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Misha and the Wolves

I watched Misha and the Wolves on Netflix over the weekend. I had not known this story. From the mid-'90s to 2008, Misha Defonseca told the world that she was  a Belgian-born Jew hidden with a Catholic family (and given a name change) when her parents were deported and that beginning in 1941 (at the age of 7) she walked across Germany and into Poland looking for her parents, killed a German soldier, escaped from the Warsaw Ghetto, and hid in the woods, taken care of by a pack of wolves. The story unraveled in 2008 when multiple investigations revealed that the story, including Defonseca's identity, were fabricated.

According to the movie, Defonseca's story fell apart following a falling out with the small publisher, Mt. Ivy Press, owned by Jill Daniel, that published the book (which did not sell in the U.S.) and sold overseas rights (where it was a huge bestseller in Europe, spawning a French-language film adaptation). Defonseca won a $ 22.5 million judgment against Daniel. Trying to figure out how to challenge that judgment, Daniel stumbled across a document that caused her to question Defonseca's story; she brought in outside experts to investigate and eventually get to the truth. In 2008, Defonseca acknowledged that she fabricated the story. Daniel successfully sued for vacatur of the Defonseca judgment.

The movie does a poor job covering the litigation. This is unsurprising. The movie is about Defonseca's story, not the litigation, so the details of what happened in court are unimportant, other than the outcome and how Daniel responded to the outcome. The film's theme is "Defonseca conned Daniel, then Daniel exposed the lies because she was looking to get out from under an unjust judgment." Defonseca's lawyer hints at serious wrongdoing. Daniel's description of the trial suggests the jury was swayed by the heartbreaking (and false) testimony of a purported Holocaust victim and Daniel was perceived as the monster who ripped her off despite having extensive records of making payments.

Three cases with several written opinions arose from this mess: 1) Trial and appellate opinions in the underlying royalties dispute; 2) two appellate opinions from Daniel's lawsuit to vacate the prior judgment; and 3) Daniel's bankruptcy proceeding. Reading through the published opinions offers a different story that is relevant to how we view Daniel and the entire thing. A more accurate and detailed discussion of the litigation might have produced a movie with a different tone.

First, the original dispute was not between Defonseca and Daniel/Mt. Ivy. Daniel brought in her then-friend Vera Lee to work with Defonseca (who is neither a writer nor a native English speaker), then pushed Lee off the book. Lee initiated the original litigation naming Mt. Ivy, Daniel, and Defonseca as defendants, as well as the company Daniel hired to sell the book in Europe. Lee won an $ 11 million+ judgment that stands--the court in the second action declined to vacate that judgment and the bankruptcy court in 2017 denied discharge. Lee receives little or no mention in the film, even though Daniel's fallout with Lee, not Defonseca, precipitated the proceedings that precipitated the unraveling of Defonseca's lies. Also, Defonseca's $ 22 million+ judgment  against Daniel and Mt. Ivy came on a cross claim, not an original dispute between Defonseca against Daniel. Civ Pro remains your friend.

Second, the state trial court described "the totality of the defendants' conduct as having been infused with a high enough level of rascality to have raised an eyebrow, even to those inured to the 'rough and tumble' of the marketplace." The findings of wrongdoing in the trial court opinion and the first court of appeals opinion are detailed. They include undisclosed side contracts, unmet promises about capacity, self-dealing, an offshore foreign subsidiary to which rights were assigned, agents exceeding the scope of their authority, and ceasing domestic marketing efforts within a few months of publication. The film makes a lot of Daniel's efforts to get the book into Oprah's book club; in the film, Daniel says Defonseca refused to go on Oprah when invited, while the court of appeals says Daniel canceled. Anyway, this sounds like more than  "Defonseca played to the jury's sympathies and the jury ignored all the evidence because I looked like a monster."

On a side note, the Oprah-appearnace-that-never-was gets a lot of play in the film. The show recorded a segment (which never aired, of course) of Defonseca at a nearby wolf preserve, and the movie spends a lot of time with the wolf-expert/owner of the preserve. The owner makes much of Defonseca's rapport with the wolves during that segment, I guess to suggest they had found one of their own, thereby verifying her story. Daniel expresses disbelief that Defonseca refsued to go on Oprah when it could have meant millions in sales. The suggestion is that this refusal undercut Daniel's marketing efforts and was a first red flag--Defonseca canceled because she knew the story could not stand up to scrutiny and did not want to expose herself to Oprah's withering interrogation. The latter point is belied by Defonseca making TV appearances in Europe, including to promote the film adaptation.

Third, in the opinion affirming vacatur of Defonseca's judgment, the court of appeals concluded:

This case has had a legal life of over fifteen years; All involved have been bloodied. Defonseca's story has been shown to be false. As for Daniel, she also has been shown to have acted highly inappropriately, as evidenced by the still valid multimillion dollar judgment against her in favor of Vera Lee, the one least blameworthy person in the entire affair. Hopefully the saga has now come to an end.

Again, this is a different message than what the film presents.

Finally, one film review questioned the motives of various actors in this drama. It argues that Defonseca's motives remain unknown but that Daniel was motivated by greed and a desire for publicity. From the movie alone, this criticism makes no sense. Daniel is a book publisher--her job is to find good stories, help tell them to the world, publicize them, and make money. Daniel did just that, or at least tried. The film mentions but downplays two things that give the greed point more resonance: the underlying business relationship before the fraud was exposed as found by the courts and Daniel's failure to investigate pre-publication suggestions that Defonseca's story did not seem credible. The film mentions the latter a few times in passing, but does not emphasize it in the way it comes out in the opinions.

You can't handle a real trial

I have read many discussions about Lt. Cmdr Galloway (the Demi Moore character) in A Few Good Men being an awful lawyer. One commentator went so far as to label her the real villain of the film. She is bad, although she did introduce the concept of strenuously objecting, which I use in flagging students' unnecessary use of adverbs.

Like in any legal movie, the courtroom histrionics are nonsense and a lot of what Kaffee did was inappropriate in its place. But it lays out facts and evidence that could have been worked into a realistic trial. So something I have thought about for years: Did Kaffee need Jessup to confess to ordering the Code Red? Or could he have created reasonable doubt in a real case?

Prosecution's evidence:

    • Dawson and Downey attacked Santiago, stuffed a rag in his mouth, and Santiago died.

    • The doctor testified that the rag was poisoned, largely based on the results of the autopsy and the cause of death.

    • Kendrick testified that he ordered the men in the unit not to touch Santiago, however much they might want to.

    • Santiago was scheduled to be transferred the next morning, so Kendrick and Jessup had not reason to "train" him through a Code Red.

    • Dawson had motive--Santiago threatened to report Dawson for a fence-line shooting. It is not clear what Downey's motive was--following Dawson, I guess.

Defense evidence:

    • Dawson had previously ignored orders and helped a Marine who was being denied food as a Code Red; his performance ratings and the speed of his promotions dropped.

    • Code Reds (Codes Red?) were a thing at Gitmo, it was in the air, and everyone knew about them.

    • Dawson protected Santiago. The men in the unit knew that and would not have given him a Code Red because Dawson would not have allowed it.

    • Santiago had not packed and had not told family that he was being transferred (although he was supposedly being transferred not discharged, so I am not sure whom he was supposed to tell).

    • Men follow orders or people die.

    • We did not see it, but there almost certainly would have been other positive character evidence on the defendants, who were, before this, "poster-child marines."

