PrawfsBlawg

You're Hired

 

This is a one-day offer. You saw my book. You know I can handle the work. You're gonna have to let me know today, not at the end of the holidays. If you want me, make a decision right now.

-- Dustin Hoffman, Kramer vs. Kramer (1979)

 

Wouldn’t you love to say that to a committee? The Faculty Recruitment Conference is less than a month away, and I thought I would add a little lighthearted levity to ease the stress. As candidates prepare (and prepare a little more) for those intense 30-minute sessions, it might be helpful (and entertaining) to consider learning a few tips from depictions of interviews on the big screen. One of my personal favorites appears in Office Space, where the “Two Bob’s” make arbitrary decisions based on nonsense. I also love the group interview in Boiler Room; I think it is Ben Affleck’s best (and briefest) performance. What are some other great interview scenes on film?

 

A Crude Post

In Friday's New York Times, movie critic A.O. Scott reviewed the new documentary film Crude, which opens next Wednesday in Manhattan. The review and trailer (see above link) started a train of thought that has stayed with me since then. Scott calls Crude a “thorough and impassioned” film that “focuses its gaze on [petroleum] production, rather than consumption.” It sounds interesting, and I look forward to seeing it (presumably on DVD). As I read the review and watched the trailer, I began to ask myself: what would a documentary about the lawyers that work for the big petroleum companies look like?

What would these lawyers say?  Do they like the work?  Not like it?  Are they indifferent?  Also, much of the legal work for western petroleum companies is done by U.S. law firms, and the lawyers working at those firms are largely the graduates of U.S. law schools. What do the experiences of these lawyers tell us, anecdotally, about current U.S. legal education and the law schools that provide it?

As I think about it, perhaps the project would be more appropriately structured (at least initially) as a video oral history project. The idea would not be to be polemic, but rather to gain perspective on the global industry from the perspective of counsel.  One of course would need to take great care not to violate client confidentiality in the process, and presumably the focus of interviews would have to be on personal impressions, beliefs and the like, rather than on client or project specifics. I suspect that some of the most interesting stories would come from those junior lawyers who did the work for a while, and then moved on. (Or they just might be the lawyers who are more willing to talk about their experiences.) But in the interest of balance and obtaining a full-spectrum view, it would be useful to have senior and current lawyers involved too.

Such a project could be undertaken for virtually any industry with substantial legal representation, but the growing public focus on environmental and energy concerns suggests that petroleum companies (or perhaps the entire energy sector) would be a good choice. There certainly are a number of lawyer documentaries in existence (see A Lawyer Walks into a Bar and The Trials of Law School, for example), but none I can readily find that focus on the legal practitioners themselves in a particular industry.

This is not a fully formed idea by any means, but it does intrigue me. I would be interested in hearing what others have to say about it.

Reality Imitating Art, or Vice Versa?

I just saw an interesting question on The Chronicle of Higher Education’s site about fictional professors that have served as influences in the lives of actual faculty. Much like L.A. Law or Boston Legal may have inspired people to go to law school, there are certain teachers and professors on television and in films who probably inspired us to go to the Head of the Class. Personally, I was more inspired by the depictions of teachers in other disciplines than I was in characters portraying law professors. They seemed more accessible than the typical law professors, who are often depicted as cold, judgmental, and intimidating. (In fact, I can’t think of a friendly one.) Who are some of the best teachers on television and the big screen? Are these depictions realistic?

I Am the Law

Turner Classic Movies is airing the 1938 classic, I Am the Law, today. It is one of the first films to feature a law professor as a protagonist. Edward G. Robinson plays law professor John Lindsay, a man who is bored enough with being on sabbatical that he agrees to take on the mob. The full synopsis is available here. Clearly, legal education had fewer demands 71 years ago.

Has Hillary Seen Godfather II?

This classic is among 25 films highlighted in an article listing the best films to address foreign policy issues. I like to show film clips in my classes, so this list may provide a few ideas. A colleague of mine likes to show the bank robbery note scene in Woody Allen’s Take the Money and Run, which is hilarious. Filmed in mock documentary style, Allen, as Virgil Starkwell, unsuccessfully attempts to rob a bank with a misspelled note that reads, “Please put $50,000 in this bag and apt natural, because I am pointing a gub at you.” Instead of fearing the robber, the tellers and bank managers are too busy trying to decipher Virgil’s handwriting to heed its contents. Does anyone else like to use clips in class?

Hold the Soup: a new movie in DC at the NGA

My fellow Dorot alum Faye Lederman has, over the last few years, embarked on a career of producing and directing a number of provocative and moving films. I just received word that Faye and her collaborators will be screening a new movie of theirs in Washington DC this weekend. Here's the info:

Our new documentary Hold the Soup will screen at the National Gallery of Art this weekend, Sat. Feb 21 at 2pm as part of a program of short films. The other pieces are an interesting mix, including a film by the famous experimental artist Barbara Hammer. (Avant garde meets matzo balls? who are we to question.) http://www.nga.gov/programs/calendar/cal2009-02_w07.shtm
(click on American Independents: The Black Maria)

Film Synopsis:
Jewish grandmothers will think twice about offering up seconds after watching their sacred matzo balls turn to sport in this gustatory romp. Competitive eaters from across the country face off in a sloppy race for the title of World Matzo Ball Eating Champion. These "seasoned athletes" spanning the ethnic spectrum serve up some unique perspectives on Jewish cooking and dispel our myths about who loves Jewish food and why.

Movies, Law, and Magic Grits

Thanks to Dan and the other Prawfs for having me back.

Last night I screened My Cousin Vinny as the first installment of Penn State's Faculty Film Series.  The purpose of the series is to bring together faculty and students to watch and discuss great movies about law.  We had a wonderful discussion about the way the movie portrays lawyers--e.g. their clothes, their demeanor, their pronunciation ("the two yutes" vs. "the two youths").

And we have some great movies lined up in the coming weeks.  We're showing 12 Angry Men, North Country, A Few Good Men ("You can't handle the truth!"), Anatomy of a Murder, and my favorite, Kramer vs. Kramer. 

What else should we show?  I'd love suggestions from the Prawfs readership.  Thanks!

Copysquare

“Copysquare” is a copyright-licensing scheme I’ve proposed to empower DIY video producers, nano-budget filmmakers, and other citizen media creators by encouraging the sharing of the basic building blocks of media production. It’s the subject of a law-review article I’ve just published (here’s an extended abstract).

Here’s the pitch: Ordinary people now have the means of producing and distributing high-quality video content worldwide. But one shortcoming leaves the full potential of the citizen-powered media revolution unfulfilled: Creators lack ready access to stock footage, sound effects, soundtrack music, and still photography. By fostering a regime of sharing these media workparts, copysquare aims to provide desktop creators with the means to take on increasingly ambitious projects and to attain new levels of production quality.

Copysquare follows in the tradition of, and borrows much of its values from, the free-software/open-source movement and the Creative Commons effort. As with both of these endeavors, copysquare leverages copyright law and standardized licenses to construct a voluntary sharing regime that is insulated from outsiders who would undermine the project by taking unfair advantage of the participants’ generosity. Unlike these prior endeavors, however, copysquare uses certain unique licensing mechanics that are specifically designed to overcome problems associated with the sharing of media workparts. Copysquare’s three basic license provisions are: (1) a requirement of notification, (2) a right to reject, and (3) “favored nations” treatment. The copysquare license says, in short, “You can use my creative work – film footage, picture, sound effect, etc. – in your creative work, but you must notify me that you are doing so (the notification provision), give me a chance to opt out (the right to reject), and you need not pay me or credit me, but if you pay or provide credit to others for the same kind of contribution, you must pay me and credit me on an equal basis (the favored-nations provision).”

Having finished laying the groundwork, my next task is to draft the license itself and make choices about the details of how the scheme will work. (Here’s the project website.) If you would be interested in chipping in your two cents or possibly looking at license drafts, I would be extremely grateful – you can e-mail me at ejohnson@law.und.edu.

weekend suggestions

Since I'm sure at this point in the semester/ fall you have nothing better to do, here are a couple of semi-obscure suggestions for things to waste your time on:

If you liked Deadwood, you might consider reading Oakley Hall's novel Warlock. I got to it because the current NYRB Classics edition has a blurb from Thomas Pynchon and an introduction by Robert Stone, two of my favorite novelists. But don't let that scare you away. It's a really literate western, like Deadwood in that it's about a frontier town (this time in the southwest), but more concerned with the issue of law enforcement -- specifically, the relationship between failed public law enforcement and a privately hired marshal whose employment and practices and friends have a number of unanticipated consequences for the town of Warlock.

If you like crime dramas and political thrillers, you might want to rent State of Play, a BBC miniseries from 2003 which played originally on the cable channel BBC America and is finally now out in the US on DVD. British TV tends to do spy thrillers (see especially the two Alec Guinness/ Le Carre series), political thrillers (see House of Cards), and crime drama (see Prime Suspect) better than the Americans, and this is just as good as the best of those -- very fast-paced, thrilling, and thoughtful. In episode one there's a classic moment where a newspaper calls in its attorney to go over its legal options after it has just received some very hot evidence crucial to a murder investigation. It seems both incredibly realistic and hilariously funny, all at the same time, and gives one a sense of how the press (from whose perspective the series views the world) views its lawyers.

