Archive for the ‘Interviews’ Category
posted by Ronald K.L. Collins
What makes Alex Kozinski tick? That is the question that many have asked ever since the Romanian-born lad, who once considered himself a Communist, tasted the “forbidden luxuries” of bubble gum and bananas while in Vienna. It was at that pinpoint in time that he became “an instant capitalist.” Fast forward four decades or so and Kozinski, now the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, continues to baffle folks on all sides of the ideological divide. “I disagree with the liberals on the bench half of the time,” he chuckles, “and the conservatives the other half” is how he put it in a 2006 Reason magazine interview.
Ever the maverick, always the wit, and unvaryingly brainy, the trimmed jurist (he’s lost weight) is just as comfortable listening to a rough version of “Gloria” by Jim Morrison and the Doors as he is with taking in Beethoven’s Violin Concerto in D (recorded by Jascha Heifetz with the Boston Symphony Orchestra).
Make no mistake: Alex Kozinski is an acquired taste. Like anchovies, his flavor is bold – a true delight to uninhibited types, a true displeasure to staid types. Dating Game pick, Anthony Kennedy law clerk (while on the Ninth Circuit) and thereafter clerk to Warren Burger, assistant White House Counsel to President Reagan, Special Counsel of the Merit Systems Protection Board, chief judge on the Court of Federal Claims, and now circuit judge, he relishes a lively give-and-take during oral arguments and likewise welcomes the thrill of an exhilarating bungie jump. In other words, he likes to mix it up.
So who is this all-American with an accent who enjoys complex judicial work almost as much as a savory corned-beef sandwich at Attman’s Deli in Baltimore? Who is this man who flies his fanciful flag when others shy away into the quiet of the dark? Some answers to such questions can be found in a recent Reason magazine interview with the Chief Judge. Entitled “Judge Alex Kozinski: From Communist Romania to the 9th Circuit Court of Appeals,” the transcribed and video Las Vegas exchange with Matt Welch is quite revealing. At times serious, at times humorous, and at other times surprising, the interview exemplifies the kind of diverse brand of thinking and speaking that is quintessentially Kozinski.
With the kind permission of the folks at Reason, I am happy to share a few snippets of the recent interview with the Judge, who, by the way, is also my good-hearted friend . . . notwithstanding our sometimes different takes on life, law, and rock-n-roll. With that said, here’s Alex:
On tyranny: “[O]ne time I [said] something that sounded somewhat critical of the government, and my father almost lost his job over it. . . . There was a newspaper called Free Romania, and I was seven years old. [People in my father’s office asked:] ‘Do you know how to read?’ And I said, ‘Oh, yes.’ And they said, ‘Can you read [the paper] here?’ And I said, ‘Well, why is it called Free Romania? All those people are in prison.”
On Communism: While Communism may seem good on paper, it is really “a prescription for oppression. It [is] a prescription to give people power over other people that are not subject to lawful control or lawful checks . . . . [I]t inevitably leads to corruption [and] it inevitably leads to oppression.”
posted by Danielle Citron
I could not have timed my chat with Marvin Kalb better. On Sunday, before talking about cyber hate for the U.S. Holocaust Museum’s 20th Anniversary Tour in Chicago, Kalb and I discussed his most recent book, The Road to War: Presidential Commitments Honored and Betrayed (Brookings Institution Press 2013). The timing was auspicious not just because the book had come out days before but because at least 40% of the nation was reeling from learning about the most recent abuse of Executive power: the NSA’s PRISM program and leaked FISA court Verizon order.
Before I recount some of the highlights of our conversation, I wanted to begin with a wonderful and incredibly apt description of Kalb written by a UPI reporter:
[Kalb] is the senior statesman of U.S. media. Tall, handsome, brilliant, unfailingly courteous, Marvin Kalb looks and acts more like a senior statesman than the chief diplomatic correspondent he was for CBS News and NBC over 30 years when these networks cared about world news. Now these media organizations still bill themselves as world news networks but, most nights, forget about the rest of the world.
Following his prize-studded reportorial career, Kalb became the first director of journalism’s school of higher learning at Harvard — the Joan Shorenstein Center on the Press, Politics and Public Policy. Now, still the profession’s senior statesman, he runs the center’s Washington office and hosts “The Kalb Report.” The author of two best-selling novels and a book titled, “One Scandalous Story: Clinton, Lewinsky and 13 days That Transformed American Journalism,” Kalb’s 13th book — his best — excoriates Congress for relinquishing its constitutional obligation to declare war.
The U.S. News and World Report’s Jamie Stiehm describes Kalb’s new book as “an elegant synthesis of how easy, too easy, it has become for an American president, any American president, to go to war” with Congress “ceding its rightful role in declaring war and tends to go along with the man in the White House.” Kalb’s book argues that so much power should not be concentrated in the President.
Here are some highlights from our conversation:
DC: Why has it been so easy for the Executive Branch to ignore the core constitutional guarantee that Congress declare war?
MK: We have a system of law undergirding Presidential authority to go to war — Congressional declaration of War and the power of the purse — yet it has been consistently ceded to the President. When I covered Vietnam in 1968, we had 500,000 troops on the ground. Who gave the President the authority to do so? I am a great believer of law, but if it is ignored with impunity, to whom do we turn?