    • The doctor's testimony changed--initially inconclusive, then certain about the presence of poison.

Kaffee's closing: Much of what Kaffee does in examining witnesses, especially Jessup, would properly have occurred during closing and could have been effective then.

    • Inconsistency between the supposed transfer and the supposed order not to perform a Code Red, given that men follow orders. Both were designed for Santiago's protection, but there is no reason to issue both. Combined with Santiago not having packed and being asleep four hours before his flight, it seems unlikely that he was being transferred. So the plan was to tell the men not to touch Santiago.

    • Dawson had gotten in trouble for ignoring orders, so he would not have ignored Kendrick's order not to touch Santiago. Especially given his history of protecting weaker marines, including Santiago. Dawson would not disobey an order anymore and he would not attack a weaker marine. For him to do this, he must have been ordered.

Reasonable doubt?

A Professor's Modest Dream

My undergraduate alma mater, the University of Michigan, holds an annual summer event up here in northern Michigan, generally highlighting an achievement of somebody affiliated with the university.  This year it was an interview with Hendrik Meijer, the CEO of the Meijer super-grocery store chain, but also something of a scholar, who just published a biography of Senator Arthur Vandenberg. (Michael Barr, long-time Michigan law professor and recently appointed dean of the Gerald R. Ford School of Public Policy, ably conducted the interview.)

But I digress slightly.  Absolutely my favorite course at Michigan was the fall 1973 edition of "Introduction to Film," taught by Professor Frank Beaver (left), only three years out from having received his Ph.D.  I remember that course chapter and verse, from conceptual montage to the shocking "gun" scene in Edwin S. Porter's The Great Train Robbery to the assessment of that neat new film, American Graffiti, to Professor Beaver's admiration of Haskell Wechsler's Medium Cool. (I wrote my paper for the course on Deliverance.)

A couple years ago, I recognized Professor Beaver at one of these events, introduced myself, and began spouting back to him chunks of lectures he had delivered more than forty years before.  Since then we catch up annually, as we did last night, on new movies.  Professor Beaver still writes on film for Michigan Today, the alumni publication.

I think I took his course in his fourth year of teaching.  I "accosted" him roughly forty years later.  Because of my late entry into academia, the equivalent for me would be a former student approaching me in roughly 2051, when I will be a spry 97 years old.  I can only hope.

There Had Been An Awakening, Have You Seen It?

I am going off topic a bit (please, no haters in the comments). When I was five years old, Star Wars changed my life. Gone was the world of G-rated Disney fare, in was science-fiction and fantasy. My question going into the film was: can J.J. Abrams recapture the magic of my youth?  

In a way, he does.  The film is a nostalgia fueled remake of the original Star Wars.  A good discussion of the movie can be found here and a more positive take here.  For all of the criticisms, it is still an exciting return to a galaxy, far, far away. It is not surprising that the filmmakers took this approach after discarding  George Lucas' ideas for Episode VII.  Rather than go through a point by point critique of The Force Awakens, I'll offer a few theories to the many unanswered questions.

• In the film, there is both a New Republic and a Resistance to the First Order (remnants of the Old Empire).  It begs the question of what the relationship is between the two.  I proffer that the Rebellion split into two at the conclusion of Return of the Jedi.  One faction, tired of war, favored forming a new government and leaving the Empire alone.  The other formed the Resistance led by Princess Leia to continue the fight against inter-Galactic tyranny.
• Why is Princess Leia not a Jedi! Haunted by the memory of his failure in the tree on Dagobah and Anakin Skywalker's turn to the Dark Side of the Force, Luke does not trust himself to train Leia as an adult.  Thus, he adopts the old Jedi method of training them from early childhood.
• Coruscant must be occupied by the First Order.  Why otherwise is it so vital to find the first Jedi Temple.

 

Unlikely Holiday Films

One of my favorite "unlikely" holiday films, which has many useful teachable moments of clips to use in the classroom, is "Trading Places" (1983).  This brilliant film is still one of the best business films ever made, and, personally, I think it's one of Murphy's and Aykroyd's best.  It is also an "unlikely" holiday film because it just happens to be set during the holidays, and the season is not its primary focus.  Instead, the film provides commentary on "nature versus nurture" and how good fortune can be fleeting (if left to someone else, such as the Dukes), or ready for the taking (with a little teamwork and creativity).  What are some other great films set during the holiday season that have useful clips for the classroom?

Did You Hear the One About the Lawyer…

…who brought home a shoplifter for Christmas?  This is the premise for one of my favorite “lawyer” holiday films – “Remember the Night” (1940) – and one that almost made the final cut for my book (please pardon the plug) that employs classic films to demonstrate important lawyering skills.  What’s interesting is that, despite its warm and gentle premise, this film likely never would have been made today – or, conversely, it would now be made much differently.  This film is airing on TCM later this week. For those who show film clips in their classes, there are many here to consider using, especially the trial scenes. 

Speaking of films, I plan to spend my visit this month focusing on classic films and professionalism in the law.  I am honored to visit again in our shared effort to keep this wonderful Blog thriving in Dan’s memory.

Hoping to help Kickstart a notable new death penalty documentary

I have not posted here in a long time, but I am eager now to promote widely an important film project from some folks in London focused on modern US death penalty stories.  I am partial to the project because one of my former students, Allen Bohnert, OSU Moritz College of Law grad ('06), is one key subject being documented in his role as current lead counsel in the long-running Section 1983 litigation over Ohio's lethal injection protocols.

This notable project is still in production, and the filmmakers are currently fundraising for financial support to help allow them to finish filming.  The Kickstarter campaign is available here; lots of interesting items are available (such as signed copies of Bryan Stevenson's book, Just Mercy, one-off pieces of art and the film itself) for any donation over $25.  I have been told that they will not be able to effectively finish this film without additional help for further funding.

The film itself is titled The Penalty, and it is to be a 90-minute feature documentary examining the current state of America's capital punishment system.  While some other documentaries have focused on death row stories through the lens of condemned prisoners, this film looks more closely at people involved not on the row:  lawyers, family members, politicians, campaigners, law enforcement, and others.  A snippet from some filming so far is available at  www.thepenaltyfilm.com

I understand that the filmmakers have been particularly focused on following (1) my former student, Assistant Federal Public Defender for the Southern District of Ohio Allen Bohnert through the problematic execution of Dennis McGuire and its fallout, and (2) Louisiana death row exoneree Damon Thibodeaux as he puts his life back together after wrongful conviction and exoneration.  I believe they are also filming lots of other characters from the capital punishment universe, including many experts in the field such as Debby Denno, Jeanne Woodford, David Dow, Kathryn Kase, Peter Neufeld, Richard Dieter and Clive Stafford-Smith.

Finally, I have been told that if you have any ideas on stories that the filmmakers should look at, or have ideas of people they should talk to (e.g., grant-giving foundations, media outlets, campaign groups, or others), the filmmakers are looking to spread their network far and wide.  You can pass on ideas by emailing [email protected] or [email protected].

Cross-posted at Sentencing Law and Policy.

The Poor are Still Losing: Gideon's Empty Promise

This past weekend I spent some time thinking about the future of indigent public defense and what role, if any, defense lawyers can play in a system beset by racism and classism.  First, I read a provocative essay by Paul Butler, "Poor People Lose: Gideon and the Critique of Rights," in the Yale Law Journal's most recent issue, which contains over twenty articles (all available for free download) by law professors and lawyers reflecting on the 50th anniversary of Gideon v. Wainwright.  