Dinner and a Movie: How Terrorist Groups Come to an End

I've been a fan of TBS's Dinner and a Movie  for quite a while and I think academia can serve up the same sort of interesting pairings. If the recently issued Rand report How Terrorist Groups End is the main course, then the Battle of Algiers is the movie. Rumor has it that the Pentagon screened this movie at the Pentagon as part of preparation for the occupation of Iraq. Though the Algierian uprising against the French occupation is  not a perfect analogy for the US role in Iraq or in its strategy to address al Qaeda, the movie raises several questions relevant to the struggle against terrorism and our involvement in Iraq. This movie addresses issues such as the military use of torture, the potential use of terrorism as a legitimate tool, and the role of human rights and their derogability in a time of terror.

For those of you that have already seen The Battle of Algiers, you might try Breaker Morant. This movie deals with some similar issues during the Boer War, though its emphasis is on the political use of the court martial procedure. I don't want to give away too much, but this favorite of mine does a nice job of emphasizing both the limitations and the possibilities of law in wartime.

As an appetizer, or perhaps dessert, I'd like to recommend John Nagl's Learning to Eat Soup with a Knife: Counterinsurency Lessons from Malaya and Vietnam. Though I suspect Nagl and the authors of the Rand report disagree on the role of the military, (I can say for sure after I sit down to dine on the Rand report this afternoon), both seem to stress the vital importance of on-the-ground intelligence related to the nature of grievances and the  structure of insurgent or terrorist groups  rather than traditional military information seeking. For instance, Nagl writes in the preface that "understanding tribal loyalties, political motivations and family relationships was essential to defeating the enemy we face, a task more akin to breaking up a Mafia crime ring than dismantling a conventional enemy battalion or brigade. 'Link diagrams' depicting who talked with whom became a daily chore for a small intelligence staff more used to analyzing the ranges of enemy artillery systems."  For those of you who've already seen Battle of Algiers, you may remember a scene involving the efforts to determine the members of the resistance using just such link diagrams.

Capturing the Paskowitzes

The other night I saw the movie, Surfwise. The documentary follows Dorian "Doc" Paskowitz on his life journey, starting with his penchant for laying tefillin and naked calisthenics. The movie focuses on the period where he puts his Stanford Med degree behind him, and instead travels with his wife and 9 children  in a 24 foot camper to surf full time. I'm sure this movie's underlying story inspired countless reality tv shows--come survive with the Paskowitzes for a week!

In the ethically most problematic feature of the story, Doc never sends the kids to formal schooling; instead, they wake each day to Chairman Mao's fight song and they learn about life through surfing and their time together.  One of the 8 sons, who now works in a restaurant kitchen, expresses some bitterness about the fact that by the time he reached adulthood, he realized he had to do ten years of remedial schooling if he were to attain the level of knowledge necessary to pursue his dream of becoming a doctor also. Fortunately most of the other siblings were able to find work in the film and music industry...

In any event, the movie is funny, touching, and at times, extremely uncomfortable.  Highly recommended. By the way, when my wife saw the movie here in the Hassee a few weeks ago as part of the Tallahassee Film Festival, she relayed the following story: at one point, Doc, at age 87, was talking about how much he loved sex.  He said somberly that "God speaks to us through fucking."  The octogenarian sitting in the row in front responded loudly to his wife, "See, Millie, I told ya so." 

The Dark Knight and the MPAA

The Motion Picture Association of America has long been a target of criticism for its secret, often-arbitrary, moralistic, and frequently non-sensical movie ratings. The focus is totally on sex, nudity, profanity, and (as of recent years) drug use, while violence often gets a free pass. The board often focuses on individual words, scenes, or shots in isolation, ignoring context and the work as a whole. The result is that a rating often turns on whether the image of an orgasm lasts for five seconds or ten (some version of this story was told about Boys Don't Cry) or whether the nudity was "sexually oriented." And the board has long been accused of being much tougher on independent films than studio releases. Much of this story was told in the documentary This Film is Not Yet Rated. But despite years of criticism, nothing has changed much.

But I wonder if the Dark Knight could be the tipping point. The film got a PG-13 rating, but just about every review and commentary I have read has included a line that the rating was inappropriate, given the overall tone and themes of the film, as well as some of its violence. Some commentators have gone so far as to directly warn parents against letting young teens and tweens see the movie and to criticize the MPAA for giving it the lower rating. Of course, since the ratings process is secret, we do not know why the movie received what it di. But all the facts are in place to support every criticism and conspiracy about the MPAA: the movie has dark and violent themes, but no sex, drugs, or dirty words; it was released by a major studio; it is a franchise movie, based on characters with which young teens and tweens are familiar; and it was intended as a summer blockbuster and an R-rating would have seriously cut into audience and profits.

The PG-13 rating famously was created in 1984 as a middle-ground category between PG and R, after Indiana Jones and the Temple of Doom. That summer blockbuster movie received a PG rating despite similarly dark and violent themes that scared the target audience and outraged parents, viewers, and commentators. If Dark Knight produces similar parental outrage, the solution will not be an additional rating category--additional categories would be pointless. Any solution will (finally and mercifully) require a more fundamental change to the system.

For a Good Time Call 555-0123: Liability-Free Phone Numbers for the Entertainment Media

A legislative proposal: Congress should set aside, or direct telephone companies to set aside, certain phone numbers that can be used in films and on television without fear of liability.

As you have no doubt noticed, when a line of dialog includes a phone number, the character on screen, often with intense earnestness, spits out a phone number with a “555” prefix. For example:

“Damnit! Get President Palmer on the phone! His direct, private cell phone number is 202-555-4248!”

Fearful that if they use a real phone number they will get complaints or even lawsuits, studios have taken to using the 555 numbers because they are reserved by the phone companies and never assigned to customers.¹ Thus, they will not be unwittingly subjecting hapless folks to scores of midnight crank calls.

The problem? When you are engrossed in the make-believe world created by the film, hearing the fake “555” phone number brings you instantly back to reality – reminding you that you are watching an actor in a film, not, for instance, a heroic government agent trying to disarm a bomb. And if you are a lawyer, hearing the “555” phone number reminds you of the law, which means you are being reminded of your job while watching TV. It’s not good for anyone.

Therefore, I call on Congress, and, while I’m at it, the United Nations and the telecommunications companies of the world, to set aside a large enough slate of random-sounding numbers that movie-goers will not be subjected to instantly recognizable fakes.

The tough question that immediately confronts us: How do we get a slate of numbers that is safe for entertainment usage without screwing over the real customers currently using them. I have two proposals. The first is a bit silly, I admit.²

==More after the jump ...

My first plan would be to provide immunity for certain seven-digit phone numbers where an administrative rule-making body declares such phone numbers to have already been so tarnished through their use in media, that customers have little or no expectation of privacy with regard to them. The most obvious candidate? Why, of course: 867-5309. Those of you who remember the 80s (or have at least seen them on cable TV) will recall that that is Jenny’s number, from Tommy Tutone’s 1982 hit song, “867-5309/Jenny.”³

In fact, I’d say there is a good argument that any producer including 867-5309 in a movie or television show should be availed of an estoppel- or laches-type defense. And, for an analogy to property law, when new phone customers get 867-5309, it’s a lot like coming to the nuisance. Of course, the problem with clearing 867-5309 for producers is that the number is so engrained in pop-culture consciousness, using it in a movie is likely more jarring than using a 555 number.⁴

My second plan is a three-step approach: (1) Use computerized algorithms to comb seven-digit phone numbers to find those that are used by the fewest businesses and that are used in the fewest area codes. Put these phone numbers on a “Level I” list, then freeze the list, prohibiting phone companies from assigning these numbers to new customers. (2) Provide immunity for producers who use Level I phone numbers, so long as they use such numbers only in combination with an area code that does not correspond to a real telephone number. (3) Allow the Level I list to undergo attrition; that is, allow the seven-digit numbers to become progressively cleaner and cleaner as users in different area codes naturally give up those numbers as they move or otherwise discontinue phone service. When a seven-digit number is no longer used in any area code, or when it reaches a certain threshold of disuse, place that number on a “Level II” list. Provide immunity to producers who use seven-digit numbers, sans area code, on the Level II list.⁵

If you agree with my proposals, comment below. If you disagree, please call 867-5309.

NOTES:

FN1: I don’t know if customers with phone numbers featured in films have sued producers, much less been successful in a lawsuit. But it is clear that the fear of such lawsuits, or at least complaints and associated ill will, have held studio standards-and-practices folks to the practice of using the 555 numbers.

FN2: This whole post is a bit silly, since, as you may have noticed, it uses footnotes.

FN3: Snopes.com reviews the real-life ramifications of 867-5309 here.

FN4: But here’s an example of an intermediate case: 362-4350. That’s the number to call for the hit-woman personified by Joan Jett in her re-make of AC/DC’s “Dirty Deeds Done Dirt Cheap.” I’d have to say, though, I doubt 362-4350 has been exploited heavily enough for number holders to be fairly divested.

