quickly as possible?”  Others might attack the usefulness of a trial by pointing out “a trial is not going to bring those killed back from the dead.”  Attorney General Eric Holder and U.S. Attorney for Arizona, John Leonardo gave these explanations, respectively, when asked to comment on Loughner’s plea deal. (http://usnews.nbcnews.com/_news/2012/08/07/13163448-jared-loughner-pleads-guilty-to-tucson-shootings-avoids-death-penalty?lite)

Although a trial will not bring the dead back to their loved ones, it might help the victim’s families deal with the pain of this tragedy and bring restorative justice to the community.  Even though our criminal justice system does not value it, there is a restorative power to letting a victim tell their story.  Plea bargains, however, value efficiency and expediency over truth.

Without a trial, there is no record of what happened that day according to the victim.  A plea bargain produces no story.  Although we all know what basically happened that awful day in January of 2011, we don’t have an official public record of the story from the perspective of the surviving victims, and we should.  Should we put a premium the type of justice in our criminal-justice system that focuses on punishing Loughner over a justice that seeks to heal victims’ wounds and have their stories head?