Professor Butler makes a strong case for the idea that the focus on rights discourse -- the right to counsel at trial, the right to counsel during plea negotiations, the right to Miranda, the right to a jury trial -- ultimately has little impact on a criminal justice [or juvenile justice] system in which poor people nearly always lose.  Why do they lose?  Because, as Butler explains, protecting defendants' rights is much different than protecting defendants:  "What poor people, and black people, need from criminal justice is to be stopped less, arrested less, prosecuted less, incarcerated less."  Providing a lawyer -- especially one who is underpaid, overworked, and under-resourced -- does little to change this calculus.  As Butler reminds us, the reason that being poor and African American substantially increases the risk of incarceration has more to do with class and race than with the quality -- or lack thereof -- of the indigent defense system.  

So, what do we do about it?  That, Butler acknowledges, is the hard part.  We certainly don't discourage law students from becoming public defenders, because on an individual level, they do help clients [more on this below].  But what is the alternative?  Michelle Alexander has urged defendants to take their cases to trial, putting a stop to the vicious plea mill that has subsumed the adversarial process, and to "crash the justice system."  Butler has called for "racially based" jury nullification for nonviolent, victimless crimes as well as decriminalizing or legalizing drugs.  I'm not convinced that these specific strategies in and of themselves will catalyze a social reform movement large enough to alter the system, but it's clear that nothing should be discounted, for the situation is dire.  

With all of this percolating in my mind, I happened to watch the new HBO documentary, "Gideon's Army," which follows three public defenders working in under-resourced counties in Georgia and Mississippi.  The film was engrossing and offered (what seemed to me, at least) a realistic portrayal of the challenging and gruelling nature of indigent defense.  The three young PDs -- two women and one man, all African-American -- were dedicated and driven, although one understandably walks away from the job when she can't pay her bills to support herself and her son.  The film concludes (perhaps for marketing purposes) with a happy ending -- an acquittal after a jury trial, which made me -- a total sap -- cry as the PD was hugged by her (young black male) client and his (low-income) single mother.  

But as the credits rolled, I didn't feel much like recruiting baby PDs for this "army" or donating to the organization that inspired the documentary -- the Southern Public Defender Training Center (SPDTC) (now called "Gideon's Promise"), led by the dynamic (white male) Jon Rapping.  Instead, I wanted to crash the system.  The film's explicit message is that there's a "battle" going on in which dedicated and hard-working PDs can win if only enough of them sign up, endure slave wages, and get down with representing one poor person of color (and the occasional white poor person) after another, as our prisons only continue to expand.

The director, Dawn Porter, draws clumsy parallels to the civil rights movement (and even offers a cameo by John Lewis who appears at a fund-raising event for SPDTC), but there's no acknowledgement that the lawyers who represented civil rights workers in the south had clear goals and objectives, while these PDs are fighting for...what exactly?  By acting as cogs in a broken machine, one that even Rapping admits is "hell,"  they are not bringing about systemic change.  Yes, they may make a difference to an individual defendant, but there is no talk of broader-based action -- such as a demand for a living wage, reasonable caseloads, or enough funding to perform basic investigative tasks and forensic testing.  Let's be real -- how could there be this sort of activism?  These lawyers are barely hanging on, working 15-16 hours/day and scrambling for change to buy enough gas to get them to the courthouse.    

Don't get me wrong -- I was a proud public defender for ten years, and as a clinical professor, I still represent the same client population; I am heartened whenever one of my students enters this field.  But I would never suggest that the work of the average PD, like the ones featured in the film and in most offices across the country, actually transforms the populations they serve or that the appointment of a lawyer -- the RIGHT to a lawyer -- helps dismantle the incarceral state.  

I would also be reluctant to recruit young lawyers for this work using the pitch championed in the film, because as romantic as it sounds, it will inevitably attract people for all the wrong reasons, such as one of the women who balks when a client feels no remorse for his heinous crime.  She thought she was on the "right" side of the war, only to find that the lines are not so easily drawn.  As Travis Williams, my favorite PD in the film said, "I don't see how you can do this job for any period of time and not love it.  Either this is your cause or this ain't."  He's the guy who has tattooed the names of his clients who have been convicted after trial on HIS OWN back.  He will be a career PD, and his clients will be truly blessed to have him on their side.  He also recognizes, however, that the work is thankless, that the conditions are unlikely ever to change, and that it's more of a marathon than a war.  A marathon with no end in sight.    

Your thoughts?  Please share in the comments.   

 

In a Galaxy Far, Far Away...They All Lived Happily Ever After

Yesterday's news that Disney will be absorbing Lucasfilm -- and releasing "Episode 7" of the Star Wars series in 2015 -- has prompted strong reactions along multiple fronts.  I've never thought of myself as a "fan boy," and I've never been to a convention. Still, the original Star Wars series certainly was a formative part of my childhood -- helping to define a generation and a moment in history.  Empire was the first movie I ever saw in a "theater" (although it was a second-run on a military base, so it was some time after the original screening).  I had the Millenium Falcon toy and an imperial walker, and a number of little plastic humanoids that provided hours of entertainment.

Like most people of a certain age, I hated the "new" trilogy (although I personnally didn't really have any feelings about reworking of the originals).  Frankly, if there is going to be a new trilogy set in the Star Wars universe, the fact that anyone other than George Lucas would call the shots is a good thing. 

But Disney isn't just anyone.  This is Team Rodent. 

They say that parenthood changes one's worldview.  I am still too sleep deprived three and half years into that adventure to have a worldview.  But I will say that parenting changes one's view of Disney.

Without Baby Einsteins, I don't think I could have ever convinced my 10 month old to eat food.  Without Jake and the Neverland Pirates, my three-year-old would be far less handy to have around for boarding parties.

One thing I will say about Disney movies is that, even though they are "family oriented," these things are dark.  (And the DVD settings aren't aligned perfectly to allow fast-forwarding past, say, the kidnapping scene in Tangled or the "bad bear" attacks in Brave).  So I think we can expect some of the sadness of the original Star Wars and less of the silliness of the prequels.

And wonderfully, we will now perhaps have a trilogy of Star Wars movies that merits "The Force and the Law" conferences and speculation about the impact of a personhood amendment on Wookiees.

Signing Off and Remembering Andy

Multitasking has its limits -- especially in the midst of a major move. As I prepare to head south to Savannah Law School, I wistfully regret not having more time to post on Prawfs during the month of June as frequently as I would have liked, but, as always, I enjoyed my stay. This time around, I'd like to sign off with a posting dedicated to the late and always wonderful Andy Griffith. His first film, A Face in the Crowd (1957) is featured in Advocacy to Zealousness, but Griffith is best known as a fictitious television sheriff and lawyer. Whenever I watch A Face in the Crowd, I think about Griffith's wonderful range as an actor and artist, and how he was celebrated for only a small portion of what he was capable of conveying on the big and small screens of film and television, respectively. Having experienced Griffith as Lonesome Rhodes makes me see Andy Taylor and Ben Matlock a little differently -- with an increased awareness of the depth beneath the surface of affability, and a realization of Griffith's strategic choice to go further in his career by staying in second gear indefinitly rather than shifting to fourth for a brief several miles. He personified some of the most beloved characters related to law and order in popular cultural history. Much like Lonesome, yet in a vastly more positive and productive way, Griffith read his audience and went with what they wanted, what "worked" for the long haul, and he seemed to be at peace with his decision to embrace his "brand" throughout his career. Do we also do this as law professors, or do we continue to stretch and grow throughout our careers? If you've ever shown a Griffith clip in class, which one(s) did you use?