DC: How did we get to that state of affairs–the President doing what he wants without check? Are things much different in light of recent revelations of our unsanctioned domestic intelligence apparatus?
MK: What we are witnessing this week stands as a confirmation of what we have ben seeing–unchecked Presidential power in the name of war time. In the Korea and Vietnam wars, one President after another made unchecked decisions and no one blew the whistle, most significantly Congress. Congress was successfully pressured to cede its power to the Executive Branch. For instance, only two Senators voted “no” for the Gulf of Tonkin resolution. When one of those senators, Senator Morse, saw President Johnson, the President put his arm around the Senator and said “Wayne, you are a good American. We do not want to hurt the troops.” Johnson wielded his power through persuasion and it worked–Congressional resistance was vanishingly small.
DC: What do you think of this week’s revelations about PRISM and the Verizon order?
MK: In important ways, I thought that we beat Big Brother when we prevailed in the Cold War. With the indiscriminate collection and analysis of all Verizon users’ telephony metadata (including who we called, where we were, and the inevitable revelation of sensitive information given the answer to the “who” question), we have become what we most fear–executive branch conducting surveillance over ordinary citizens in increasingly intrusive ways. Read the rest of this post »
posted by Danielle Citron
My colleague Aaron Zelinsky, who is visiting with University of Maryland School of Law before heading off to the Supreme Court to clerk, has written an incisive post at the Huffington Post on the federal judiciary’s failure to stick to the hiring plan, the troubles defection causes, and his recommendation for what we ought to do about it. The entire post is here. For a bit of his wisdom:
So what’s to be done?
If judges are serious about creating a new plan to fix this race to the bottom, there’s an easy solution: use the old plan. The old plan worked just fine. It only had one problem; it was voluntary, so it unraveled. The solution is simple: make the plan mandatory.
Remember the story of Odysseus, who wanted to hear the song of the Sirens but was worried that doing so would cause him to sail too close to the rocks and wreck his ship? To get around the problem he had his crew tie him to the mast.
The judicial branch tried this solution with the old hiring plan, but they made a critical mistake: Odysseus didn’t tie himself to the mast. He had his crew do it. That way he couldn’t get the knots undone. Otherwise, tying yourself up is about as useful as putting that piece of chocolate cake in the back of the refrigerator. Sure, it helps for about ten minutes, but then you open the door, move the mayonnaise to the side, and there it is.
Instead of voluntary compliance, the judicial branch should ask someone else to tie them to the mast. In the context of our constitutional system, the term of art for this is one you may remember from middle school civics: the separation of powers.
Congress has the power of the purse. It allocates funds for building courthouses, keeping the lights on, and employing staff. For instance, law clerks are employed under 28 U.S.C. 752 (for district courts) and 28 U.S.C. 712 (for circuit courts). If the judiciary really wants to fix the hiring plan, then judges should request that Congress condition salaries for law clerks upon them being hired in compliance with the judicial hiring plan. In other words, if you don’t play by the rules, you don’t have law clerks.
But wait, isn’t that unconstitutional? Nope. The Constitution prevents Congress from lowering the salaries of federal judges, but says nothing about their staff (anyways, such a law could be written to apply only to those hired in the future, not those already employed). And Congress isn’t infringing on the judicial power in any way – this law does not effect how judges make use of their clerks, just the timing of how they hire them. And it would leave the actual formation of the plan up to the judiciary.
Federal judges could ask Congress to make the hiring plan mandatory via a proposal from a special judicial working group, or even in Chief Justice Roberts’s year end report to Congress. And they should. A new, mandatory plan would be fairer for less-advantaged law students and late-bloomers, more efficient for federal judges, and maybe even better for you.
posted by Derek Bambauer
Lifehacker‘s Adam Dachis has a great article on how users can deal with a world in which they infringe copyright constantly, both deliberately and inadvertently. (Disclaimer alert: I talked with Adam about the piece.) It’s a practical guide to a strict liability regime – no intent / knowledge requirement for direct infringement – that operates not as a coherent body of law, but as a series of reified bargains among stakeholders. And props to Adam for the Downfall reference! I couldn’t get by without the mockery of the iPhone or SOPA that it makes possible…
Cross-posted to Info/Law.
February 27, 2012 at 2:14 pm Posted in: Anonymity, Architecture, Culture, Current Events, Cyberlaw, DRM, Education, Google and Search Engines, Innovation, Intellectual Property, Interviews, Media Law, Movies & Television, Politics, Social Network Websites, Technology, Web 2.0 Print This Post 3 Comments
posted by Daniel Solove
In his new book, The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010), Ronald Collins guides us through the free speech writings of Justice Oliver Wendell Holmes, Jr. Ron is the Harold S. Shefelman scholar at the University of Washington School of Law and a fellow at the Washington, D.C., office of the First Amendment Center.