FN5: This proposal might fairly be called a “seven-point plan,” but I think that’s too many points. Better to keep it to three. Three-point plans are always better. And when you get down to three, for some reason I don’t entirely understand, it is plausible to call it a “three-step plan,” making it sound even easier. (I think part of the problem with saying “seven-step plan” is that if you have too many steps, then you are getting into the realm of dieting and addiction recovery, and that’s not where I’m going with this.)

Some Reactions to "The Lives of Others"

Though I missed the chance to see The Lives of Others with Ethan when he saw it on his recent trip here, I did get a chance to see it this past weekend, and I can't recommend it highly enough.  (This follows on the heels of seeing Mira Nair's The Namesake a couple weeks back, which is simply gorgeous and outstanding.) 

Here's a quick capsule summary from Slate's Dana Stevens:

The film opens in 1984 in East Berlin, where we see Gerd Wiesler (Ulrich Mühe) a captain of the East German secret police, teaching a class in extreme interrogation techniques. These include sleep deprivation, the spouting of Orwellian paradoxes (if the prisoner believes the state capable of detaining him for no reason, that belief alone is enough to justify his arrest), and, in a creepy detail, the collection of the prisoner's seat cushion after the interview to be preserved as an odor sample for police dogs. The real intrigue begins when Wiesler is assigned to bug and monitor the apartment of a successful writer, Georg Dreyman (Sebastian Koch), and his girlfriend, a famous stage actress named Christa-Maria Sieland (Martina Gedeck). Georg is neither a subversive nor a party loyalist: He's a go-along-to-get-along guy, too comfortable with his success to question the regime closely, even as it closes in on his scruffier and more outspoken fellow artists. But Wiesler's superior, Col. Grubitz (Ulrich Tukur), wants to further his career by impressing the party bigwig Bruno Hempf (Thomas Thieme), who is looking to get his swinish mitts on Christa-Maria by any means necessary. And Wiesler himself is a rigid ideologue, a socialist automaton who mistrusts all artists on principle—even if the meticulous care with which he runs his own surveillance operation hints at a thwarted creative desire.

The Lives of Others is a more politically charged movie than the Namesake, and one that raises fascinating questions about tensions among law, criminality, artistic purity and personal loyalty--thus I have a few more comments to add than I normally do in my genre of microscopic film reviews.  But these might only be of limited interest to those who have seen the movie, so I'll put them below the fold and invite others to weigh in on this with their own reactions in the comments.

The first half of the movie struck me initially as useful anti-communist cinematic propaganda, detailing and dramatizing the dangers of a surveillance state where the Stasi rules, where apparatchiks abuse state machinery for venal personal goals of lust and social currency.  Of course, that pro-Western vibe starts to deteriorate pretty rapidly the more one reflects upon the Bush Administration's penchant for sloppy or malfeasant surveillance operations of its own.  In this sense, the movie's early message -- Boo surveillance! -- is capable of appealing to liberal democrats' best instincts while also raising severe questions about the ways in which we have slipped (or leapt!) from those noble ambitions in our own efforts against terrorism.  Sure enough, the movie will hit home for those prawfs who readily admit that the Bush Administration has served to radicalize them, moving them from generic neoliberalism or moderate conservatism to full-throated skeptics of state power, verging on shades of crypto-anarchism.

As Wiesler's character -- a profile first in the banality of evil and then in courage -- develops through the arc of the film, the movie is transformed.  Wiesler's character microcosmically reflects a struggle of humans against "humanisms," the overfed archetypes that permeate the GDR's administration.  Ideological abstractions and commitments become wellsprings of cruelty.  Basic decency is the most subversive rebellion. 

When Wiesler's eroico resistance is made out, his career suffers, and he's relegated to steaming envelopes open until he walks off the job on the day the Berlin Wall falls down.  Wiesler only finds his own serenity after the surveilled writer, Georg Dreyman (played by Koch, a German Pierce Brosnan double,) discovers Wiesler's action in the course of post-unification Germany's open-file policy, and issues a subtle but no less monumental acknowledgement of gratitude.  The movie, which at first struck me as essentially political, stands, in the end, not for East or West, each of which is capable of its own (though differing) cruelties, but for a retrenchment from politics.  In this respect, it reflected what I take to be the ethos of literature generally: to paraphrase Irving Howe, "the notion that abstract ideas invariably contaminate [life] and should be kept at a safe distance from it." Am I mistaken with this reaction? I'm curious to hear your thoughts if you've seen the movie.

Quick Reviews

While I was in Toronto last week, I had the chance to see The Namesake in advance of its nationwide release on Friday.  If you haven't yet seen it, drop what you're doing and buy tickets for it today.   It's an absolutely stunning film with a first rate performance by Kal Penn (of Harold and Kumar fame). 

On the other hand, if you were thinking of netflixing The Holiday to watch with your snugglepartner, don't bother: it's a snoozer that not even Jack Black can save.  The same can be said of The Death of Mr. Lazarescu (which is far more painful to watch, notwithstanding an NYT endorsement); Babel (completely over-hyped; it's like Crash but globalized), and Miami Vice, a movie I'm reluctant to condemn given that I'm generally a fan of the genre.

In the reasonably worth-watching category: The Illusionist and Fast Food Nation. Just be sure to not to be eating burgers while watching the latter.

Finally: this story, which involves my good friend as the match-maker, is destined to become a movie.  Almost can't believe it wasn't a NYT April Fool's Joke last week.

searching for a crim angle

My students will tell you that I have a propensity towards (or a weakness for) working current events into my course materials, and that, like an organic grocer, I prefer to keep things local.  I am traumatized by the fact that I cannot come up with a way to work this story into either my criminal law or my bail-to-jail class.  Fraternity brothers from South Carolina suing the Borat producers for liquoring them up, convincing them that only foreigners would view their footage, and thus lulling them into a false sense of complacency such that they made racist, sexist comments that they of course never would otherwise have said?  Shades of Mel Gibson's DUI arrest, to be sure.  But unless "stupid" is legislated into a crime, I'm afraid I can't shoehorn this lawsuit into my classes.  May a gentle reader who teaches contracts have more luck.

The Most Overrated Movie of All Time

I don't know if this one will ultimately take the prize, but the beautiful Dr. Dimino and I wasted 100 minutes last night watching The Postman Always Rings Twice -- the Lana Turner version.  The movie centers around an adulterous affair and the lovers' plots to kill Turner's husband.  The acting is mediocre, the plot is predictable (apart from the suspended sentence of probation Turner gets for her guilty plea to manslaughter!), and the use of music is the worst I have ever heard.  Every time the main characters are about to kiss, the music rises to a roar, resulting in the scene being laughable rather than sexy.  Furthermore, the significance of the title is not clear until the very end, and I still think it was a poor choice.

Feel free to nominate other overrated movies in the comments.

The trouble with movie reviews: the Ruth Franklin School of Film Criticism

Like Ruth Franklin with novels, I tire of having to stretch my mind to come up with new ways of expressing the warm feelings I develop toward many movies.  I can certainly understand her frustration with respect to reviewing novels, which almost invariably are dead to me.  (Yes, I know, it's a sickness of sorts.)  But I definitely don't share the same ennui with non-fiction books with real opinions and arguments; there I have little trouble registering more than an utterance of affection.   

In any event, I'm not one to give up on innovations lightly.  Thus I'm starting a new feature at PrawfsBlawg, what might, in ironic homage, be called the "Ruth Franklin Movie Review."  Here's how it works: I look at what's been successfully returned in my netflix queue, and the following genius erupts in prose.

Spanglish (2004): I liked it.

Yana's Friends (1999, Israel): I liked it.

Late Marriage (2001, Israel): I liked it!

The Limey (1999): Not so much, though I'm a fan of the genre generally.

Gandhi (1982): I liked it even more seeing it as a grownup.

March of the Penguins (2004): I fell asleep.

Feel free to add your own reviews in the comments. PrawfsBlawg is nothing if not Web 2.0!

Equal Protection for the X-Men!

With a hat tip to fellow Amherst alum Laurel Kilgour for the pointer, I came across this analysis of equal protection and mutants, a-la-X-Men, by Ivan Ludmer, a law student at the other, other "UM" -- the University of Minnesota.

I only have two things to say in response:

1. I really need to go see The Last Stand.
2. It's too bad Ivan didn't write that as his Con Law exam.

Munich and Vengeance

Along with Syriana, Good Night and Good Luck, and Brokeback Mountain, Steven Spielberg’s political thriller Munich has received as much attention from political commentators as from film critics. The film follows a team of Mossad agents under orders to find and kill eleven men thought to have had a hand in the massacre of Israeli athletes at the Munich Olympics. David Brooks attacked the film for equating Israeli and Palestinian violence, while Charles Krauthammer accused Spielberg of actually favoring the Palestinians. The film received less criticism for omitting discussion of the Lillehammer affair, in which a Moroccan waiter named Ahmed Bouchiki was misidentified as terrorist Ali Hassan Salameh and then killed by Mossad. The film is loosely based on Juval Aviv’s book Vengeance: the True Story of an Israeli Counter-Terrorist Team, and in this post I’d like to discuss the film’s treatment of revenge and its consequences.

