By Jennifer S. Kang

“The greatest task before civilization at present is to make machines
what they ought to be, the slaves, instead of the masters of men.” ~
Havelock Ellis, 1922

Since the dawn of the Industrial Revolution, many have caught on to
the (rather intuitive) idea that “the role of humans as the most
important factor of production is bound to diminish in the same way
that the role of horses in agricultural production was first
diminished and then eliminated by the introduction of tractors”
(quoting Nobel Prize winning economist Wassily Leontief).

Up til now, however, there was generally enough to go around and we
have been working, rather unsuspectingly, alongside our machines.
Moreover, we have grown to love them, as technology has undeniably
increased our efficiency and productivity, thereby improving the world
(at least to a certain degree).

(Alan Greenspan maintaining that “hundreds of millions of people have
been pulled out of poverty of extreme poverty and starvation,
basically because we have competitive markets”).

But the 2008 Great Recession has changed all that.  For the first
time, growth and employment in the US are starting to diverge; GDP is
up, but employment is still down. In fact, the average duration of
individual unemployment is nearly twice that of any previous postwar
recovery period.  And the proportion of working-age adults with jobs
is at its lowest level since women began entering the labor force in
significant numbers.

In advance of November, joblessness is clearly a hot topic in American
politics.  But the debate continues to focus on traditional contexts
like international trade (e.g., more protectionism!) and national
energy policy (e.g., drill baby drill!).

Little seems to be said about the fact that in the legal industry, for
example, the right software can enable one lawyer to do the work of
500.  Or the fact that IBM’s supercomputer, Watson, recently flounced
the two most accomplished human contestants in Jeopardy’s history, by
means of its (or, er, his?) new pattern recognition software that
mimics human cognitive processes with incredible speed and accuracy.
And certainly, little more is said about the facts that (1) “companies
binged on new equipment and software” in recent years, even as
unemployment rates remained so high;
(2) companies are reporting record profits, even as mass joblessness
continues; and (3) U.S. corporate chiefs now earn more than 400 times
as much as their lowest-paid worker, in comparison to 40 times as much
in the 1970s.

It seems that in this day and age, there is almost nothing we can do
that machines can’t do better.  Plus, they are often cheaper in the
long-run, and certainly more committed than we could ever be to our
jobs.  Furthermore, they are (apparently) fluffing executive salaries;
as someone else put it, “machines work for free, but their benefits
end up in someone’s pocket.”
What does this all mean for us, and more importantly, for the
fundamental problem of distributive justice in the 21st-century?
Shouldn’t we at least be wondering?

By Marissa Levy

In today’s world, we’ve become accustomed to a distinct
separation between the morality we exercise in the public sphere, and
the morality we exercise in our private lives. Most professionals
today don’t apply the same moral criteria to their day jobs as they we
to do those in their personal lives. Society judges our morality by
how we act at home, not by what we do in the office.

Atticus Finch is the ultimate character to reject this moral
division. In To Kill a Mockingbird, Atticus is firmly committed to
exercise the same level of morality both inside and outside his home.
He states that if he doesn’t take on Tom Robinson’s foregone case, he
would lose his moral authority as a parent and as a member of his
community. The recent scandal involving University of Arkansas head
football coach Bobby Petrino is the perfect example of what happens we
stray from the example set by Atticus Finch.

Petrino, a married man with four children, was revealed to be
involved Jessica Dorrell, a 25-year-old former Arkansas volleyball
player and recent football department hire, when Petrino crashed his
motorcycle on April 1st with Dorrell as his passenger. Petrino
originally reported riding alone, but as more details came it light,
it became clear that not only did he cover up that she was his
passenger, but the two have been in a romantic relationship for a
significant amount of time. To make matters worse, Petrino and Dorrell
were allegedly romantically involved when he recently hired her for a
job in the university football department, over 150 other candidates.
Needless to say Petrino also failed to disclose his relationship to
Dorrell when he made the hiring decision.