NFL Bounty Scandal - Pre-Saints?

I feel I’m coming a little late to the party, given that this is my first guest post and we’ve almost hit the middle of June.  I’ll blame it on Law and Society in Hawaii, although Dave didn’t seem to have problems posting while he was there…

 I am hoping this month to post some things on drugs, guns, and general border crime stuff – all the fun stuff in my wheelhouse.  I also have enjoyed looking at some things on Fast and Furious and the Ted Stevens prosecution too, so I might say some stuff there too.   We’ll see how far we get.

 But first, I’ve been doing some research on prominent prosecutions gone wrong (hence the interest in both Fast and Furious and the Ted Stevens prosecution, and we can likely chalk the John Edwards prosecution up there now as well).  One of the “case studies” I’m looking at is from the Archer Daniels Midland price-fixing investigation in the mid-90s (and thankfully, Kurt Eichenwald put everything together in a nice book for me to read: The Informant (published in 2000 and made into a movie staring Matt Damon in 2009, although I can’t find the movie anywhere here in Laramie so I haven’t seen it yet)).  While reading through the book, I noticed something that seems to have a played a prominent role in sports news this past few months, so I wanted to comment slightly on that.

 By way of background:

the ADM investigation involved a number of FBI agents, AUSAs, folks from Main Justice and other officials investigating ADM allegedly engaging in price fixing with other foreign corporations.  The FBI became involved when Mark Whitacre (“the Informant”) started cooperating and recorded numerous conversations with officials from other companies and persons working at his own company.  Whitacre seems to have acted at times as a rogue agent (and also seems to have engaged in embezzlement from ADM while working as a CI (confidential informant)) and ultimately got a pretty high chunk of time in prison.  While my research deals with the problems inherent in having a prosecutor run such an investigation, that isn’t the point of this post. 

 To make a long post short (too late), I noticed some information about the NFL bounty scandal in the book.  On p. 465 of the book, Eichenwald describes a FBI interview of Ron Ferrari, one of Whitacre’s salesmen and someone the FBI thought might be involved in the price-fixing.  Ferrari played linebacker for the 49ers during the Joe Montana years, and the FBI questioned him about $25,000 in a safe-deposit box (thinking it might have come from price-fixing).  Ferrari tells the FBI this is money from “unofficial bonuses” he received while playing football for the 49ers.  He goes on to indicate that sometimes, when there were unpopular players on the other team, the coaches would pay “little bonus payments” for a “particularly vicious hit on one of those unpopular guys.”  This seems exactly what the NFL bounty scandal is all about, but this is an allegation of it happening in the mid-80s, a long time before the Saints “bountygate” came out.

 So, after my exhaustive internet research on this issue (about 2 minutes on Google), as far as I can tell, this information never made it to the NFL.  In 2000, Eichenwald provides evidence about these bounties occurring in the NFL, and yet, no mention is made of that within the Saints “bounty-gate” discussion.  Of course, I’m not surprised that none of this information really made much of a dent back in 2000 because a) it isn’t likely that anyone associated with the NFL read Eichenwald’s book, and b) the bounty-gate stuff seems more of a big deal now given all of the concussion-related news and suits that have arisen in the past year or so.

 Of course, now that I’ve written this post, I’m sure I’ll be getting called by Roger Goodell… 

 Thanks for letting me post, and I look forward to trying to post some interesting things here while I’m here.    

 

The Virtual Honesty Box

As a fan of comic book art, I'm often thrilled to encounter areas where copyright or trademark law and comic books intersect. As is the case in other media, the current business models of comic book publishers and creators has been threatened by the ability of consumers to access their work online without paying for it. Many comic publishers are worried about easy migration of content from paying digital consumers to non-paying digital consumers. Of course, scans of comics have been making their way around the internet on, or sometimes before, a given comic's onsale date for some time now. As in other industries, publishers have dabbled with DRM, and publishers have enbraced different (and somewhat incompatible) methods for providing consumers with authorized content. Publishers' choices sometimes lead to problems with vendors and customers, as I discuss a bit below.

While services like Comixology offer a wide selection of content from most major comics publishers, they are missing chunks of both the DC Comics and Marvel Comics catalogues. DC entered a deal to distribute 100 of its graphic novels (think multi-issue collections of comic books) exclusively via Kindle. Marvel Comics subsequently struck a deal to offer "the largest selection of Marvel graphic novels on any device" to users of the Nook. 

Sometimes exclusive deals leave a bad taste in the mouths of other intermediaries. DCs graphic novels were pulled from Barnes & Noble shelves because the purveyor of the Nook was miffed. Independent publisher Top Shelf is an outlier, offering its books through every interface and intermediary it can. But to date, most publishers are trying to make digital work as a complement to, and not a replacement for, print.

Consumers are sometimes frustrated by a content-owner's choice to restrict access, so much so that they feel justified engaging in "piracy." (Here I define "piracy" as acquiring content through unauthorized channels, which will almost always mean without paying the content owner.) Some comics providers respond with completely open access. Mark Waid, for example, started Thrillbent Comics with the idea of embracing digital as digital, and in a manner similar to Cory Doctorow, embracing "piracy" as something that could drive consumers back to his authorized site, even if they didn't pay for the content originally.

I recently ran across another approach from comic creators Leah Moore and John Reppion. Like Mark Waid, Moore and Reppion have accepted, if not embraced, the fact that they cannot control the flow of their work through unauthorized channels, but they still assert a hope, if not a right, that they can make money from the sales of their work. To that end, they introduced a virtual "honesty box," named after the clever means of collecting cash from customers without monitoring the transaction. In essence, Moore and Reppion invite fans who may have consumed their work without paying for it to even up the karmic scales. This response strikes me as both clever and disheartening.

I'll admit my attraction to perhaps outmoded content-delivery systems -- I also have unduly fond memories of the 8-track cassette -- but I'm disheartened to hear that Moore and Reppion could have made roughly $5,500 more working minimum wage jobs last year. Perhaps this means that they should be doing something else, if they can't figure out a better way to monetize their creativity in this new environment. Eric Johnson, for one, has argued that we likely don't need legal or technological interventions for authors like Moore and Reppion in part because there are enough creative amateurs to fill the gap. The money in comics today may not be in comics at all, but in licensing movies derived from those comics. See, e.g., Avengers, the.

I hope Mark Waid is right, and that "piracy" is simply another form of marketing that will eventually pay greater dividends for authors than fighting piracy. And perhaps Moore and Reppion should embrace "piracy" and hope that the popularity of their work leads to a development deal from a major film studio. Personally, I might miss the days when comics were something other than a transparent attempt to land a movie deal.

As for the honesty box itself? Radiohead abandoned the idea with its most recent release, King of Limbs, after the name-your-price model adopted for the release of In Rainbows had arguably disappointing results: according to one report, 60% of consumers paid nothing for the album. I can't seen Moore and Reppion doing much better, but maybe if 40% of "pirates" kick in a little something into the virtual honesty box, that will be enough to keep Moore and Reppion from taking some minimum wage job where their talents may go to waste.