Krauthammer faults the film for, among other things, humanizing and contextualizing the Palestinians targeted for assassination while leaving the Israeli athletes with nothing but names and faces. This is poor film criticism, since on a cinematic level the athletes are the counterparts of their captors and killers, who are not individuated even by name. The targets are the counterparts of the protagonists, and the latter of course receive far more character development than the former. The targets are foils for the protagonists, and their humanization is essential to understanding the psychological costs their deaths carry for the men asked to kill them. On a theoretical level, though, Krauthammer’s contrast is an important one, but not in the way he suggests. Retribution can be understood as agent-centered or victim-centered. By humanizing those targeted for assassination, the film seems to reject the idea that vengeance is motivated by hatred of wrongdoers rather than solidarity with victims. There is no need to demonize the targets, who are killed not for who they are but for what they have done and who they have wronged. Evil may not always be banal, but it is difficult to sustain the view that every individual deserving of punishment is more hateful than pitiful.

What of the film’s failure to individuate the athletes other than in name? Even if vengeance is exacted on behalf of or for the sake of a victim, it does not seem essential to the revenge genre that the victim is fully represented. In stories as diverse as Hamlet and Memento the victim is dead before the curtain rises. The focus is on the avenger, not on the avenged, and the relationship between the two is usually enough to explain a desire for vengeance even though the protagonist’s motives are usually mixed with guilt and grief. The drama arises from the lengths to which the protagonist goes and the psychological costs incurred in the process. In Munich the Mossad agents have no personal relationship with the athletes; despite official disavowal the agents are state actors, individuals charged with carrying out a perceived collective responsibility. Munich is one of very few films dealing directly with the brutalization effect incurred on individuals charged with inflicting violence on other human beings.

It is possible to conclude that Munich is not a revenge film at all but a war movie focused on a different kind of war. When one Mossad agent confesses that “It is strange, to think of oneself as an assassin,” he is told to think of himself as something else, not as an avenger or executioner but as a soldier. What looks like revenge may simply be a series of retaliatory strikes, aimed at eliminating enemy leaders and deterring future attacks. The film’s final exchange draws a sharp contrast between the two outlooks. When the lead agent asks whether he committed murder, he wants to know whether those he killed were truly responsible for the Munich massacre. “If these men have committed crimes then they should be tried, like Eichmann.” When the case officer assures the agent that the targets were involved in a variety of terrorist conspiracies, he contrasts murder not with deserved punishment but with collective self-defense. Whether state violence is inflicted through soldiers, prison guards, or executioners, individual human beings must still experience an often debilitating conflict between their official role and the moral inhibitions built up over a lifetime of restraint and respect for the humanity of others. There is no easy resolution of this fact of political morality.

This is probably the last of my film-related postings. The others were Stealth and the Laws of War, Kingdom of Heaven and the Concept of Jihad, The Constant Gardner and the Duty to Aid, and Syriana, Iran, and Torture. I hope shortly to begin posting on topics in criminal, international, and Islamic law.

Syriana, Iran, and Torture

It is morning in Tehran. An all-night party draws to a close. A young woman slips a pant suit, shades, and scarf over a short dress, exchanges her stilettos for flats, and walks out the door. The opening scene of Syriana silently touches on several deep tensions within Iran's complex social order. The first tension is between the rulers and the ruled. Commentators often conflate the overthrow of the Shah and the subsequent rise of religious factions to political authority, referring to both as Iran's "Islamic Revolution." The Shah was deposed by mass mobilization led by a number of groups, secular and sectarian, liberal and socialist. The religious faction filled the resulting power vacuum largely because it was the most efficient in providing local governance in rural areas and the most brutal in silencing political opposition.

Iran has never enjoyed a consensus regarding how to integrate Islam into a constitutional regime, in part because of a second tension, between the asceticism of Arab tribal practices thought integral to the religion despite its universalistic orientation and the celebratory dynamism of Persian culture. My Persian friends describe a tacit social compact, according to which the populace acquiesces to strict regulation of public behavior in exchange for relative freedom and privacy behind closed doors. The resolution of the second tension gives rise to a third, between a public sphere dominated by conservative norms and a private sphere in which personal behavior and intellectual exchange largely proceed as they always have. The film's opening scene identifies each of these tensions without a word of dialogue, which I consider a pretty neat trick.

Syriana also provides one of a growing number of representations of torture in film and television, in this case the disfigurement of George Clooney's character by a former CIA operative. On 24, protagonist Jack Bauer has shot and electrocuted suspects, broken their fingers, even faked the murder of one of their children to elicit information. During the first season of Lost, Jack and Sayid took a page out of Alan Dershowitz's playbook, inserting a (sterile?) reed under Sawyer's fingernail to learn the location of Shannon's asthma medication. This March, Evey Hammond (Natalie Portman) will be subjected to cruel, inhuman, and degrading treatment in V for Vendetta, originally scheduled for release on Guy Falk's Day ("Remember, remember, the Fifth of November") but delayed following the London bombings. There's been some discussion about whether these representations inform or desensitize, but the focus on 24, though understandable (given the popularity of the show, the frequency with which it portrays torture, and the narrative context of counter-terrorism operations), is slightly misleading because, on that show, those subjected to torture typically possess and divulge the desired information. The other examples involve the torture of characters who know nothing (Clooney, Sawyer) or whose resistance to torture is meant to be ennobling (Evey). It is also striking how many of these fictional torture victims are white, perhaps encouraging audience identification. I don’t have a settled view on whether the depiction of torture in fictional media is for the better or for the worse, so I’ll just open this topic up for discussion.

I will wrap up my film-inspired postings shortly with a longer discussion of Munich and the concept of revenge.

The Constant Gardener and the Duty to Aid

The Constant Gardener is a beautiful film which raises all manner of questions regarding the role of multinational corporations in creating and perpetuating cultures of official corruption in developing nations. But the heart of the film lies in the moral transformation of a quietist in the diplomatic service (Ralph Fiennes) stationed in Kenya. Toward the middle of the film, Fiennes and his wife (Rachel Weisz) pass several young children beginning a long walk home. Weisz wants to give the children a lift in the couple’s car, but Fiennes refuses, saying that there are millions of people who need help, and the couple can’t help all of them. Weisz responds that these children are among those they can help, but to no avail. Toward the end of the film, Fiennes begs a plane crew to allow a child to board the plane and escape from a militia slaughtering the rest of her village. The crew refuses, reminding Fiennes that they cannot save everyone. Fiennes, predictably but (I think) not cornily, reminds them that they could have saved more.

Issues surrounding the limits of the duty to aid are raised in dozens of films. Schindler’s List is probably the most famous, but pretty much any film set in a developing country includes a scene in which a naive character gives some money to a poor child and is soon overwhelmed by a flood of equally compelling requests. What I liked about The Constant Gardener was that it identified one of a number of sources of widespread reluctance to aid distant others which may be characterized either as cognitive biases or as moral errors. The two exchanges illustrate the "drop in the bucket"effect, by which individuals infer from their inability to correct social injustices such as poverty, homelessness, and famine that they lack a compelling reason to assist any particular victim of such injustices. One contributing factor is that these injustices are conceived as abstractions, such that they survive assistance to even a very large number of victims so long as some victims remain. No matter how many individuals are provided with the resources and opportunities needed to flourish, "poverty" persists so long as others remain deprived. The framing of the problem rules out incremental or partial solutions.

A similar dynamic may partially explain why nations and individuals often respond more readily to concrete and acute crises (e.g., earthquakes, tsunamis, and hurricanes) than to abstract and chronic problems. The former enjoy greater psychological salience, to be sure, and natural disasters make it difficult to blame affected communities for their own predicament. But it also may be that restoring a community to some status quo ante seems like a satiable, achievable goal, a fight that can be cleanly won and then left behind.

Confronted with equally valid claims to assistance, and without the means to address all of them, individuals might reach one of a number of false or misleading conclusions. One might conclude that since one has no more reason to help one person than another one lacks sufficient reason help either, forgetting that one has more reason to help either than neither. One might also think it would be unfair to help some rather than others on the basis of necessarily arbitrary considerations, revealing at the very least an overvaluation of fairness relative to other values and probably a misunderstanding of what fairness means and requires in the first place. One might repeatedly postpone helping others, reasoning that one lacks a decisive reason to help this person now rather than some other person later, and find at the end of the day that one has not helped anyone or at least not enough people. Finally, one might conclude that one’s duties to help others are extremely demanding, that one will probably fail to satisfy them, and that if one will fail morally one may as well do so at the least cost to oneself ("in for a penny, in for a pound"), perhaps on the view that morality is indifferent between partial compliance and noncompliance.

One point I took away from the film is that legal and philosophical discussion of the outer limits of the duty to aid, though interesting and important, should not distract us from that duty’s minimum requirements. When looking down the street or beyond our shores to people in need, the most pressing question is not where our duties end but where they begin, not where to stop but where to start.

Next week I'll post on Syriana, torture, and constitutional culture in Iran. 