To be fair, what Petrino does in his private life is none of our
business. He may not exhibit Atticus Finch’s rigid morality at home,
but that’s Petrino’s choice to make. His extramarital affair should
not be splashed across national headlines for the sake of the
infidelity. But the problem becomes thornier when Petrino’s private
moral shortcomings taint his professional behavior.

According to attorneys familiar with the case, “(g)iven the broad
scope of this morals clause [in Petrino’s employment contract], the
University arguably had the right to consider Petrino’s recent conduct
as ‘cause’ for firing him…by failing to disclose their relationship
when recommending her for the job with the department, thereby giving
her an unfair and undisclosed advantage for a position on his football
staff.” Moreover, “Petrino’s employment agreement states that he was
prohibited from personally supplementing the compensation of any
football program personnel. If the published report that Petrino gave
Dorrell $20,000 is true, that act would have been an additional
violation of his contract,” reported Forbes.

The Petrino scandal is the perfect example of the hypocrisy
between the distinction of our moral behavior at work versus our moral
behavior at home. Why should the former get a free pass? Shouldn’t the
standard we’re judged by be one and the same? Perhaps if Petrino had
followed Atticus Finch’s example, he wouldn’t be out of a job today.
Kudos to the University of Arkansas for recognizing the value of
morality in the workplace.

By Jeremy Richmond

Gary Bauer, former Republican presidential candidate and head of the
conservative non-profit group “American Values,” recently penned an
op-ed criticizing the Obama administration for its efforts to “recast
the [healthcare] debate as an argument about fairness and empathy.”
Bauer faults Solicitor General Donald Verrilli’s statement during oral
arguments that many Americans with existing medical conditions would
be rendered uninsured if the Supreme Court struck down the bill. Bauer
does not take issue with Verrilli’s factual claim, instead, he argues
that the real-world effects of striking down the healthcare bill
should be irrelevant to the Supreme Court’s consideration. In Bauer’s
view, the “human element” of the healthcare bill is entirely unrelated
to its constitutionality; even mentioning the effects on American
citizens of declaring the bill unconstitutional is cause for
consternation. But in making this argument, Bauer ignores our legal
system’s most basic goal: to give justice to living, breathing people
in the real world.

Bauer expands the scope of his criticism, arguing that Obama
fundamentally misunderstands the legal system because he believes
“just outcomes are superior to legal outcomes.” Bauer declares that
this belief has been evident since the beginning of Obama’s
presidency, when Obama said that Supreme Court justices should have
the “empathy…to understand what it’s like to be poor, or
African-American, or gay, or disabled or old.” In Bauer’s opinion,
justices should not consider “fairness” or “justice” when making
judicial decisions; courts should instead reduce complex conflicts
between real human beings to the simplest kind of legal formalism. But
justice is an American value. Fairness is an American value. And it is
disgraceful that the head of a group calling itself “American Values”
would like to remove these principles from the legal system entirely.

It should not surprise the reader that Mr. Bauer graduated from law
school. Only a lawyer could say that the President believes “just
outcomes are superior to legal outcomes’ and mean it as an insult.
Just outcomes are superior to legal outcomes. When the legal system
fails to deliver just outcomes, it fails to do its most basic job. In
my experience, the chief complaint among people who have contact with
the legal system is that it failed to give them justice, and instead
applied formal legal rules that did not capture the reality of their
situation. Judges should aspire to make legal decisions that do
justice in the real world. And in making those decisions, they should
be empathetic towards the parties. They should recognize the impact
that their decision is going to have in the real world and strive to
deliver a decision that is fair. And yes, for the Supreme Court, it
would mean recognizing the impact that striking down Obama’s
healthcare bill would have on people who depend on it for their
medical care. This doesn’t mean the Court must uphold the bill, it
simply means that they should realize that their decision will impact
real people in a real way, and should consider that in making their
determination. Achieving justice would be impossible otherwise.

By Daniel B.