Breaking the Net

Mark Lemley, David Post, and Dave Levine have an excellent article in the Stanford Law Review Online, Don't Break the Internet. It explains why proposed legislation, such as SOPA and PROTECT IP, is so badly-designed and pernicious. It's not quite clear what is happening with SOPA, but it appears to be scheduled for mark-up this week. SOPA has, ironically, generated some highly thoughtful writing and commentary - I recently read pieces by Marvin Ammori, Zach Carter, Rebecca MacKinnon / Ivan Sigal, and Rob Fischer.

There are two additional, disturbing developments. First, the public choice problems that Jessica Litman identifies with copyright legislation more generally are manifestly evident in SOPA: Rep. Lamar Smith, the SOPA sponsor, gets more campaign donations from the TV / movie / music industries than any other source. He's not the only one. These bills are rent-seeking by politically powerful industries; those campaign donations are hardly altruistic. The 99% - the people who use the Internet - don't get a seat at the bargaining table when these bills are drafted, negotiated, and pushed forward. 

Second, representatives such as Mel Watt and Maxine Waters have not only admitted to ignorance about how the Internet works, but have been proud of that fact. They've been dismissive of technical experts such as Vint Cerf - he's only the father of TCP/IP - and folks such as Steve King of Iowa can't even be bothered to pay attention to debate over the bill. I don't mind that our Congresspeople are not knowledgeable about every subject they must consider - there are simply too many - but I am both concerned and offended that legislators like Watt and Waters are proud of being fools. This is what breeds inattention to serious cybersecurity problems while lawmakers freak out over terrorists on Twitter. (If I could have one wish for Christmas, it would be that every terrorist would use Twitter. The number of Navy SEALs following them would be... sizeable.) It is worrisome when our lawmakers not only don't know how their proposals will affect the most important communications platform in human history, but overtly don't care. Ignorance is not bliss, it is embarrassment.

Cross-posted at Info/Law.

Six Things Wrong with SOPA

America is moving to censor the Internet. The PROTECT IP and Stop Online Piracy Acts have received considerable attention in the legal and tech world; SOPA's markup in the House occurs tomorrow. I'm not opposed to blacklisting Internet sites on principle; however, I think that thoughtful procedural protections are vital to doing so in a legitimate way. Let me offer six things that are wrong with SOPA and PROTECT IP: they harm cybersecurity, are wildly overbroad and vague, enable unconstitutional prior restraint, undercut American credibility on Internet freedom, damage a well-working system for online infringement, and lack any empirical justification whatsoever. And, let me address briefly Floyd Abrams's letter in support of PROTECT IP, as it is frequently adverted to by supporters of the legislation. (The one-word summary: "sellout." The longer summary: The PROTECT IP letter will be to Abrams' career what the Transformersmovie was to that of Orson Welles.)

1. Cybersecurity - the bills make cybersecurity worse. The most significant risk is that they impede - in fact, they'd prevent - the deployment of DNSSEC, which is vitally important to reducing phishing, man-in-the-middle attacks, and similar threats. Technical experts are unanimous on this - see, for example, Sandia National Laboratories, or Steve Crocker / Paul Vixie / Dan Kaminsky et al. Idiots, like the MPAA's Michael O'Leary, disagree, and simply assert that "the codes change." (This is what I call "magic elf" thinking: we can just get magic elves to change the Internet to solve all of our problems. Congress does this, too, as when it includes imaginary age-verifying technologies in Internet legislation.) Both bills would mandate that ISPs redirect users away from targeted sites, to government warning notices such as those employed in domain name seizure cases. But, this is exactly what DNSSEC seeks to prevent - it ensures that the only content returned in response to a request for a Web site is that authorized by the site's owner. There are similar problems with IP-based redirection, as Pakistan's inadvertent hijacking of YouTube demonstrated. It is ironic that at a time when the Obama administration has designated cybersecurity as a major priority, Congress is prepared to adopt legislation that makes the Net markedly less secure.
2. Wildly overbroad and vague- the legislation (particularly SOPA) is a blunderbuss, not a scalpel. Sites eligible for censoring include those:
   •  
     • primarily designed or operated for copyright infringement, trademark infringement, or DMCA § 1201 infringement
     • with a limited purpose or use other than such infringement
     • that facilitate or enable such infringement
     • that promote their use to engage in infringement
     • that take deliberate actions to avoid confirming high probability of such use

   If Flickr, Dropbox, and YouTube were located overseas, they would plainly qualify. Targeting sites that "facilitate or enable" infringement is particularly worrisome - this charge can be brought against a huge range of sites, such as proxy services or anonymizers. User-generated content sites are clearly dead. And the vagueness inherent in these terms means two things: a wave of litigation as courts try to sort out what the terminology means, and a chilling of innovation by tech startups.

3. Unconstitutional prior restraint - the legislation engages in unconstitutional prior restraint. On filing an action, the Attorney General can obtain an injunction that mandates blocking of a site, or the cutoff of advertising and financial services to it - before the site's owner has had a chance to answer, or even appear. This is exactly backwards: the Constitution teaches that the government cannot censor speech until it has made the necessary showing, in an adversarial proceeding - typically under strict scrutiny. Even under the more relaxed, intermediate scrutiny that characterizes review of IP law, censorship based solely on the government's say-so is forbidden. The prior restraint problem is worsened as the bills target the entire site via its domain name, rather than focusing on individualized infringing content, as the DMCA does. Finally, SOPA's mandatory notice-and-takedown procedure is entirely one-sided: it requires intermediaries to cease doing business with alleged infringers, but does not create any counter-notification akin to Section 512(g) of the DMCA. The bills tilt the table towards censorship. They're unconstitutional, although it may well take long and expensive litigation to demonstrate that.
4. Undercuts America's moral legitimacy - there is an irreconciliable tension between these bills and the position of the Obama administration - especially Secretary of State Hillary Clinton - on Internet freedom. States such as Iran also mandate blocking of unlawful content; that's why Iran blocked our "virtual embassy" there. America surrenders the rhetorical and moral advantage when it, too, censors on-line content with minimal process. SOPA goes one step farther: it permits injunctions against technologies that circumvent blocking - such as those funded by the State Department. This is fine with SOPA adherents; the MPAA's Chris Dodd is a fan of Chinese-style censorship. But it ought to worry the rest of us, who have a stake in uncensored Internet communication.
5. Undercuts DMCA - the notice-and-takedown provisions of the DMCA are reasonably well-working. They're predictable, they scale for both discovering infringing content and removing it, and they enable innovation, such as both YouTube itself and YouTube's system of monetizing potentially infringing content. The bills shift the burden of enforcement from IP owners - which is where it has traditionally rested, and where it belongs - onto intermediaries. SOPA in particular increases the burden, since sites must respond within 5 days of a notification of claimed infringement, with no exception for holidays or weekends. The content industries do not like the DMCA. That is no evidence at all that it is not functioning well.
6. No empirical evidence - put simply, there is no empirical data suggesting these bills are necessary. The content industries routinely throw around made-up numbers, but they have been frequently debunked. How important are losses from foreign sites that are beyond the reach of standard infringement litigation, versus losses from domestic P2P networks, physical infringement, and the like? Data from places like Switzerland suggests that losses are, at best, minimal. If Hollywood wants America to censor the Internet, it needs to make a convincing case based on actual data, and not moronic analogies to stealing things off trucks. The bills, at their core, are rent-seeking: they would rewrite the law and alter fundamentally Internet free expression to benefit relatively small yet politically powerful industries. (It's no shock two key Congressional aides who worked on the legislation have taken jobs in Hollywood - they're just following Mitch Glazier, Dan Glickman, and Chris Dodd through the revolving door.) The bills are likely to impede innovation by the far larger information technology industry, and indeed to drive some economic activity in IT offshore.