Kingdom of Heaven and the Concept of Jihad

Kingdom of Heaven was supposed to ride to commercial success on the strength of its director (Ridley Scott), the popularity of its leading man (Orlando Bloom), and the political controversy surrounding its subject matter (the Ayyubid conquest of Jerusalem that triggered the Third Crusade). When plans for the film were announced concern was quickly raised that the film would glorify religious conflict and ignite group antagonisms. As it became clear that the film’s message was one of peace and tolerance, a new set of critics attacked from the right, charging that the film presented “Osama bin Laden’s view of history. It will fuel the Islamic fundamentalists.” The film failed at the box office, but despite a number of cinematic limitations is well worth renting. The film provides a nice platform for discussing some disputed features of the concept of jihad and of the Islamic law of war.

The film of course takes plenty of liberties with history, both as to characters and to events, but the story is recognizable and surprisingly relevant to our own era. The film opens around 1187, during a period of peace between Baldwin IV, ruler of Jerusalem, and Saladin, sultan of the Ayyubid empire. The villains of the story are indeed a sect of religious fundamentalists bent on holy war: the Knights Templar, supported by Raynald of Chatillon and Guy of Lusignan. Through repeated attacks on civilians (Muslim traders and pilgrims) the Templars seek to provoke the great power of the region (the Ayyubids) into retaliatory strikes that will spark a global clash of civilizations. Baldwin preserves the peace by allowing Saladin to observe Raynald’s lustration and imprisonment. Baldwin succumbs to leprosy, and Guy, husband to Baldwin’s sister, becomes King. Raynald is freed, the attacks resume, and Saladin’s own sister is captured and killed. Saladin’s forces crush Guy’s at the Battle of Hattin, and after a lengthy siege Balian of Ibelin surrenders Jerusalem to Saladin, who promises to spare the city’s inhabitants and guarantee safe passage for Jews and Christians in the Holy Land. The film closes with Richard the Lionheart on his way to launch the third crusade.

What inspired conservative critics to accuse the film of aiding the cause of terrorists? One reason might be that both Hafez Assad and Saddam Hussein portrayed themselves as modern-day Saladins. That Saladin was an Iraqi Kurd makes Saddam’s invocation bitterly ironic. In any case, the film portrays Saladin as a reluctant warrior and a merciful victor, as temperate in his religious views and respectful of those outside his circle of faith. Contemporary leaders will generally suffer by comparison. From reports of audience reactions in Beirut it seems the film’s intended message was received.

The other reason right-wing critics might find the film conducive to terrorist purposes is that Saladin played a critical role in revitalizing the concept of the lesser jihad (al-jihad al-asghar) (armed struggle undertaken for the sake of Islam) after centuries of relative desuetude. (The greater jihad (al-jihad al-akbar) refers to individual and collective struggle for spiritual and moral improvement). Saladin invoked jihad both to consolidate Syrian and Egyptian territories into a single sultanate, and later to characterize armed conflict with European forces. The film certainly understates Saladin’s religiosity and his preoccupation with the meaning and requirements of jihad. Critics might suppose that any favorable portrayal of Saladin amounts to an endorsement of the concept of jihad and with it recent ideological (mis)uses of that concept.

In the remainder of this post I’d like to focus on how the film deals with both the instigation and the conduct of war. With respect to the former, it is widely believed that the Islamic law of war divides the world into the Abode of Islam (dar al-Islam) and the Abode of War (dar al-harb), which division suggests a state of permanent belligerency between Muslim and non-Muslim states. These classifications derive not from foundational sources but from the Abbasid jurists of the late eighth and early ninth centuries. The rationale, as I understand it, was (if you will pardon the anachronism) largely Hobbesian: Nations exist in a state of nature with one another, in which the possibility of war exists even absent actual conflict, without a single sovereign to provide assurance of mutual restraint. Muslim states escape from the state of nature with respect to one another by accepting the shared sovereignty of God and the authority of Islamic law. The film makes clear, however, that Saladin rejected this juridical framework, embracing in addition the possibility of negotiated peace through bilateral (and presumably multilateral) treaties, giving rise to an Abode of Covenant (dar al-'ahd) or Abode of Peace (dar al-sulh).

The film is provocatively ambiguous regarding Saladin’s stance toward a fourth, less developed concept, that of the Abode of Justice (dar al-adl), which encompasses non-Muslim states which adhere to basic principles of Islamic justice: religious freedom, access to the courts, public assistance for the needy, and so forth. Saladin’s ambivalence is reflected in his final exchange with Balian, who, after surrendering the city, asks Saladin “What is Jerusalem worth?”, by which I think he means “What is Muslim rule of Jerusalem worth?” Saladin’s initial reply is “Nothing”. Here Saladin echoes Balian’s earlier speech to the city’s defenders, that ultimately it does not matter which group (Muslim, Christian, or Jewish for that matter) rules the city, so long as they rule justly and all are permitted to worship as they choose. From the point of view of justice, the difference between Baldwin and Saladin is minimal, and is eclipsed by the lives lost in the transition of power. But as Saladin walks back toward his troops he stops, turns, and offers a different answer: “Everything.” Is this latter statement an expression of vanity? Piety? Tribalism? The film leaves it to the audience, but the exchange is, I think, a telling one: It shouldn’t matter. But it does.

With respect to the conduct of war, the film of course highlights the fact that Saladin spares the lives of the Christian and Jewish residents of Jerusalem. When Balian reminds him that Christian armies slaughtered the city’s Muslim inhabitants in 1096, Saladin replies “I am not those men. I am Saladin.” This statement can be taken a number of different ways, though I prefer to think of it as a reflection of the principle, perhaps best stated by Omar Ibn Al-Khattab, that the laws of war are categorical and not based on reciprocity. The film glosses over the widespread use of slavery during this period, though this may be excusable as the film is intended as a parable of contemporary conflicts (which is, unfortunately, not to say that slavery is no longer widespread). What is harder to overlook is the film’s silence regarding Saladin’s decision to offer no quarter and take virtually no prisoners in the Battle of Hattin, as well as his decision to offer Balian terms of surrender (as he had offered Guy before Hattin) only after a lengthy and bloody siege. The consequences are depicted, but the choice is not. This omission is unfortunate, since it limits the usefulness of the film for airing issues such as the Islamic law governing the treatment of prisoners of war and hors de combat. Still, the alarmism of right-wing critics should be tempered by Saladin’s concern for the lives of “the women, the children, the old, and the sick” and his desire to restrict the deaths caused by war to those who choose to fight. This is not a radical position, to be sure, but it is the position of Islamic law, stretching back to the prophecy and to the example of Muhammad and his companions.

Though Saladin, the great expositor of jihad, shared neither the worldview nor the tactics of those who today invoke that concept, he did confront and contend with a group which largely shared both. Several attempts were made on Saladin’s life by a secret society whose cavernous strongholds he later besieged. The society’s members referred to themselves as the fedayeen. Muslims who rejected their practice of murdering political leaders in public spaces called them hashshashins, from which the term “assassins” derives. Those who today invoke the concept of jihad to justify attacks on civilians as well as public figures follow the example not of Saladin but of his enemies.

For providing vivid (if not always historically accurate) illustrations of pressing issues in Islamic jurisprudence, Kingdom of Heaven is my Number 4 International Law Movie of 2005.

Extreme Movie Makeovers?

Caryn James, a critic for the NYT, claims this morning that a recent spate of long films (King Kong and Munich) need a nip and tuck, and should have followed the example of The New World, which just slimmed down as it went to wide release.  Having seen Munich just last night, I must register a slight dissent.  (Interestingly, Leon Wieseltier agreed with James: "The real surprise of Munich is how tedious it is.")  Whereas King Kong was extravagantly long (and over-hyped), Munich actually was no problem for me to sit through, notwithstanding my fidgety nature.  On the merits of the film, I thought Spielberg crafted a visually compelling portrait of the Israeli government's response to the Munich massacre, and the anguished difficulties faced by the individuals involved in that response.  Tedium aside, Leon's principal complaint targeted Tony Kushner's screenplay for pushing the two opposing sides of Palestinian (and other Islamist) terrorism and Israeli counter-terrorism into moral equipoise. He writes that the movie's "complexity" reduces to the following:

Palestinians murder, Israelis murder. Palestinians show evidence of a conscience, Israelis show evidence of a conscience. Palestinians suppress their scruples, Israelis suppress their scruples. Palestinians make little speeches about home and blood and soil, Israelis make little speeches about home and blood and soil. Palestinians kill innocents, Israelis kill innocents. All these analogies begin to look ominously like the sin of equivalence, and so it is worth pointing out that the death of innocents was an Israeli mistake but a Palestinian objective. (I am referring only to the war between the terrorists and the counterterrorists. The larger picture is darker. Over the years more civilians were killed in Israeli air strikes than in the Palestinian atrocities that provoked those air strikes. The justice of Israel's defense of itself should not be confused with the rightness of everything that it does in self-defense.)