As news trickles in about the forthcoming revival of Arrested Development, the mid-2000s cult-hit comedic television series starring previous Forum on Law Culture and Society’s guest Jeffrey Tambor among others, we can take the opportunity to reflect on the shows potent if lighthearted take on the state of the United States legal system. In particular, the show touches on problems with the US practice of plea bargains as well as the role politics can play in shaping legal outcomes.

The show follows the downfall of the Bluth family following allegations of misappropriation of corporate funds from the Bluth Company, within which they serve as controlling shareholders and members of the board of directors. The family’s patriarch, George Bluth Sr. (played by Tambor), is arrested on a variety of white collar crimes as well as “light treason” for allegedly conducting business with Saddam Hussein.
In “Altar Egos”, a stand out episode from season one, George Bluth Sr. is quickly approaching trial and the prosecution has offered him a plea bargain. By the morning that the trial is set to begin George Bluth’s attorney has failed to even read the terms of the plea due his recent time commitments with “getting back into the dating scene.” The Bluth family fails to read the terms of the plea as well, for similarly outrageous reasons. Yet despite this George Bluth Sr. expresses his desire to accept the prosecution’s offer.

One motivation for this willingness to accept an offer without reading it was a realization that legal outcomes can be influenced by politics. The feared lead prosecutor on his case was purportedly disabled (although the audience does learn later that it was simply a ploy). Her disability is explained in the show to allow her to receive a significant amount of sympathy from judges and juries. We learn from the narrator that it is this extralegal element rather than legal brilliance that has allowed her to amass a remarkable conviction rate. Despite its exaggerated context within a comedic show, the underlying question raised, how much any given legal outcome is dictated by non-legal forces, is an important one.

A second question raised by Arrested Development is whether or not plea bargains are good policy in the pursuit of justice. The absurdity apparent in George Bluth Sr. wishing to accept a plea bargain holding him essentially contractually liable for an unknown bargain highlights an underlying problem with the practice of plea bargains generally. Under the threat of a potentially worse sentence resulting from a trial, defendants are encouraged to plead guilty to lessor crimes. This provides for the possibility of defendants admitting guilt for crimes they did not commit. Furthermore, with conviction rates acting as a measure for prosecutorial careers, pressure may be exterted on prosecutors to take a sure win with a plea bargain rather than risk losing at trial. This practice fails to consider the victims. In George Bluth Sr.’s case, he wished to accept a plea bargain accepting responsibility for some crime potentially incompatible with his actual wrongful acts. If such a deal was accepted, the defrauded stockholders and employees would never get the chance to tell their story in open court or see that George Bluth Sr. received the punishment he was owed for the actual harm he did to these victims.

By Edward Silvera

In a recent New York Times Article by Sandra Blakeslee entitled “Mind Games: Sometimes a White Coat isn’t Just a White Coat,” it was reported that scientists have been doing studies on a phenomenon they call “enclothed cognition,” which refers to the effects of clothing on our cognitive processes. While it has been known for some time that clothing affects how other people perceive us as well as how we think about ourselves, in these recent studies scientists have been exploring the question of whether the clothing you wear affects your psychological processes and how you approach and interact with the world. After numerous experiments, scientists are beginning to conclude that clothes invade the body and brain, putting the wearer into a different psychological state.

One of the experiments that was conducted was as follows: 58 undergraduates were randomly assigned to wear a white lab coat or street clothes. Then they were given a test for selective attention based on their ability to notice incongruities, as when the word “red” appears in the color green. Those who wore the white lab coats made about half as many errors on incongruent trials as those who wore regular clothes. In another experiment, 74 students were randomly assigned to one of three options: wearing a doctor’s coat, wearing a painter’s coat or seeing a doctor’s coat. Then they were given a test for sustained attention. They had to look at two very similar pictures side by side on a screen and spot four minor differences, writing them down as quickly as possible. Those who wore the doctor’s coat, which was identical to the painter’s coat, found more differences. They had acquired heightened attention. Those who wore the painter’s coat or were primed with merely seeing the doctor’s coat found fewer differences between the images.