Ron’s book contains numerous excerpts from Holmes’s great judicial opinions, correspondence, essays, and books. Far from composing the book mainly of excerpts, Ron has provided very extensive commentary and background throughout. Ron is steeped in the history of his subject and has a rich understanding of the law and theory of the First Amendment. There is no better guide to help us understand Holmes’s work and thought as it relates to free speech.
I recently had a chance to talk with Ron about the book.
SOLOVE: What inspired you to write this book?
COLLINS: Long story. It began when I was in law school and read Holmes’s 1919 free speech opinions. And then, not long afterwards, I read Max Lerner’s The Mind and Faith of Justice Holmes (1943), which fascinated me though it was quite dated by that time. This was in the 1970s when I was an impressionable law student. Several years later I met Max – incredible Renaissance man! – and befriended him and then helped him, in 1988-89, with a new and expanded edition of his Holmes book. That combined with my work in the First Amendment made this latest book a natural for me, though I don’t worship Holmes. True, he challenged my mind, and I like that sort of thing even when I disagree with someone.
SOLOVE: During the course of immersing yourself in Holmes’s writings, what is the most surprising thing you learned?
COLLINS: There are so many things; Holmes was such a complex man. Long before I began my book, I knew quite a bit about his First Amendment work, including his pre-1919 Supreme Court opinions. So, not much surprise there. I guess I would say I was quite taken by his Civil War experience and how that had such a remarkable impact on his life, jurisprudence, and view of free speech, too. It was the dye that colored everything in the beaker of his thought.
SOLOVE: Personally, what would you consider to be the five most significant writings by Justice Holmes?
COLLINS: Hard call. But here they are, in no special order:
posted by Brandon Bartels
Sometime before commencement of the Supreme Court’s 2009 term, Mike Sacks, a third-year law student at Georgetown University, had an idea. Taking advantage of his close living proximity to the Court, Mike would attempt to be the first one in line for all of the major oral arguments for the Court’s term. In addition, he would interview people in line about why they were there and their impressions of the Court and the case to be argued. And, most importantly, he would start a blog to report on his experiences. Mike has been engaging in legal journalism from a unique vantage point: from the front lines — or, from the “front of the line” — of the Supreme Court. Mike’s bright idea has resulted in a successful Supreme Court blog, First One @ One First. [Recall Mike’s mission to be the “first one” in line at “One First” Street NE (the Court’s address).] Click HERE for the blog’s mission statement. Mike’s experiences and blogging have been featured in the New York Times (see HERE as well), National Public Radio, the ABA Journal, the Washington Post’s WhoRunsGov/PostPolitics, The Atlantic, Slate, Volokh Conspiracy, Above the Law, and other outlets.
Mike’s blogging has also launched the beginning of what is likely to be a successful career in legal journalism. In fact, Mike wrote the cover story for last week’s issue of the Christian Science Monitor. He has also been blogging at some premier legal blogs. Below, Mike answers some of my questions about his reporting experiences, his impressions of the Court’s term, and his perspective on the Supreme Court in general.
1. Could you talk briefly about how and why you came up with this idea of what might be called “legal journalism from the front lines?”
Because Concurring Opinions is more of an academic blog, I’ll start with F1@1F’s intellectual underpinnings. As the Citizens United rehearing approached last September, I noticed that the Roberts Court’s dockets and decisions from OT06 through OT08 appeared to track the surrounding political climate. Once so boldly conservative on all the hot buttons when operating under the cover of Republican-controlled Legislative and Executive branches, the Roberts Court–now operating alongside Democratic political branches–appeared to have shaped an exceedingly modest OT09 docket so to have enough political capital to spend on Citizens United without irreparably damaging the Court’s institutional legitimacy.
I wanted to test my hypothesis that the Roberts Court was not only sensitive, but also responsive, to its surrounding political climate. Of course, I could have done this by reading transcripts of oral argument and digging through the decisions once released. But I lived four blocks from the Court and had already had a blast camping out for Citizens United / Sotomayor’s first day. When I noticed I had no morning classes for the Spring Term on the Court’s argument days, I really decided to make this an in-the-flesh project.
But I wouldn’t have followed through so thoroughly had I not had vocational motivations as well. I entered law school very interested in constitutional law, politics, and media. After my first year, I interned for Nina Totenberg at NPR. That was the summer of Heller and Boumediene. I so enjoyed that experience that I took a semester off to work at ABC News’s Law & Justice Unit in New York, where I covered the legal aspects of the 2008 Presidential Election and the Wall Street meltdown. Once back at school and on the job market, I thought there was no better way to make myself attractive to both legal and media employers than to build a body of work on the Supreme Court beat.
Nevertheless, just another person writing about the Court out in the ether wouldn’t have been too compelling. But getting out in line at disturbingly early hours and telling the tales of those crazy enough to join me – now that’s something no one had ever done. Indeed, if the Court is responsive to the political climate, and if public opinion on any given case is the “weather” that shapes our broader climate, then I figured those who cared enough to get out in line on bitterly cold mornings well before the sun came up would make a very good representative sample for the people who shape public opinion. By asking these folk, “why are you here?”, I would be committing interesting journalism while also informing my research about the Roberts Court.