For what it's worth, neither my fiancee nor I left the film with the same quiet anger that Wieseltier did, even though I usually find myself persuaded by his arguments on political life.  The movie's intensity also benefits from the large screen, so if you were thinking about holding back or waiting until Netflix, you might want to reassess -- if only to enjoy the dissonance of seeing Daniel Craig, the new (blond and blue-eyed!) James Bond, play an assassin who claims that the only blood he cares about is Jewish blood.

Update--my bad manners and early senior moment: I neglected to link to Paul's earlier post on Munich, with typically shrewd commentary.

Stealth and the Laws of War

If you rent only one film this year about a computer-piloted fighter jet which goes rogue after being hit by lightning (!) but ultimately comes to recognize the sanctity of human life, I highly recommend Stealth, the latest philosophical blockbuster from the makers of The Fast and the Furious. Stealth often succumbs to the limitations imposed by its genre, but the moments in which it surpasses them are well worth watching.

On two separate occasions, a team of elite fighter pilots declines to strike a primary target in a manner which will guarantee its destruction while minimizing risk to themselves because the foreseeable number of civilian deaths will be too high. In the first case, one pilot risks death himself to execute a maneuver which achieves the objective while minimizing loss of innocent life. In the second, the pilots shift their attention from the primary target (nuclear warheads which if destroyed would send a radioactive dust cloud into a neighboring village) to secondary targets (missile casings and firing platforms), leaving the primary targets for retrieval by ground forces. This may be the first time principles of discrimination and proportionality have been referenced in a mainstream action movie. If you know of others please share.

The movie also features two short but intelligent discussions of the ethical implications of routine use of pilotless warplanes. A commanding officer defends the program as a rational means to achieve strategic objectives without risking the lives of human pilots. A pilot responds that such technology, by decreasing the internalized costs of warfare, will reduce disincentives to engage in armed conflict. (“War is horrible. It’s supposed to be horrible. If war stops being horrible, what’s to stop us?”) Every good action movie is loud; this one is pretty bright (in spots) as well.

It might seem that these moments in the film are unconnected: the proportionality principle is a norm of jus in bello which applies to commanders and soldiers in the field, while the prospect of dead soldiers primarily bears on political decisions to initiate, perpetuate, or terminate conflict. Yet it occurs to me that they might be connected in at least two ways.

The first connection has to do with certain nativist biases which distort moral reasoning.  I heard an Air Force lawyer (who’s name I’ve long forgotten and have not been able to find) at the New York Bar Association around two years ago, who said that the problem with the proportionality principle is that military commanders value their soldiers’ lives far more than the lives of foreign civilians, particularly civilians from different ethnic or religious groups. Similarly, the political evaluation of armed conflict is measured in the numbers of (our) soldiers lost, not the number of (their) civilians killed. By contrast, in the film the pilots deviate from their mission plans to save the lives of foreign civilians of two different ethnicities.

The second connection has to do with the nature of the proportionality principle itself, which demands a comparison of apparently incommensurable values: the preservation of human life and the achievement of military objectives. This fragmentation of value prompts Michael Walzer to write that “because I don’t know how to measure the relevant values or how to specify the proportionality, and because I don’t think anyone else knows, I prefer to focus on the seriousness of the intention to avoid harming civilians, and that is best measured by the acceptance of risk.” Arguing About War 137 (2004). Absent human pilots, the internalized risk incurred by future aerial strikes will be limited to the possibility of losing planes to anti-aircraft fire.

This does not mean that nations that are serious about minimizing loss of innocent life cannot use pilotless planes. On the contrary, subject to norms adapted to keep pace with technological innovation, pilotless planes may lead to fewer civilian deaths and a stricter regime of legal oversight. The use of human pilots in a mission indeed speaks to the importance placed on its success. But the fear of losing human pilots understandably leads commanders to adjust mission parameters to protect their safety (e.g., increasing the altitude at which bombs are dropped or missiles fired, increasing pilot safety but decreasing accuracy), and for better or worse international law permits some trade-off between the lives of soldiers and the lives of civilians. By contrast, where pilotless planes are used, it will be difficult if not impossible to justify failure to accept essentially financial risks where necessary to reduce civilian deaths. Since the loss of pilotless aircraft lacks the moral weight and demoralization costs of lost soldiers, commanders can also be fairly expected to comply with stricter legal requirements. Pilotless aircraft may therefore make war (politically) easier to start yet (legally) harder to prosecute. That’s hardly a wash, of course, and certainly no cause for celebration, but it may be the best we can expect from “the moral pit where [we] appear to have settled, surrounded by enormous [and ever-advancing] arsenals.” Thomas Nagel, War and Massacre (1972).

For bringing the laws of war to mainstream movie audiences, Stealth is my Number 5 International Law Movie of 2005.

My Top Five International Law Movies of 2005

Hi everyone. This is my first time posting on an academic blog, so I hope you’ll be patient with me as I scale the learning curve. I plan to eventually post in a more straightforward fashion on criminal, international, and Islamic law, but I’ve decided to start off with . . .

My Top Five International Law Movies of 2005:

1. Munich

2. Syriana

3. The Constant Gardener

4. Kingdom of Heaven

5. Stealth (no, really)

I’ll post about each film in turn as it touches on and illuminates issues ranging from torture and revenge to corruption and humanitarian aid to the concept of jihad and Iranian constitutional culture. Hope you all enjoy.

Another Film for Business Associations

Yesterday at the AALS conference Larry Ribstein gave an entertaining presentation on the pedagogical uses of the Oliver Stone film Wall Street.  As Prof. Ribstein describes in this post, "[t]he film is particularly useful for teaching because of Stone’s self-consciously didactic intent, and his quite deliberate use of technique to present a particular slant on the issues."  Ribstein uses the film as a foil, illustrating why the lefty economics presented in the film are ultimately misguided.  He has an article further describing his approach here.

I would add a further film to Professor Ribstein's list of useful films for Business Associations.  Startup.com is a 2001 documentary about the rise and fall of a small Internet startup company.  [For those who haven't seen the movie, there are some spoilers below.] We begin as one of the firm's founders is leaving his job at Goldman Sachs to devote himself to govworks.com, an Internet portal that connected people to state and local government services.    The film takes us through the founders' efforts to secure VC funding, their first corporate retreat, the development of the website, an episode of corporate espionage, and the eventual firing of one of the firm's founders.  There are a number of moments in the film that illustrate important corporate law events:

• The firm's name.  One of the founders and the eventual CEO, Kaleil Tuzman, debates with the other founders over whether the site should be called govworks.com, nextown.com, or untocaesar.com, and does some market research at Gray's Papaya.
• The buyout of one of the firm's founders at the VC funding stage.  He walks away with $800,000 after an intense and personal round of negotiations.
• The VC negotiations.  At one point the two founders are trying to get in touch with their attorney and are berating him to the camera for his unavailability.  It turns out that their attorney, a partner at Wilson Sonsini, had been at the printer for another deal.
• The firing of one of the firm's founders.  After a back and forth between the founder and the board, he ends up getting escorted out of the building, and the security guard is warned not to let him back on the premises.

Although the film is intended for a general audience, it is actually quite sophisticated, and even law students might not pick up some of the nuances without prompting.  But it is a real company with real people suffering real consequences.  The level of access secured by the filmmakers is truly astounding.  We see almost everything.  And for that reason, I think it dovetails nicely with a highly stylized film like Wall Street.

Taking Stock of 2005...

And so, 2005 comes to a close, capped off by the Graham Amendment (for the final version, see pages 341-44 of this PDF), the McCain Amendment (see page 340 of the same PDF), Snoopgate, and Snoopgategate.

Last night, some friends of mine and I were discussing over dinner two widely disparate questions: What was the best movie of 2005, and what was the most important legal development of 2005? (This is the problem with hanging out with friends who are lawyers -- we lose all sense of perspective.)

Anyway, I have to confess that I was hard-pressed to answer either question. Whether or not it's been a down year for movies, those movies that have succeeded have generally been rather dark (e.g., Syriana, Revenge of the Sith, Harry Potter). Even Charlie & the Chocolate Factory was a darker version of the Gene Wilder original.

The parallels between Hollywood and the year of legal developments were, at least to us, striking. Kelo and the Ten Commandment cases [Van Orden and McCreary County] notwithstanding, this was not the same kind of show-stopping year in the Supreme Court as 2004 was... Maybe the nominations of Chief Justice Roberts and Judge Alito will prove to be the most lasting legal developments, but short of that, lots of wrangling over torture, spying, and secret prisons -- along with painful questions about governmental responsibility in emergencies -- have been the dominant legal stories of at least the second half of 2005. And I had to stop and think to remember what the dominant legal story of the first half was, although Terri Schiavo has to be the runaway favorite (with Booker and its accompanying mess a close second).

And so, with 2006 already in full force on the other side of the world, what was (1) the best movie of 2005; and (2) the most important legal development?

My votes, for what very little they're worth, are for Batman Begins (the movie) and, probably controversially, a pair of due process decisions by the Supreme Court that have flown at least somewhat beneath the radar -- Castle Rock v. Gonzales and Wilkinson v. Austin.