While these experiments may not be conclusive, it does give us insight into the tactics of many human rights abusers throughout history. For example, during the Holocaust, the Nazi’s stripped Jews of all of their property and forced them to don uniforms. They were stripped of all their meaningful identity, and instead had numbers tattooed on their arms as the sole instrument for their identification. Although one can never understand what these holocaust victims went through, both psychologically and physically, the above study gives us further insight into Nazi tactics that enabled Nazi’s to strip the Jews of their humanity and psychologically reduce them to a mere number.

By Edward Silvera

In May 2010, Arizona Governor Jan Brewer signed  the Arizona House Bill 2281 into law. The bill was devised in order to regulate what is taught in regards to ethnic studies in Arizona public schools. The bill gives the Board of Education the jurisdiction to determine if a school district or charter school is violating this Act by doing certain actions, such as promoting resentment toward a race of class of people, holding courses designed for pupils of a particular ethnic group, and advocating ethnic solidarity instead of the treatment of pupils as individuals. Critical Race theory generally refers to the study of the ways in which racial concepts and ideas may be operating relatively covertly across social institutions and practices. Critical race theory is an attempt to develop critical tools for analyzing the racist effects of legal practices, as well as other practices, that appear neutral, objective and colorblind.

In recent weeks, Arizona has strengthened its attack on critical race theory because they see it as promoting racial resentment. Surprisingly, their basis for the antagonism toward critical race theory lies in the scholarly critique of the overall concept of race. Biologists, anthropologists, psychologists, and philosophers have been debating the legitimacy of the category of race for years. Since social classifications of race cannot be traced into meaningful biological categories, some say that the scientific status of race is false.

Although I cannot speak to the legitimacy of classifications of race from a scientific perspective, I can speak to my own experiences and observations of society. Even if it is true that there is no real scientific category of race, racial classification is still undoubtedly a real phenomenon. Arizona legislators deem racial categories socially constructed as a way to demean race as a status, and in turn, push for an end to critical race theory studies in school. This foundation of critiquing critical race theory is completely ridiculous. Even if it is true that race has nothing to do with our DNA, the phenomenology of race in today’s society cannot be questioned. Utilizing the scientific perspective on race to perpetuate a movement against the study of critical race theory in Arizona public schools is an ignorant justification for their regulation of critical race theory. As citizens, we must fight against the Arizona government’s attempt to drown out an important aspect of our lives, our racial identity. While racial identity can cause problems in our society and perpetuate hate, it can also yield more meaningful, multi-cultured, fulfilling lives. If we simply allow the government to deny the existence of race, we will be giving up important and meaningful facets of our lives.

By Melissa Dizdarevic

A relic of medieval times, baby hatches reappeared about a decade ago
in Europe. In the old days, the baby hatch (also called a foundling
wheel) was typically a window at a church where a woman could
anonymously drop her unwanted baby into a box, turn it like a
revolving door, and ring a bell so those inside could give the child
proper care and attention. Today it works in much the same way,
though it is far more technologically advanced.
Among other countries, Germany re-introduced the baby hatch
(babyklappe) concept to respond to problems of babies abandoned and
left to die in the streets. The babyklappe seemed like a safe and
logical alternative. Since it’s re-introduction, however, the debate
over these facilities has continued, and they are under threat of
being shut down.
The baby hatch question gets particularly thorny because of the
competing rights of baby, mother, and father. Under the UN Convention
on the Rights of the Child and the German
Constitution, a child has a right to “know his origins.” The Germans
translate this into at least knowing who your parents are, which is
why anonymous births are criminalized. That means baby hatches, where
you can anonymously leave your child, might be aiding a criminal act.