2. What unique insights have your experiences over the past term given you about the Supreme Court and the justices?
Chief Justice Roberts is a superb political strategist. He’s steering a right-of-center Court through a left-of-center government and knows which storms his ship can handle and which it cannot. I wrote prospectively about this back in December, Jeff Rosen of The New Republic wrote about it in February, and Adam Liptak of the New York Times wrote about it just the other day.
What we’ve seen this year is the birth of John Roberts’ Court. It will always, to a degree, remain the Anthony Kennedy Court as well, until he leaves the bench or one of the conservatives is replaced by a liberal. But Roberts took control this year in the Court’s decisionmaking that we haven’t yet seen. The next interesting thing to look out for is what issues beyond Miranda, guns, arbitration, and campaign finance the Chief believes are ripe for conservative gains as the Congress and the Presidency remain in Democratic hands.
Read the rest of this post »
VICTIMS’ UNDERSTANDINGS AND MOTIVATIONS IN PROCESSING HUMAN RIGHTS VIOLATIONS CASES IN THE GLOBAL SOUTH
posted by Tamara Relis
The proliferation of international human rights treaties, committees and courts over the last sixty years represents enormous achievement. International human rights laws are now asserted throughout the world by individuals of many cultures and traditions. Yet, at the same time human rights ideas and principles continue to have difficulty in establishing their relevance in the daily lives of those who are geographically and culturally distant from international institutions (Stacy, 2009). In my forthcoming piece in Human Rights Quarterly, I argue that notwithstanding the fact that giving voice to those oppressed is a main function of the international human rights movement (Baxi, 2009), and that the meaning of human rights must be grounded in local culture at grassroots levels, relatively little scholarship bases its analyses on the discourse of those actually involved in human rights violations cases in the Global South. What are victims’ conceptions and expectations of human rights and their agendas and experiences in formal and informal justice systems processing their cases? This knowledge is critical to enable greater understanding of victims’ needs, epistemologies and micro-realities in order to innovatively engage the controversies in international human rights theory and practice and to effect realizable change for the subjects of human rights in the Global South.
I provide some such data in my forthcoming book based on my empirical research in India, detailed in my earlier post. This includes voices of female victims of violence discussing their comprehensions, objectives, and practices in processing their cases (74 interviews with victims, and 24 with their family members). I link victims’ discourse to norm diffusion theory in international relations (Risse et al. 1999) and to vernacularization theory in law and anthropology (Merry, 2006), which engage the issue of permeation of human rights standards to grassroots levels.
In terms of female victims of violence in India where CEDAW was ratified in 1993, I show that notwithstanding State enactments of laws in line with international human rights obligations, and the dissemination of human rights concepts by transnational activists and domestic NGOs who work to make them meaningful within particular societies, the subjectivities of victims of violence in two major cities (Delhi, Bangalore) as illustrated in their discourse on their motivations and aims in approaching formal courts and informal justice mechanisms suggest little if any human rights emancipation. Those with little education had either never heard of human rights or lacked an understanding of their meaning. More educated victims who had a general sense of human rights concepts knew little of specifics. Moreover, both groups generally felt that fundamental human rights ideas, though something positive, were primarily of use on an inspirational level.
June 1, 2010 at 11:27 pm Posted in: Articles and Books, Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Sociology of Law Print This Post No Comments
Paradoxes in Formal Courts versus Informal Justice / Quasi-Legal Processing of Human Rights Cases in India
posted by Tamara Relis
Continuing from my previous post, I will elaborate here on some of the initial arguments from my forthcoming book, INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS based on the empirical research I conducted throughout India, which I described earlier. Some of these issues are discussed in my forthcoming article, International Human Rights and Southern Realities, 112 HUMAN RIGHTS QUARTERLY (2010), HTTP://PAPERS.SSRN.COM/SOL3/PAPERS.CFM?ABSTRACT_ID=1592042 . There, I argue that on the basis that a culturally plural universalism in human rights is an acceptable aim, we are in dire need of a new integrated analytical framework, one that is grounded not only in the understandings and perceptions of Southern actors (i.e. individuals from the Global South), but that simultaneously imbeds their perspectives within the realities of human rights case processing in the legally pluralistic Global South. This involves not only formal courts but also informal justice or quasi-legal non-state mechanisms processing human rights cases.
PARADOXES IN FORMAL COURTS VERSUS INFORMAL JUSTICE / QUASI-LEGAL MECHANISMS IN INDIA - Paradoxically, the data suggest that the bulk of lawyer advocates and judges working in the lower criminal and civil courts, as well as court-linked ‘lok adalats’ (mediations)–who process great numbers of cases involving serious violence against women involving food deprivation as a means of punishment, physical and mental torture, and rape–utilize international human rights principles to a far lesser extent, if at all, in dealing with these cases than do some informal justice / quasi-legal mechanisms processing the very same type cases. In contrast, the non-lawyer mediators/arbitrators in the informal justice mechanisms studied—who were not only not formally legally trained, but many of whom had poor literacy skills—were far more geared towards resolving cases utilizing principles of international human rights law and CEDAW in particular (e.g. equality, autonomy).