The bills are bad policy and bad law. And yet I expect one of them to pass and be signed into law. Lastly, the Abrams letter: Noted First Amendment attorney Floyd Abrams wrote a letter in favor of PROTECT IP. Abrams's letter is long, but surprisingly thin on substantive legal analysis of PROTECT IP's provisions. It looks like advocacy, but in reality, it is Abrams selling his (fading) reputation as a First Amendment defender to Hollywood. The letter rehearses standard copyright and First Amendment doctrine, and then tries to portray PROTECT IP as a bill firmly in line with First Amendment jurisprudence. It isn't, as Marvin Ammori and Larry Tribe note, and Abrams embarrasses himself by pretending otherwise. Having the government target Internet sites for pre-emptive censorship, and permitting them to do so before a hearing on the merits, is extraordinary. It is error-prone - look at Dajaz1 and mooo.com. And it runs afoul of not only traditional First Amendment doctrine, but in particular the current Court's heightened protection of speech in a wave of cases last term. Injunctions affecting speech are different in character than injunctions affecting other things, such as conduct, and even the cases that Abrams cites (such as Universal City Studios v. Corley) acknowledge this. According to Abrams, the constitutionality of PROTECT IP is an easy call. That's only true if you're Hollywood's sockpuppet. Thoughtful analysis is far harder.

Cross-posted at Info/Law.

Copyright and Your Face

The Federal Trade Commission recently held a workshop on facial recognition technology, such as Facebook's much-hated system, and its privacy implications. The FTC has promised to come down hard on companies who abuse these capabilities, but privacy advocates are seeking even stronger protections. One proposal raised was to provide people with copyright in their faceprints or facial features. This idea has two demerits: it is unconstitutional, and it is insane. Otherwise, it seems fine.

Let's start with the idea's constitutional flaws. There are relatively few constitutional limits on Congressional power to regulate copyright: you cannot, for example, have perpetual copyright. And yet, this proposal runs afoul of two of them. First, imagine that I take a photo of you, and upload it to Facebook. Congress is free to establish a copyright system that protects that photo, with one key limitation: I am the only person who can obtain copyright initially. That's because the IP Clause of the Constitution says that Congress may "secur[e] for limited Times to Authors... the exclusive Right to their respective Writings." I'm the author: I took the photograph (copyright nerds would say that I "fixed" it in my camera's memory). The drafters of the Constitution had good reason to limit grants of copyright to authors: England spent almost 150 years operating under a copyright-like monopoly system that awarded entitlements to a distributor, the Stationer's Company. The British crown had an excellent reason for giving the Company a monopoly - the Stationer's Company implemented censorship. Having a single distributor with exclusive rights gives a government but one choke point to control. This is all to say that Congress can only give copyright to the author of a work, and the author is the person who creates / fixes it (here, the photographer). It's unconstitutional to award it to anyone else.

Second, Congress cannot permit facts to be copyrighted. That's partly for policy reasons - we don't want one person locking up facts for life plus seventy years (the duration of copyright) - and partly for definitional ones. Copyright applies only to works of creative expression, and facts don't qualify. They aren't created - they're already extant. Your face is a fact: it's naturally occurring, and you haven't created it. (A fun question, though, is whether a good plastic surgeon might be able to copyright the appearance of your surgically altered nose. Scholars disagree on this one.) So, attempting to work around the author problem by giving you copyright protection over the configuration of your face is also out. So, the proposal is unconstitutional.

It's also stupid: fixing privacy with copyright is like fixing alcoholism with heroin. Copyright infringement is ubiquitous in a world of digital networked computers. Similarly, if we get copyright in our facial features, every bystander who inadvertently snaps our picture with her iPhone becomes an infringer - subject to statutory damages of between $750 and $30,000. Even if few people sue, those who do have a powerful weapon on their side. Courts would inevitably try to mitigate the harsh effects of this regime, probably by finding most such incidents to be fair use. But that imposes high administrative costs, and fair use is an equitable doctrine - it invites courts to inject their normative views into the analysis. It also creates extraordinarily high administrative costs. It's already expensive for filmmakers, for example, to clear all trademarked and copyrighted items from the zones they film (which is why they have errors and omissions insurance). Now, multiply that permissions problem by every single person captured in a film or photograph. It becomes costly even to do the right thing - and leads to strategic behavior by people who see a potential defendant with deep pockets.

Finally, we already have an IP doctrine that covers this area: the right of publicity (which is based in state tort law). The right of publicity at least has some built-in doctrinal elements that deal with the problems outlined above, such as exceptions when one's likeness is used in a newsworthy fashion. It's not as absolute as copyright, and it lacks the hammer of statutory damages, which is probably why advocates aren't turning to it. But those are features, not bugs.

Privacy problems on social networks are real. But we need to address them with thoughtful, tailored solutions, not by slapping copyright on the problem and calling it done.

Cross-posted at Info/Law.

Behind the Scenes of Six Strikes

Wired has a story on the cozy relationship between content industries and the Obama administration, which resulted in the deployment of the new "six strikes" plan to combat on-line copyright infringement. Internet security and privacy researcher Chris Soghoian obtained e-mail communication between administration officials and industry via a Freedom of Information Act (FoIA) request. (Disclosure: Jonathan Askin and I represent Chris in his appeal regarding this FoIA request.) The e-mails demonstrate vividly what everyone suspected: Hollywood - in the form of the music and movie industries - has an administration eager to be helpful, including by pressuring ISPs. Stay tuned.

The Pirates' Code

There have been a number of attempts to alter consumer norms about copyright infringement (especially those of teenagers). The MPAA has its campaigns; the BSA has its ferret; and now New York City has a crowdsourced initiative to design a new public service announcement. At first blush, the plan looks smart: rather than have studio executives try to figure out what will appeal to kids (Sorcerer's Apprentice, anyone?), leave it to the kids themselves.

On further inspection, though, the plan seems a bit shaky. First, it's not actually a NYC campaign: the Bloomberg administration is sockpuppeting for NBC Universal. Second, why is the City even spending scarce taxpayer funds on this? Copyright enforcement is primarily private, although the Obama administration is lending a helping hand. Third, is this the most effective tactic? It seems more efficient to go after the street vendors who sell bootleg DVDs, for example - I can buy a Blockbuster Video store's worth of movies just by walking out the front door of my office. 

Yogi Berra (or was it Niels Bohr?) said that the hardest thing to predict is the future. And the hardest thing about norms is changing them. Larry Lessig's New Chicago framework not only points to the power of norms regulation (along the lines of Bob Ellickson), but suggests that norms are effectively free - no one has to pay to enforce them. This makes them attractive as a means of regulation. The problem, though, is that norms tend to be resistant to overt efforts to shift them. Think of how long it took to change norms around smoking - a practice proven to kill you - and you'll appreciate the scope of the challenge. The Bloomberg administration should save its resources for moving snow this winter...

Inside Job

 

Last night I finally got around to watching the academy award winning documentary "Inside Job." I had been planning to watch it for some time, but somehow ended up finding other things to watch instead. I enjoyed it and found it to be very interesting, but I imagine that readers of prawfs might be split on its merits. A good number of professors (primarily business/economics ) get skewered pretty well in the interviews.