This right, however, presupposes the child’s right to life under both
the Convention and the Constitution. In this way, baby hatches are
actually protecting the child’s rights, where they might have
otherwise suffered a fate worse than not knowing their origins.
Critics of baby hatches contend that by banning these kinds of
facilities, though, women could be forced into exploring more
attractive alternatives such as adoption, or even keeping the child.
However, babyklappe operators and supporters point out the reality
that for some, anonymity remains supreme in making these decisions,
and without the babyklappe, they would be more likely to find infants
in the street again.

Babyklappe also deprive fathers of the right to know they have a
child, and of the opportunity to take part in the child’s upbringing.
Though babyklappe supporters point out that DNA testing could provide
assistance in ensuring the father’s rights, the problem really seems
to be that he might not ever know he was a father to begin with if the
mother doesn’t have to disclose his identity.

Though the debate continues, operators of baby hatches continue to
fight to keep their doors open. Unlike France, which has a liberal
anonymous baby-drop policy, Germans highly value the child’s right to
know his origins. And babyklappe operators agree to regulation so
long as they are not shut down. The difficult question then is how to
strike the balance between the child’s right to life and origins, and
ensuring enough anonymity that women will feel comfortable leaving
their child there as opposed to in the cold.

By Matt S.

So, I know that Fordham is a Jesuit school, but on this Passover
(Easter) weekend, I thought that I would share of my Passover story.
Engrained in tradition, our family has been having Passover Seders (a
Seder is the traditional Passover meal) at my uncle’s house in New
Jersey for more than 30 years (so I’ve been told). My uncle is a
retired judge, and prides himself as being the leader of our family.
When the meal begins, he always goes into ‘judge’ mode. He leads the
Seder meal from the head of the table, dictating different roles to
the attendees, telling us when it is time to eat, and when it is time
to resume the service. I always imagined that this was the way he ran
his courtroom. All that was missing was the gavel.

To give a bit of background, when I was growing up, my sister and I
were the only kids at these meals. The meals were always quiet,
pleasant, and when we heard my uncle’s voice, no other voices could be
heard. But over the years, the dynamic changed. My uncle now has 15
grandchildren, all of whom ear between the ages of 6 and 17. Needless
to say, much of the control that my uncle has had over the meal
quickly disappeared. Specifically over the past few years, my uncle
has had to change his role, transitioning from the ‘judge’ to
‘something else’. It has been fascinating to watch that ‘something
else’ develop.

No longer can my uncle dictate and lecture. No longer can he make it
through the Seder (let alone 30 seconds) without an interruption. No
longer can he play the role that he has been so comfortable playing
for his entire career as a judge.
The change started gradually. First, when there were only one or two
more children, my uncle would try to reprimand the kids who were
talking over him (I would imagine him waving his gavel in the air
attempting to regain control of the courtroom). However, this tactic
was probably more effective on lawyers than it was on 4 and 5 year
olds who couldn’t care less about Passover, tradition, or the Seder
meal.

Each year, as my cousins got older, we would watch the same story
unfold. My uncle would call the Seder to order. Kids would laugh,
misbehave, giggle, and talk. And every time my uncle would try to put
a stop to it by dictating from on high.
This weekend, there were about 10 small children at the meal. And I
was ready, once again, for the same story to play out. But to my
surprise, this year was different. It was clear that my uncle had
(finally) learned that his role had changed. He couldn’t be the
judge. Lecturing was not effective. Dictating wouldn’t work. So
what did he do? He engaged. He sat back. He relaxed. He let the
kids be kids. He wasn’t the judge yesterday. He was the grandfather.

My uncle was a great judge. But maybe if he knew now what he knew
then, he would have been even better…

By Matt S.

Upon entering law school, we are told that our legal education is
meant to teach us to think like lawyers. And to the law school
establishment, thinking like a lawyer means having the ability to
recognize relevant facts, apply established legal doctrine to the
facts, and reach conclusions consistent with legal precedent.