May 24, 2010 at 8:49 pm Posted in: Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Law Practice, Sociology of Law, Uncategorized Print This Post No Comments
INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS – Some highlights from a forthcoming book
posted by Tamara Relis
My second book is entitled INTERNATIONAL HUMAN RIGHTS AND VIOLENCE AGAINST WOMEN: THEORY, GLOBAL STANDARDS AND SOUTHERN ACTORS’ PRAXIS (forthcoming). It is based on data I collected over three years in eight states of India and in seven languages while I was a postdoctoral research fellow at Columbia Law School and the LSE (London School of Economics, Dept. of Law, where I continue to be a research fellow). This data was collected with the help of eight teams of about 200 research assistants throughout India. The United Nations Development Program (Delhi), 11 law school Deans, domestic judges, state legal services authorities, local district and high courts, NGO’s and human rights/public interest lawyers throughout India were also involved in the project. The dataset comprises 400 semi-structured depth interviews and questionnaires from victims, accused, lawyers, judges, arbitrators and mediators in 193 cases involving human rights violations of serious violence against women. It also includes case hearing observations in lower formal courts, court-linked mediations known as “lok adalats” and non-state, quasi-legal women’s arbitrations known as “mahila panchayats” and “nari adalats” (British Academy Award PDF/2006-09/64).
Similar to my first book, the South Asian research analyzes legal and lay actors’ understandings, objectives and experiences during case processing. However, the South Asian research builds on and takes in new directions the theories and conceptual arguments I developed in PERCEPTIONS IN LITIGATION AND MEDIATION . In particular, it focuses on local, Southern actors’ perspectives (i.e. individuals from the Global South) on the permeation and perceived relevance of international human rights laws and norms in formal courts and non-state informal justice mechanisms.
Drawing on interdisciplinary scholarship (international relations, law & anthropology, law & development, and victimology literatures), the book questions how the current proliferation of international human rights has shaped case processing systems at grassroots levels. Expanding on my North American findings, Southern legal and lay actors provide local perspectives on non-western models of formal courts and informal justice processes as forms of legal pluralism. I examine how, if at all, international human rights laws and norms (e.g. CEDAW 1979, ICCPR 1976, UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power 1985) have permeated the processing of these cases, comparing how receptive the different spaces of lower courts versus quasi-legal regimes are to claims made from the international sphere. I further examine the theoretical ideas informing these processes (including norm diffusion theory, universalism versus cultural relativism, restorative justice, and feminist critiques of mainstream human rights paradigms) and how these ideas are understood by those on the ground. The research also highlights the interdependence of all human rights and the link between human rights, women’s rights and development, which has been the subject of much debate. Finally, the findings provide a critique on the boundaries created both between formal and informal justice, as well as between ratified international law and the permeation of international human rights norms in case processing at grass roots levels.
Interestingly, depending on arbitrary factors including parties’ geographic and/or socioeconomic positions within India, the same type cases might be heard in either criminal or civil lower courts (magistrates/sessions/district) or in the above-mentioned court-linked or non-state quasi-legal mediations or arbitrations. The dataset additionally comprises “in-chambers mediations”, which are newly exported forms of American justice to India. These are case management tools that include ADR and plea bargaining methods, which have been and are being taught to Indian judges and advocates by a number of Californian judges and US Department of Justice representatives with the aim of deflecting cases from the overburdened Indian courts where trial waits of 10 years or more are not uncommon. This is being done predominantly for US commercial interests. However, these case management tools also affect the processing of violence against women cases.
May 17, 2010 at 8:54 pm Posted in: Articles and Books, Civil Procedure, Civil Rights, Criminal Law, Criminal Procedure, Culture, Empirical Analysis of Law, Feminism and Gender, International & Comparative Law, Interviews, Law and Inequality, Law and Psychology, Law Practice, Sociology of Law Print This Post One Comment
Some data from PERCEPTIONS IN LITIGATION AND MEDIATION: LAWYERS, DEFENDANTS, PLAINTIFFS AND GENDERED PARTIES (Cambridge University Press, New York, 2009)
posted by Tamara Relis
I want to provide some support for the claims made in my previous post, summarizing the main findings of my book Perceptions in Litigation and Mediation. Below are two of the many areas that support the “parallel worlds” theme relating to the different understandings of legal case processing and case resolution as between legal actors and lay litigants.
CHAPTER 2 EXCERPTS ON UNDERSTANDINGS OF WHAT PLAINTIFFS WANT:
Chapter 2 explores and attempts to make sense of an issue fundamental to litigation in general as well as mediation in particular: What do plaintiffs want? Why plaintiffs sue, and their consequent litigation aims should have a marked impact on their objectives and experiences in litigation and litigation-linked mediations. Likewise, attorneys’ objectives, approaches to their cases and conduct throughout litigation and mediation are affected by their basic understandings of what those who commence these suits want; that is, what the cases are about. Little is known about what litigants really want from the civil justice system and what they aim to achieve. Consequently we have little knowledge of whether litigants’ real objectives are met by the realities of civil litigation including litigation–linked processes such as mediation.