Plenty of other developments were far more newsworthy, and arguably more important to a narrower class of cases. But both Castle Rock and Austin exemplify two separate, but equally important points: In general, contemporary due process analysis tilts heavily in the government's favor, especially where law enforcement or prison conditions are concerned (as in these two cases); and it is only an increasing misnomer to cast Justices Stevens, Souter, Ginsburg, and Breyer as the Court's "liberals." After all, Castle Rock was 7-2, and Austin was unanimous.

But, I'm equally sure that I'm in the minority in viewing Castle Rock and Austin as such important developments. So, let the disagreements begin!!

(And Happy New Year to one and all -- even Yankees fans).

Kevorkian biopic?

Bioethicist Wesley Smith writes, over at National Review Online, that a laudatory biopic is in the works about Jack "Dr. Death" Kevorkian.  In do doing, Smith reminds us why even those who support (and I do not) a legal or moral right to assisted suicide should regard Kevorkian as a ghoul.

Ding the King

My osita had a friend who rented out a movie theatre last night for a holiday party so we went to watch the Peter Jackson remake of King Kong.  (This, btw, seems like a good way to host a party for the holidays--no drunks, no misplaced lampshades, and sno-caps for all!) 

I haven't seen the original, but I do have a few unlearned reactions.  First: don't bother. It's horribly long and terribly difficult to suspend disbelief for much of the movie.  Second, Jack Black was miscast.  He's best off playing a funny goof, not a dull though dedicated and deceitful movie producer.  At times, Naomi Watts looks indistinguishable from Nicole Kidman; no real complaints about her performance.  The real stars of the movie are the visual effects:  so King Kong plays in Jurassic Park, all the while performing a few Jackie Chan-like fight scenes with sharp-toothed dinosaurs, under the watchful eye of scary aboriginals.

Most disturbing to me were the lurking cultural semiotics of the film, canvassed in this piece by Joshua Bearman in LA Weekly.  Nice blonde and large hairy beast=primate porn? Althouse has some contrasting reactions. 

The "Narnia" Wars?

We've been hearing about the "Christmas wars" . . . now here come the "Narnia wars."  Recently, in the Guardian, Polly Toynbee wrote ("Narnia represents everything that is most hateful about religion"):

Most British children will be utterly clueless about any message beyond the age-old mythic battle between good and evil. Most of the fairy story works as well as any Norse saga, pagan legend or modern fantasy, so only the minority who are familiar with Christian iconography will see Jesus in the lion. After all, 43% of people in Britain in a recent poll couldn't say what Easter celebrated. Among the young - apart from those in faith schools - that number must be considerably higher. Ask art galleries: they now have to write the story of every religious painting on the label as people no longer know what "agony in the garden", "deposition", "transfiguration" or "ascension" mean. This may be regrettable cultural ignorance, but it means Aslan will stay just a lion to most movie-goers.

Can it really be true that "43% of people in Britain . . . couldn't say what Easter celebrated"?  Or, am I off-base in being so surprised?  In any event, after re-capping the story of The Lion, the Witch, and the Wardrobe, Toynbee says (among other . . . bracing things):

Over the years, [many] have had uneasy doubts about the Narnian brand of Christianity. Christ should surely be no lion (let alone with the orotund voice of Liam Neeson). He was the lamb, representing the meek of the earth, weak, poor and refusing to fight. Philip Pullman - he of the marvellously secular trilogy His Dark Materials - has called Narnia "one of the most ugly, poisonous things I have ever read".

Hmm.  I wonder why Ms. Toynbee is so confident that Christ should "surely" be no lion.  (In any event -- and she might not know this -- there is "lamb" imagery in the third Narnia book, The Voyage of the Dawn Treader).  By the way, there is (I think) a "law point" here:  As we see time and again, one challenge in enforcing a constitutional prohibition on "endorsements" or "establishments" of religion is identifying precisely what it is that certain symbols or symbolic acts mean, and to whom?  But back to Toynbee:

[H]ere in Narnia is the perfect Republican, muscular Christianity for America - that warped, distorted neo-fascist strain that thinks might is proof of right. . . .  The godly will reap earthly reward because God is on the side of the strong. This appears to be CS Lewis's view, too. In the battle at the end of the film, visually a great epic treat, the child crusaders are crowned kings and queens for no particular reason. Intellectually, the poor do not inherit Lewis's earth.

Does any of this matter? Not really. Most children will never notice. But adults who wince at the worst elements of Christian belief may need a sickbag handy for the most religiose scenes. The Guardian film critic Peter Bradshaw gives the film five stars and says, "There is no need for anyone to get into a PC huff about its Christian allegory." Well, here's my huff.

Lewis said he hoped the book would soften-up religious reflexes and "make it easier for children to accept Christianity when they met it later in life". Holiness drenches the Chronicles. When, in the book, the children first hear someone say, mysteriously, "Aslan is on the move", he writes: "Now a very curious thing happened. None of the children knew who Aslan was any more than you do; but the moment the Beaver had spoken these words everyone felt quite different. Perhaps it has sometimes happened to you in a dream that someone says something which you don't understand but in the dream it feels as if it had enormous meaning ..." So Lewis weaves his dreams to invade children's minds with Christian iconography that is part fairytale wonder and joy - but heavily laden with guilt, blame, sacrifice and a suffering that is dark with emotional sadism.

Children are supposed to fall in love with the hypnotic Aslan, though he is not a character: he is pure, raw, awesome power. He is an emblem for everything an atheist objects to in religion. His divine presence is a way to avoid humans taking responsibility for everything here and now on earth, where no one is watching, no one is guiding, no one is judging and there is no other place yet to come. Without an Aslan, there is no one here but ourselves to suffer for our sins, no one to redeem us but ourselves: we are obliged to settle our own disputes and do what we can. We need no holy guide books, only a very human moral compass. Everyone needs ghosts, spirits, marvels and poetic imaginings, but we can do well without an Aslan.

I suppose it is always good to encounter and engage views that seem so alien (and, to me, mean-spirited).  I'm one of those who loved (and loves) the Narnia stories.  (And, I prefer -- I admit -- Aslan to the cheesy "Jesus as my baseball teammate" pictures that some kids had when I was growing up).  But, it is clear that I read very different books -- beautiful, evocative, mysterious, romantic, life-affirming, humanist books -- than did Ms. Toynbee.

For a different take, by the way, check out Michael Nelson's piece in The Chronicle Review ("For the Love of Narnia"), which responds to Pullman and other Narnia-critics.

Bohemia is Dead (i.e., What's Bothering Me About Rent)

Maybe I'm procrastinating from finishing my Civil Procedure exam, but I've been bothered all weekend by the movie version of Rent, which I saw late last week, but which it's taken me some time to digest (and to justify writing anything about it, especially here; thanks to the rest of the posts today for inspiring me to write about something not law-related).

Now, granted, any movie prominently featuring the Ninth Circuit's San Francisco courthouse as a backdrop (it's the big, white marble building in some of the background shots) can't be all bad.  [Note my tenuous law connection.] But as someone who first saw the play on Broadway as a teenage New Yorker in the fall of 1996, and who was just floored by its raw power, something's missing here.

Maybe it's the fairly obvious omission of a rather important plot line from the play -- that Roger's ex-girlfriend, April, "left a note saying we've got AIDS before slitting her wrists in the bathroom." (In the movie, we just know that she dies, and there's not even a hint about how.) Maybe it's the slightly less obvious omission of various bits of dialogue dealing with poverty, drug use, AIDS, and the very direct connection between the three, such as the omission of the "Christmas Bells" montage late in Act I. (Much less obvious until you aggregate the differences between the play and the movie, virtually all of which include some drug or AIDS-related dialogue.)

Maybe it's the differences highlighted by Jesse McKinley in the New York Times on November 25 (I'd link to it, but there's no pass-through) -- that the movie is frustrating to New Yorkers because there are so many obvious geographical and physical inconsistencies (e.g., the subway station in the middle of Tompkins Square Park), necessitated by changes in the City since 1990.

I searched fairly far and wide among newspapers and magazines for a reviewer who had some of my angst, as opposed to other angst about the movie, and found at least a somewhat decent candidate in Jorge Morales, writing in (surprise, surprise), the Village Voice. Here's his take:

Instead of bringing a universal love story to the living present, the film traps it in a frozen past like a prehistoric bug in amber, as removed from moviegoers' experience as a dusty diorama at the American Museum of Natural History. I was reminded of the unhip hippies in Milos Forman's Hair, released 12 long years after the Summer of Love, at the height of the disco era. Rent is about as timely now as Gigi.

But my problem with Rent isn't really what I take to be Morales's: that it's anachronistic in a way that it only barely was in the mid-1990s (based on a New York circa 1989/1990 that, even by 1995, no longer was). Because, the difference in emphasis on poverty, AIDS, and drug use notwithstanding, the differences between the play and the movie aren't all that pronounced. Say what you will about it, but the movie is pretty damn faithful. Indeed, Angel's decline in health and ultimate death are even more haunting on screen than they were on Broadway.

So what's really different? Maybe it's context. When Rent hit Broadway in April 1996, it was revolutionary, not in what it did, but in what it stood for. Rent was a message--no, Rent was the message embedded in the frenetic "La Vie Boheme": "Actual Reality. Act Up. Fight AIDS." That line is still in the movie, but the spark, the impetus to do something, is gone.