Law school teaches its students certain skills which, taken together,
are meant to achieve this goal. These skills include reasoning,
reading and analyzing cases, memorizing legal doctrine and precedent,
and legal writing. For more than a century, law schools, primarily in
the first year, have relied on the case dialogue method to teach
students to think like lawyers. The case dialogue method consists of
reading cases, and then analyzing those cases through classroom
discussions, during which law school professors engage in one-on-one
dialogue with students in the class. Each student’s success is then
measured by one final exam, during which the students are asked to
provide a legal analysis based on a set of facts, thus showing their
ability to “think like a lawyer”.

This traditional concept of what it means to think like a lawyer is
narrow, limited, and outdated. Law students spend three years and an
extraordinary amount of money on their legal education, and should
learn to think of more than just established facts and legal
conclusions found in appellate decisions. Thinking like a lawyer,
just like being a lawyer, must also encompass consideration of moral
and ethical consequences, public policy, and non-legal interests of
clients. The case dialogue method is so limiting because it fails to
address any of these considerations. To teach students to be lawyers,
law schools must let go of the traditional concept of what it means to
think like a lawyer.

The case dialogue method fails to effectively teach law students to
think like lawyers. The ability to think like a lawyer requires more
than knowing how to read cases, analyze facts, and make arguments.
Practicing law is not just winning and losing, plaintiffs and
defendants, or getting a deal signed. Lawyers must not only know the
law, but also they must understand how it affects the interests of
their clients. Furthermore, it is important that lawyers learn how to
exercise good judgment and make difficult and often spur-of-the-moment
decisions. The legal profession is about understanding people and
their interests, and knowing how best to counsel them using the law as
a tool.

Law schools fail to teach law students what practicing law is really
like. How do you think schools can change the first year curriculum
so that students learn what it actually means to “think like a
lawyer?”

By Marisa Winoker

Adolph Eichmann was one of the masterminds behind the deportation and extermination of nearly 60 million Jews.  After the war, while a number of the top Nazis were tried at Nuremberg, there were many who managed to escape, including Eichmann. For many years, Eichmann was nowhere to be found but in 1957 it was discovered that he was living in Argentina under the alias of Ricardo Clement.  “Harel [the head of the Mossad] knew that [Eichmann] must be brought to justice and punished for his crimes; the victims of his slaughter demanded it; justice and morality demanded it; but no one was looking for him – no agency, no government, no police force.” This was the case until the Mossad took over.

The Mossad organized a plan to capture Eichmann in Argentina and bring him back to Israel.  The plan was carried out successfully and in 1961, Eichmann was tried before an Israeli court.  “The trial, with the recounting of the ghastly crimes the Nazis perpetrated on the Jews, brought out a tumultuous emotional response among the Israeli public and the Jewish people as a whole.”  While many memories of the Holocaust had been repressed, the trial of Adolph Eichmann brought the emotions of this horrific period back to life.  “People screamed and cried and wanted to attack and kill Eichmann in his bulletproof glass box.” Eichmann’s involvement in orchestrating the death of millions had finally become public knowledge.

This story reminds us that many Nazis were not held accountable for the crimes they committed during the Holocaust.  Like Eichmann, many “asked for understanding and mercy from the Jewish people – claiming that [they] acted ‘under orders,’” that they were merely “cogs in the machine.”   Eichmann claimed “that he had only done as he had been told – that it was the Nazi government’s fault, and not his own for what had been perpetrated on the Jewish people.”  Rightfully so, Eichmann received no sympathy and was ultimately hanged.

The hanging of Adolf Eichmann could be deemed revenge—taking his life is revenge for all the innocent lives he himself took away.  Although revenge is often unsatisfying and certainly does not bring back lives nor does it change history, the public admonishment and killing of Eichmann was a victory for the Jewish people.  It reminds us never to forget and provides hope that justice will continue to be served. As Professor Thane Rosenbaum notes, revenge is purely retributive. That being said, I believe that Adolf Eichmann got what he deserved.  Although the “the victims of [Eichmann’s] slaughter demanded” that he be killed, no act of revenge will ever provide sufficient justice to compensate those who were killed (physically or spiritually) by the Nazis during the Holocaust.