PHYSICIAN LAWYERS: IT’S ONLY ABOUT MONEY
Virtually all physician lawyers were of the strong belief that plaintiffs had sued for financial compensation alone. Even the two who mentioned that non-fiscal objectives might also have been involved put much emphasis on claimants’ primary monetary aims.
The following excerpts are typical of defense physician lawyers in answering the global question, ‘WHAT IN YOUR VIEW WERE THE PLAINTIFF’S AIMS IN LITIGATING?’
‘My view is the issue was money, to compensate for the pain associated with the deterioration, and to compensate for lost income associated with the surgery that was necessary. SO IT WAS MONEY ALONE? I believe so.’ Male attorney-50’s-prescription alleged to have destroyed bone tissue, resulting in 40-year-old plaintiff undergoing hip replacement surgery-litigating several months
‘To settle it. Their assumption was that this would never go to trial; that they would get money out of this beforehand. SO, YOU FEEL IT IS SOLELY AN ISSUE OF OBTAINING FINANCIAL COMPENSATION Yes, but I also think that they are of the view that if they obtain financial compensation it will make…them feel better. I think they’re misguided on that.’ Female attorney-30’s-abdomen not left intact after surgery litigating several months
‘I think in virtually all cases it’s directly driven by their desire for compensation…The sole aim, you know, in most of the cases it is to be financially compensated for the wrong. And I would say that’s in 99% of the cases I do, that’s what plaintiffs want.’ male attorney-30’s-child fatality case-litigating 4 years Read the rest of this post »
May 11, 2010 at 12:00 am Posted in: Articles and Books, Civil Procedure, Empirical Analysis of Law, Health Law, Insurance Law, Interviews, Law and Psychology, Law Practice, Sociology of Law, Tort Law Print This Post One Comment
posted by Danielle Citron
Oxford University Press has just published Professor Deborah L. Rhode’s newest book, The Beauty Bias: The Injustice of Appearance in Life and Law. I got my copy from Amazon on Friday and enjoyed every moment reading it over the weekend. The book is illuminating and important: it explores the often unacknowledged, yet pervasive, discrimination against people, particularly women, who don’t conform to mainstream notions of beauty and appearance. Professor Deborah Rhode is the Ernest W. McFarland Professor of Law at Stanford Law School. She is the one of the country’s leading scholars in legal ethics and gender. Professor Rhode is incredibly prolific: she has written over 20 books and countless articles. She is the director of the Stanford Center on the Legal Profession and a columnist for the National Law Journal. Before joining the Stanford Law faculty, she was a law clerk for Supreme Court Justice Thurgood Marshall.
Lucky for CoOp readers, I had a chance to interview Professor Rhode about The Beauty Bias. I reproduce our conversation below:
DC: What prompted you to write this book?
DR: It partly started with shoes. I have always viewed women’s footwear design as a haven for closet misogynists; so much of what they produce is so dysfunctional for its primary purpose—comfortable walking. Yet in many contexts, including my years as Chair of the American Bar Association’s Commission on Women in the Profession, I was struck by how often some of the nation’s most prominent, powerful, and otherwise sensible women were hobbling about in what we described in high school as “killer shoes.” They were stranded in cab lines and late for meetings — held back both literally and figuratively — because of shoes. And inconvenience is the least of the problems. High heels are a major contributor to serious back and foot problems, and four-fifths of women eventually experience such difficulties. A growing percentage are even willing to undergo foot surgery to fit into their designer footwear. I was sufficiently irritated to write an op for the New York Times and it triggered more of a response than probably anything I’ve ever published.
That experience underscored a question I had long puzzled over. Of all the inequities that the contemporary women’s movement has targeted, why have those related to appearance shown among the least improvement? Half of American women report unhappiness with how they look, a figure greater than a quarter century ago. In a country where large percentages of the population can’t afford basic health care, cosmetic surgery is the fastest growing specialty. Our global investment in appearance is over 200 billion, and millions of individuals, particularly women, are paying a huge cost not just in money but in time, physical health, and psychological well-being. Discrimination based on appearance, especially weight, is among the most common forms of bias; it is much more frequent and equally arbitrary as many forms of discrimination that are now unlawful. But except in a few jurisdictions, bias based on appearance is perfectly legal.
DC: How does this fit into your broader scholarship?
DR: As a legal academic with a particular interest in gender equality, I wanted a better understanding of where our preoccupation with appearance comes from, what costs it imposes, and what could we do about it from a policy perspective. I’ve always been interested in the gap between our aspirations and achievements involving social justice in general and women’s rights in particular. Appearance raises those issues and provides a window on questions involving the law’s capacities and constraints in producing social change. Appearance discrimination has also attracted relatively little public or scholarly attention, and part of the problem is that so few individuals realize that we have a serious problem. This project offered the chance to provide the first comprehensive overview of the law in this area, and new research on the experience of the few jurisdictions that explicitly prohibit some form of appearance discrimination. And because I’m always interested in connecting research to practice, I tried to write in a way that will be interesting and accessible to a broad public and policy audience.
DC: Are you hopeful that we might combat this bias?