Here are some of my favorite quotes from the movie:

Andrew Sheng: Why should a financial engineer be paid four times to 100 times more than a real engineer? A real engineer build bridges. A financial engineer build dreams. And, you know, when those dreams turn out to be nightmares, other people pay for it

Michael Capuano: You come to us today telling us "We're sorry. We won't do it again. Trust us". Well i have some people in my constituency that actually robbed some of your banks, and they say the same thing.

(My paraphrase) "As I recall I was revising a textbook." (You'll have to watch the movie for context on this one)

Coming soon to a theatre near you ...

"Moneyball" the movie. The moneyball concept gets a lot of play in the realm of academic hiring and performance analysis. Of course, that get's no play in this movie - but if Brad Pitt plays moneyball general manager Billy Beane, then who is Billy Beane in law and what actor plays him in Moneylaw the  movie?

 

Your favorite trial performance in a movie

I'd like to start by thanking Dan Markel and the rest of the Prawfs gang for inviting me to guest blog this month. I thought I'd start off with the fun post, although that implies that my remaining posts will be serious --  which is not something that I'm willing to commit to.

What is your favorite trial scene performance by an actor in a film? I imagine that certain iconic performances come to mind such as Gregory Peck as Atticus Finch in "To Kill A Mockingbird." I am hoping that people will rccall some not so famous performances as well as the well-known ones. One of my favorite trial scene performances is by a not-so-famous actor, Lane Smith. Smith appeared as a character actor in a good number of television shows and movies during his long career, including "Kojak," "The Rockford Files,"Dallas," "Red Dawn," "My Cousin Vinny," and "The Legend of Bagger Vance," among others. However, it was his role as Panama City, Florida criminal  defense attorney Fred Turner in The Hallmark Hall of Fame's "Gideon's Trumpet" that caught my attention.

In addition to its star, Henry Fonda (playing the title role), the made for TV film boasted a number of other good actors, including John Houseman (as Chief Justice Earl Warren), Jose Ferrer (as Abe Fortas), and Faye Wray in her last film role. I could be wrong, but I believe that Harry Dean Stanton also makes an (uncredited) appearance. The film can be a bit hard to find but I have a taped version that I use in class on occasion - I guess I'll be in trouble when they quit equipping classrooms with the old VCRs. I am a bit reluctant to post the scene, which is available on Youtube, as it is a bit long and comes in two parts. However, I think that it highlights very well the difference that a good lawyer can make in a trial outcome. But enough about my favorite trial performance in a movie - what's yours?

The Short Sharp Paper Series and a movie review too.

Since I would clearly never engage in icky acts of overt self-promotion, and I cringe :-) at the thought of others saying nice things about me or my work, that leaves it to me to sometimes use the blog responsibly and say nice things about the work of others. During this last semester when I had the privilege of a teaching release, I probably read more drafts than I usually do, sometimes to the consternation of those whose drafts I had read and commented on.  But I've also had the chance to continue reading lots of finished products and lately I've found all sorts of wonderful stuff worth sharing. Of course, I should be writing this up on JOTWELL, which was created with the smart idea that we should share our reactions about papers that we liked (lots)--it's a concept I love and I have even contributed, but, dammit Jerry, writing up a JOTWELL entry takes time. Fortunately, Facebook status updates don't take much time...and this post is sort of an agglomeration of some recent status updates--talk about synergy. 

Those of you on FB with me may have noticed that I have unwittingly started a series of touts or vouches for sharp and usually short papers that may be of broader interest. This has proven useful to a few of you, or so you say, Tamar and Sarah. In any event, I figured some of you may enjoy knowing what I've found really good or helpful to me recently, but I should note that I won't be offering explanations of why I think they're good. These will be like my occasional Ruth Franklin-inspired movie reviews. [Btw, I saw Win Win a couple weeks ago on a date night--worth watching, but for Netflix, not necessarily in the theater, at least if you triage your movie time as I do under the constraining presence of little monsters angels in your blessed and beleaguered life.]

So, without further adieu, here are a few disparate links in no particular order:

a) my Robin West brain crush continues unabated: here's some stuff of hers with which I recently slaked my thirst

b) a short YLJ student note by now prof Stuart P. Green on challenging prosecutorial inaction

c) an awesome YLJ essay by Jeremy Waldron from a few years back on democracy and judicial review--and Fallon's concise but cogent response, which I've now just read based on someone else's rec.

d) a nifty and short essay by Sasha Volokh addressing and critiquing the progressive case for cost-benefit analysis as propounded by Ricky Revesz and Michael Livermore

e) and finally for today, a recent piece by Sean Williams on self-altering injury and the hidden harms of hedonic adaptation, which just came out in the cornell lr.

Enjoy your reading time as summer beckons. And feel free to share similar positive reax to the work of others (non-anonymously) in the comments.

P.S. Did y'all hear FOP Alex Long on NPR the other day dishin' on his Bob Dylan and the Law stuff? You can find the link here. 

The Rule of Law Trampled on the Red Carpet

Director Roman Polanski in France on the set of the 1979 film Tess, following his arrest and flight from U.S. authorities. (Promotional photo from Columbia Pictures)

Roman Polanski has just been freed by Swiss authorities who were detaining him under house arrest. Switzerland decided against extraditing Polanski to California, where the Oscar-winning film director has been wanted since 1978 after he drugged, raped, and sodomized a 13-year-old girl.

Several pundits and a slew of Hollywood glitterati who are friends or wannabe-friends of Polanski have decried his arrest and continuing status as a fugitive.

They point out mitigating circumstances: Polanski lived through the Holocaust, with his father surviving Mauthausen and his mother perishing in Auschwitz. Then in 1969, Polanski's pregnant wife, Sharon Tate, was murdered by Charles Manson's followers.

Does Polanski's tragedy-filled life mean we should show him leniency? I don't think so. I think he should spend the rest of his life in prison. But that's not my point here. What saddens me is the contemptuous regard for the rule of law that's been put on display by this debacle.

Arguing for clemency for Polanski is, in my opinion, deeply wrongheaded. But such a position is not beyond all bounds of decency. What is outrageous – actually morally bankrupt – is for people to defend Polanski yet not speak up on behalf of other sexual predators.

It is common that violent and sexual offenders have suffered abuse in their pasts. Many offenders endured lives of utter horror and ceaseless despair before committing the crimes that put them behind bars. If Polanski deserves empathy, why not them? Where are the throngs of adoring celebrities – who gave the absent Polanski a standing ovation at the 2003 Academy Awards – to advocate for pedophile rapists who are poor, unsuccessful, and bereft of artistic talent or handsome charm? 

Our courthouse statuary upholds blind justice as the ultimate virtue. But oh-so many people do not. For the blithe cowards stumping for Polanski, it is natural and right-feeling to balance the scales of justice with eyes wide open. And that's a deep shame.

Patent Movies

I just watched a wonderful movie about software patents: Patent Absurdity (Luca Lucarini 2010). It's freely downloadable, and I heartily recommend showing it if you teach Intellectual Property or Patent Law. The best thing about it is, it's pitched at the perfect level for law students. It's not dumbed down, but it's also not so technical that you need to be a full-fledged patent lawyer to enjoy it. And with a 29-minute runtime, I'm planning on showing it in-class. It puts an astonishing amount of material out there very quickly, giving you a feel for a ton of doctrine, industry practice, and historical context. (My favorite part is the Cold War nostalgia graphic depicting the software superpowers' patent arms race, which then explodes into patent-litigation armageddon.) 