World AIDS Day came and went last Thursday, with a good (i.e., any) amount of coverage, but no true mandate to people like me. Sure, for many who saw the play, seeing the play was itself as close as they got to acting up. But even then, the play was cathartic in a way that's hard to explicate, but impossible to deny. Even for those, like me, who struggled to identify with most of the characters battling a crippling disease, the importance of and empathy with Mark -- the perfectly "normal," healthy white guy who can only dream of having the energy, passion, and lust of his dying friends -- is impossible to understate.

Now, in contrast, to the extent that the activist message survives in the movie, it's retrospective -- activism was a good idea... AIDS was a problem. Was. So, to a degree, Jorge Morales's review captures exactly what's bothering me. But he attributes it to the filmmaking. I attribute it to context. It's the same story. It's a very different audience. And that's what's sad to me. Although the meaning is largely unchanged, the message is completely gone. At best, "No Day But Today" has turned into "No Day But 1996." Morales seems to think that this was inevitable:

[T]he truth is that by the time Rent opened on Broadway almost a decade ago, it was already a period piece. Giuliani had made the squeegee men disappear, and he'd sent snipers and a tank into the East Village to clear out the squats.

I don't buy it. Because Rent, on Broadway, was still profoundly important in 1998, 1999, 2000, etc. Because New York already had dramatically and irrevocably changed, whether for the better or the worse, by 1996, when I saw it with my Aunt as a wide-eyed 16-year-old. It's not that New York is different now than it was when Rent opened; that's beside the point. It's that we are -- and the world is -- different. And what have we accomplished in those 10 years? Well, if nothing else, we've gentrified Alphabet City.

Oh, and I prefer Daphne Rubin-Vega as Mimi, too... (and, to be fair, Sandra Oh as Alexi Darling).

Zissou, where are you?

The other day I watched the DVD of the Life Aquatic with Steve Zissou.  I had been meaning to watch this Wes Anderson movie for a while, though for a strange reason.  While I was in private practice, I represented a pro bono client in the 9^th Circuit who was, to my mind, wrongfully convicted for a bank fraud for which his brother was the main culprit.  (Happily, my client has just been released from prison, in part due to Booker.)  Unfortunately, the client had to face a related prosecution in New York, where he was being represented by none other than the real life Steve Zissou, a criminal defense lawyer in EDNY.  According to this article, Zissou had spoken to the film’s producers in advance to give permission for the use of his name in the movie.  I figured there might be some connection – alas, there was none.

Anyway, the movie, for which I held high expectations, disappointed, especially through the first hour, which could barely hold my attention due to its meandering pacing.  The second half was a bit better, and Willem Dafoe has some scene-stealing moments, but unless you’re an addict of all things Bill Murray and Wes Anderson, I’d advise that you just watch the Royal Tenenbaums again.  Or perhaps try L’Auberge Espagnole, which is a delightfully funny movie about a French student and his flatmates in Barcelona, with the bewitching Audrey Tatou in a small role as the protagonist’s girlfriend, who is left behind in Paris. 

Justice Brandeis and Yoda

Eugene Volokh explains the connection over at the VC. 

Some Questions About Star Wars

I recently saw the new Star Wars movie, and although I try generally to post on more legal and weighty topics, I just can’t resist saying a few words.  Having grown up on Star Wars, I had to see the new movie within 24 hours of its release, but I’m proud I at least did not go to the midnight showing and could wait until the next morning.  That’s only because the first two prequels were so terrible. 

I’ve been pondering some deep issues about the Star Wars series, and although the movies are made to require a suspension of disbelief, I still find myself asking these questions.  Warning – spoilers below.

1. How could anybody write that dialogue?  Lines like Padme saying to Darth Vader: “You’re a good person, don’t do this”?  This hilarious review in the New Yorker captures it best:

The prize for the least speakable burst of dialogue has, over half a dozen helpings of “Star Wars,” grown into a fiercely contested tradition, but for once the winning entry is clear, shared between Anakin and Padmé for their exchange of endearments at home:

“You’re so beautiful.”
“That’s only because I’m so in love.”
“No, it’s because I’m so in love with you.”

For a moment, it looks as if they might bat this one back and forth forever, like a baseline rally on a clay court. . . .

Why didn’t anybody on the set say something when they were filming?  How could the crew refrain from laughing?   

2. How come Jedi Masters are killed so easily?  Do they put any schmo who picks up a light saber on the Jedi Council? 

3. We learn that the Death Star is being constructed as Episode III ends.  Why does it take some 20 years to complete, as it is finished not long before the Episode IV of Star Wars begins?  Were there construction delays?  Union problems?   After all, this isn't the Freedom Tower.

4. I still can’t understand the reason why Anakin goes to the dark side.  He wants to save his wife, but Yoda’s advice is to just let her die.  So if you care about a loved-one and don’t just want to let them go, then you’re in danger of becoming an evil madman.  The way of the “good side” of the force is to just shrug off the deaths of the ones you love and don’t bother lifting a finger to try to save them.  If that’s the good side of the force, the dark side must be really dark.   

5. In the original Star Wars, why is it that the storm troopers, described at one point as amazingly accurate shooters, can’t seem to hit anything or anybody with their blasters? If you’re creating a clone army, shouldn't you clone somebody who can hit a target?  The Emperor would have won if he just created storm troopers who had better aim.  And why do the storm troopers wear all that clunky armor if one blaster shot will kill them?  Heck, a rock thrown by an Ewok will kill them too. 

6. Others have pointed out this one, but how in such a high-tech society is it a surprise that Padme has twins?  And if Darth Vader can be saved despite being burned to a crisp, why does Padme die despite such wondrous medical technology?

7. How does Obi Wan Kenobi age so much in the 20 or so years between Episode III and IV?  After all, although old, Count Dooku leaps around like a cricket in his battles, but poor Obi Wan goes from a spry young man in Episode III to a very old man in Episode IV who can barely wave his light saber.   And why is Yoda on his deathbed by the time of Episode VI, only about 30 years after he fights like an acrobat on speed in Episodes II and III?  After all, if Yoda is over 800 years old, why should 30 more Yoda-years make such a big difference?

8. Why does R2D2 suddenly go from being a battle bot who can fly and do amazing tricks to a much less functional droid by Episode IV?  If C3PO’s memory is erased, why does R2D2 (whose memory isn’t erased) not tell him what’s going on sometime during the 20 years they hang out together between Episode III and IV?  Why keep it all a big secret? 

9. Why hide Luke on the planet where Darth Vader grew up with people he knows?  And if you want to hide Vader's son from him, why do you fail to change Luke’s last name from Skywalker?  The witness-protection program sure isn’t up to snuff in the Star Wars galaxy. 

10. Why does Yoda say he’ll miss Chewbacca?  Since when are they such great friends?  And how is it that at the very day and moment that Luke and Obi Wan enter the cantina bar in Episode III they just happen to run into Chewbacca?  [An interesting fact I learned while typing this post -- "Chewbacca" is part of Microsoft Word's spell check dictionary, as it corrected my misspelling.  It doesn’t recognize “tortious” or other commonly-used legal terminology, but apparently it is well-programmed for Star Wars.]  In an another amazing coincidence, R2D2 winds up in the hands of Luke.  In a galaxy of millions of planets and gazillions of life forms, it just so happens that R2D2 is purchased by Luke Skywalker.  Please don’t tell me the odds of that happening.  I guess that the Force works in mysterious ways.

Updating the Dark Side

Lucas created the first Star Wars stories during Vietnam and now bloggers are debating the relevancy of the finale to current politics.

W(h)ither British Social Realism?

Mark Steyn has this interesting obituary in the June issue of the Atlantic on James Callaghan, former Labor Prime Minister and predecessor to Margaret Thatcher.  Steyn's barbed comments on the state of Britan in the seventies has me, for some reason, reflecting on the state of class-conscious British cinema.  What is a grim social realist, who yearns to depict the harsh life of the working classes at the hands of the ruling classes, to do if actual conditions, which are being driven by those ruling classes, tend to move toward Pareto superiority?

Well, you could ignore reality, but that wouldn't be much good to a realist; or you could ignore the the marginally improved lot of the working classes in favor of the absolutely worst off; or you could simply change the subject.  I'm struck by how often the third option has been the one taken, consciously or unconsciously, by the champions of this class-conscious cinematic approach.  Mike Leigh's subjects in the last decade or so have included other eras altogether (Vera Drake, Topsy Turvy), social issues (as opposed to economic issues, and often involving the bourgeoisie rather than the working classes (Secrets & Lies, Career Girls)), or both (Vera Drake again).  Ken Loach hasn't ignored his standard hobby horses altogether, but one can't help but note that he seems to have caught the time-travel bug too (Land and Freedom, on the Spanish Civil War), the social issue bug (Fond Kiss...Ae), and the plain-old travel bug (Carla's Song, about Nicaragua, and Bread and Roses, about the rough lot of the underclass -- in Los Angeles).

What an unfortunate by-product of (relative) economic prosperity!