DR: I’m optimistic about reform but not naive about what stands in the way. The importance of attractiveness is deeply rooted, and the economic stakes in its pursuit are enormous. But the costs of our preoccupation with appearance are also considerable and could be much more fully appreciated. Many individuals realize that it hurts to be beautiful, but few realize how much and how many billions are squandered in worthless or unhealthful cosmetic and weight reduction efforts. And even fewer of us realize how much it hurts not to be beautiful, or to conform to culturally prescribed norms that are much more demanding for women than men, and that compound disadvantages based on race, class and ethnicity. Most Americans have bumped up against some aspect of the problem and might be energized to do something if they came to see this as not just an individual problem but a social injustice and cultural challenge. Read the rest of this post »
posted by Spencer Waller
Here is a sentence I never expected to write. So there I was on Monday in the middle of running the Dublin Marathon when I decided to listen on my Ipod to a C-Span podcast interview with Justice Stevens. I had traveled to Dublin to run the actual Dublin marathon and to co-host Antitrust Marathon IV: Marathon with Authority, a round table discussion co-hosted with the British Institute of International and Comparative Law and the Irish Competition Authority.
Around Mile 11, I was hurting and turned from a combination of Irish rock and random songs to some pod casts. After some short New York Times and NPR pod casts, I remembered that I had downloaded a series of C-Span interviews with the current Justices and Sandra Day O’Connor.
I have a special fondness for Justice Stevens. We are both Chicagoans, Cub Fans, and Northwestern Law grads. More improbably, we even had the same antitrust professor (James Rahl) at Northwestern, albeit about 35 years apart. That plus the fact he was primarily an antitrust litigator before going on the bench was enough to get me to devote the next 30 some minutes, and about 3 miles, to the Stevens interview.
A lot of it was a fluffy discussion of his chambers and personal history. But mixed among the fluff and the questions for non-lawyers (What is certiorari?), there were a handful of interesting tidbits. Justice Stevens talked about the reasons and impact of not participating in the cert pool, the importance of writing his own first drafts, and his interest in having the court hear a few more cases than its current docket. There are no smoking guns or shocking revelations, but Justice Stevens does mention the need for Justices from diverse legal backgrounds, such as veterans and litigators, as an important mix for the Court to have on the bench. Justice Stevens is of course both and as far as I know the only current Justice to actually have made his living as a litigator.
The main thing I came away with was the genuine niceness of the good Justice which was my impression from the only time I ever met him. In 1993, I taught in a summer program in Innsbruck, Austria where Justice Stevens was lecturing. Instead of staying for the three days as promised, he stayed and lectured the entire week and interacted warmly with the students and the rest of the faculty. At one point, a student asked him to sign the packet of course materials which he did after class. Because he did not want to play favorites, he then stayed and patiently signed for more than a hundred students.
In the pod cast interview, Stevens demurred on picking a most important or favorite case. But when asked about a most memorable experience, he didn’t hesitate and proudly mentioned throwing out the first pitch at Wrigley Field before a Cubs game at the age of 85.
With that, I grinned, quickened my pace a bit, and headed up the next of an endless series of hills on my way around Dublin on a surprisingly warm and sunny late October day.
I have not listened to the rest of the interviews. But if anyone else has, please post if there are particularly revealing or interesting moments.
October 28, 2009 at 2:15 pm Tags: Antitrust, baseball, Chicago Cubs, Dublin, John Paul Stevens, marathon, Supreme Court, Wrigley Field Posted in: Antitrust, Interviews, Supreme Court Print This Post 6 Comments
posted by Daniel Solove
We are very pleased to be able to present a transcript of our interview with Ron Moore and David Eick, the creators, producers, and writers of the TV show Battlestar Galactica. Joe Beaudoin, Jr., the project leader of the Battlestar Wiki, transcribed the interview for us. We edited the transcript, but the bulk of the work was done by Joe. The transcript is also posted at the Battlestar Wiki, which has a ton of great information for fans of the show. In editing the transcript, we took the liberty of cleaning up grammatical errors and eliminating “ums” and other distractions in order to make it more readable.
In this interview, we explore the legal, political, economic, and social ideas raised by the show. If you prefer to hear to the interview, click here to listen to the audio files.
Below is the introduction to the interview and the transcript for Part I, which explores the legal system, morality, and torture. I couldn’t fit the entire transcript into one post, so Parts II and III are contained in another post. Part II examines politics and commerce. Part III explores the cylons.
posted by Daniel Solove
This post contains Parts II and III of the transcript of our interview with Ron Moore and David Eick, the creators, producers, and writers of the TV show Battlestar Galactica. Joe Beaudoin, Jr., the project leader of the Battlestar Wiki, transcribed the interview for us. We edited the transcript, but the bulk of the work was done by Joe. The transcript is also posted at the Battlestar Wiki, which has a ton of great information for fans of the show. In editing the transcript, we took the liberty of cleaning up grammatical errors and eliminating “ums” and other distractions in order to make it more readable.
Our interview explores the legal, political, and economic dimensions of the show. Part II (see below) examines politics and commerce. Part III (see below) examines the cylons. Daniel Solove, Dave Hoffman, and Deven Desai pose the questions to Ron Moore and David Eick.