Another great patent movie is Flash of Genius (Universal 2008). A feature-length film, it's better for a homework assignment or for showing on an optional movie night. As general-audience fare, it's light on doctrine, but it's filled with insight into the idea of the heroic inventor in American culture. It also provides a compelling portrait of the draining nature of the courts and the litigation process.

I should note that patents and movies share an important historical intersection. Many people credit Edison's patents on motion picture technology, and the desire of nascent film studios to stay away from Edison's East Coast business operations, as a key factor in the development of Hollywood and Southern California entertainment industry. 

"Up for Grabs"

I conclude the acquisition by capture section of my property class with a discussion of the controversy that erupted over the ownership of Barry Bonds’ 73d home run ball back in 2001.  For those who don’t know the story, when Bonds hit the record-establishing homer into the right-field stands at PacBell Park, it ended up in the hands of a fan named Patrick Hayashi.  Soon, however, another bleacher denizen, Alex Popov, claimed that he had initially caught the ball and that Hayashi had wrested it away from him in the ensuing scrum (a contemporaneous video gave some credence to Popov’s claim).  The case was litigated in state court amid much fanfare, and the court solomonically divided ownership of the ball equally among Popov and Hayashi.  By the time the court issued its decision, though, Bonds’ star had faded enough that the ball fetched a subpar sum at auction—not even enough to cover the litigants’ attorney’s fees.

 

When we were discussing the case in class this year, a student astutely pointed out that there is a documentary about the case, called Up for Grabs.  I discovered that the film is available on Netflix, and found it both amusing and riveting.  The film has many themes (notably greed and the thoroughgoing American obsession with fame) but it’s a great law film as well (the courtroom testimony of the various witnesses to the Popov/Hayashi scuffle seem like they could have been lifted from a Christopher Guest parody). 

 

One law theme that emerges from the film that’s of particular interest to me is that the public unanimously expressed scorn for Popov and Hayashi’s decision to litigate the ball’s ownership rather than informally settling the issue.  Below, I say a bit more about what this means about public (mis)perceptions of how the law works, and the apparently strong preference that the public has for informal rather than formal resolution of property disputes.

Throughout Up for Grabs, interviewees agree that Popov and Hayashi should simply privately agree to split the value of the ball equally between them, rather than seeking to have a court award it to one of them.  Even Barry Bonds makes this point when he is asked about the dispute at a press conference.  Each litigant expresses a different reason for pursuing the suit; Hayashi seems to think his physical ownership of the ball is dispositive, while Popov has video evidence and lots of witnesses that he thinks will show he is the ball’s rightful owner.

 

But the public’s insistence that the parties should split the value of the ball puzzles me, because it seems to assume that neither party has a superior claim.  Popov is, more or less, saying that Hayashi stole the ball from him.  If that’s right, then Hayashi is no more entitled to half of the ball’s value than a pickpocket is entitled to half the cash in a wallet he thieves. 

 

Put differently, I was surprised that not a single member of the public interviewed in the film said what appears to be the most intellectually honest thing about the case:  “I don’t know all the facts, so I have no idea who should get what.”  (In fairness, perhaps there were such interviews that did not make it into the final version of the film.  I can imagine such interviews wouldn’t make very interesting cinema.)

 

This isn’t to say that public opinion about legal issues is not meaningful; it’s just that  public (or any) opinion about legal issues can’t be meaningful in the absence of a reasonable understanding of the relevant facts.  Hence I’m always baffled at polls that ask the public “Do you agree with the Supreme Court’s decision in [some case]?” when the overwhelming likelihood is that the person being asked hasn’t read the case at all.

 

The public’s distaste for Popov and Hayashi’s choice to litigate the ball’s ownership may also express a distaste for litigation generally.  It reminds me a bit of a theme emergent in one of my favorite law books, Order Without Law, when Ellickson shows that Shasta County ranchers regard resorting to lawyers and formal law as something distasteful on its own terms.  The idea, I think, is that many people think resorting to litigation is a sign of weakness because it means you have to hire someone else to do your dirty work.  The folks interviewed in Up for Grabs think Popov and Hayashi should meet and work their problems out in person, just like ranchers way up in “superior” California. 

 

And aside from the great legal themes, Up for Grabs features a full-frontal view of a distinctive feature of the modern American psyche:  the lust for fame by any means necessary.  Both of the principals seek to translate the sheer luck of being near the Bonds HR ball into not only fortune but also into Warholian fame.  Popov especially seems to be especially high on his newfound celebrity, at one point trying to impress girls in a bar by introducing himself as “the guy who caught the Bonds home run ball” (to their credit, the girls feign enthusiasm in order to mock Popov).

 

Highly recommended, for property profs, baseball fans, and just about anyone.

Documentary Galore!

Hello, Everyone,

It's good to be back for a month-long blogging stint. As some of us are spending more time indoors in this cold weather, I thought I'd start off by recommending some terrific law-related documentaries I've seen lately. Most, but not all, are criminal-justice-related.

A Hard Straight: Goro Toshima's 2005 film documents, with a perfect combination of unflinching honesty and humanist empathy, the rehabilitation efforts of three inmates recently released from California prisons. Regina struggles to stay clean and reconcile with her daughter; Aaron is back in the Tenderloin neighborhood of San Francisco, wandering the streets and trying to stay away from yet another parole violation; and Smiley, about to become a first-time dad, struggles with his parole officer's requirement to stay away from his gang associates--the only family he has and his source of income as a tattoo artist. 

Writ Writer: Susanne Mason's 2008 film tells the amazing story of Fred Cruz, a Texas prison inmate during the 1960s and 1970s and the spirit behind Ruiz v. Estelle, the case that brought the Texan correctional monster to its knees. Offering some unbelievable and shocking footage from Texas correctional institutions, more than vaguely reminiscent of antebellum plantations, the film uses interviews with inmates and guards, as well as Cruz's diary and letters, to show how inmates ingeniously and relentlessly fought from within bars to have basic constitutional rights.

Crude: Joe Berlinger, the man behind incredible documentaries such as Brother's Keeper and Paradise Lost, brings us this 2009 examination of the ongoing legal proceedings against Chevron-Texaco in Ecuador for environmental damage. The film includes interviews with both plaintiffs and defendants, and introduces us, in a gentle and humane way, to the plight of the Secoya and Cofan people, whose habitat, livelihood, and health, it is argued, has been severely destroyed by irresponsible, greedy drilling. We meet the American and Ecuadorian lawyers (perceptive viewers will enjoy the cultural differences between their styles of lawyering and approaches toward schedules, politics, and maneuvering the system) and are exposed to some of the techniques involved in litigating a case against corporate giants--such as drawing celebrities and publicity to one's case.

Shakespeare Behind Bars: A production of Shakespeare's The Tempest within a prison is in the center of this touching 2003 film from Hank Rogerson. We are introduced to the troupe, their lives in prison, their relationships with each other and with the director, and their rehearsals. The film's great strength is in tying the play's plot to the cast's individual journeys of atonement and redemption; it does not flinch from revealing the painful realities of crimes committed by sympathetic members of the troupe. 

The Black Rock: This 2009 film was made by Kevin Epps, who also brought us Straight Outta Hunter's Point, and whose films often examine stratification and struggles across race and class lines. For anyone who's gone on an Alcatraz tour, this film brings back the unique experience of African American inmates, using interviews with former inmates to show the racialized experience of imprisonment in times of overt racism and racial segregation.

A set of fiction recommendations will follow. Enjoy your winter!

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 [email protected].

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.