Click here to read Part I of the interview transcript, which examines the legal system, morality, and torture.
posted by Daniel Solove
Part I of our interview explored the role of law in the show, exploring topics such as the legal system, lawyers, trials and tribunals, torture, necessity vs. moral principles, and deference to the military.
Part II of our interview examined the political system and economic issues.
In Part III of our interview (the final part in this series), we discuss the cylons. How do the humans view the cylons? As mere machines? As quasi-human? Are the humans heading toward a recognition of more humane treatment of the cylons? Why did the cylons choose to try to annihilate the humans? How do the cylons govern themselves? What role does the cylons’ religion play in all this? We explore these questions and more, including what political and philosophical books most influenced Ron and David in their creation of the show. We learn why Adama changes his views about Boomer and accepts her as a person. And we try to coax out spoilers for the upcoming season.
posted by Daniel Solove
Dave Hoffman, Deven Desai, and I are pleased to present Part II of our interview with Ron Moore and David Eick, the creators, producers, and writers of the hit television show, Battlestar Galactica.
Part I of our interview explored the role of law in the show, exploring topics such as the legal system, lawyers, trials and tribunals, torture, necessity vs. moral principles, and deference to the military.
In Part II of our interview, Dave Hoffman interviews Ron and David about politics and the economy. How did the political system of the Twelve Colonies work prior to the cylon attack? After the destruction of the colonies, how does the economy work aboard the fleet? Why do people still continue to do their jobs without compensation? How does commerce work? Why do people still use money? Dave examines these fascinating questions and more.
Check back Tuesday morning, when we plan to post Part III of our interview — the final part — which addresses issues involving the cylons.
February 25, 2008 at 12:03 am Posted in: Contract Law & Beyond, Culture, Interviews, Law and Humanities, Law Talk, Movies & Television, Privacy, Privacy (National Security), Science Fiction, Technology Print This Post No Comments
posted by Daniel Solove
We are thrilled to offer readers of Concurring Opinions an interview with Ron Moore and David Eick, creators of the hit television show Battlestar Galactica. Daniel Solove, Deven Desai, and David Hoffman ask the questions. We would like to thank Professor John Ip for suggesting some of the torture questions. Our interview lasts a little over an hour, and we’ll be providing it to you in several parts over the next few days.
Our goal was to explore some of the themes of the show in a deeper manner than many traditional interviews. Ron and David graciously agreed to give us an hour of their time, and we had a fascinating conversation with them.
Our interview is structured in three parts. Part I, available in two files (see the end of this post to download), focuses on the issues of legal systems and morality. It examines the lawyers and trials in the show. It also examines how torture is depicted, as well as how the humans must balance civil liberties and security.
Part II examines politics and commerce. It explores how the cylon attack affected the humans’ political system, and it examines how commerce works in the fleet.
Part III examines issues related to cylons, such as the humans’ treatment of cylons, how robots should be treated by the law, how the cylons govern themselves politically. Additionally, Part III will explore the religious issues involved in the show.
The new Battlestar Galactica, which premiered initially as a miniseries in 2003 on the SciFi Network, is only loosely based on the earlier show by the same name during 1978 and 1980. The new Battlestar Galactica is breathtaking science fiction, and it has widespread appeal beyond science fiction fans. Numerous critics have hailed it as one of the best shows on television. Time Magazine, for example, listed it as one of the top television shows and described it as “a ripping sci-fi allegory of the war on terror, complete with religious fundamentalists (here, genocidal robots called Cylons), sleeper cells, civil-liberties crackdowns and even a prisoner-torture scandal.”
The show chronicles the struggle for survival of a small band of humans who escaped a devastating genocidal attack by intelligent robots called cylons. The humans created the cylons for use as slaves. The cylons rebelled and a war erupted between the humans and cylons. But a truce was reached, and the cylons disappeared. But forty years later, the cylons launched a massive surprise attack, destroying the human society (called the Twelve Colonies) with nuclear missiles. Only a small group of humans aboard spaceships survived.
The show depicts the humans’ difficult fight for survival and the tough choices they must make along the way. The cylons have developed technology to allow them to take human form, and some of the humans within the group of survivors are really cylons. More information about the show is here.
The show is heavily influenced by modern events, especially terrorism, war, and torture. In a time of emergency, how should we balance security and liberty? How do we deal with enemies who may be burrowed in among us? How does a society decimated in a war reconstitute its political, economic, and legal systems?
Battlestar Galactica was honored with a prestigious Peabody Award and twice as an official selection of the American Film Institute top television programs for 2005 and 2006.
Because the show explores so many interesting issues so deftly, it has attracted a large group of fans in the legal academy. We know of many law professors who count Battlestar Galactica as one of their favorite shows, and this is why we thought it would be fascinating to speak with the creators and writers of the show — Ron Moore and David Eick.
February 21, 2008 at 9:19 am Posted in: Criminal Procedure, Culture, Interviews, Law and Humanities, Law Talk, Movies & Television, Privacy, Privacy (Law Enforcement), Privacy (National Security), Science Fiction, Technology Print This Post 37 Comments