Many of our readers might be interested in Post’s take on legal scholarship.

In the 1992 article Legal Scholarship and the Practice of Law (63 U. Colo. L. Rev. 616), Post discussed the “emergence within the past fifteen [...]]]> Yale announced today that Robert Post will succeed Harold Koh as Dean of its Law School. I am thrilled to hear the news. I read Post’s book Constitutional Domains: Democracy, Management, Community while I was in college, and it helped convince me to go to law school. During my recent visit at Yale, Post struck me as one of the most intellectually interesting and friendly faculty members. Virtually every student I talked to who worked with him described him as an outstanding mentor.

Many of our readers might be interested in Post’s take on legal scholarship.

In the 1992 article Legal Scholarship and the Practice of Law (63 U. Colo. L. Rev. 616), Post discussed the “emergence within the past fifteen years of ['external scholarship,'] a form of legal scholarship that is self-consciously external to the practice of law and that takes its bearings instead from traditional academic pursuits.” Such “external scholarship” resulted in new hiring practices at many law schools, which had a tendency to “hire entry-level professors with no experience in the actual practice of law, but with advanced degrees in nonlegal areas of scholarship.” Post was concerned that “Law schools have no historically established standards to measure achievement in the area of external scholarship.”

Post was responding to a number of movements in the legal academy. He worried that law professors “veer unstably between celebrating the rule of law and deconstructing it in the most advanced postmodern fashion:”

We are ripped apart by divergent currents of Critical Legal Studies, Hermeneutic Theory, clinical education, Doctrinalism, Law and Economics, Feminism, Critical Race Theory, Positivism, Law and Literature, or, most recently, anti-normativism. We are in danger of dissipating our coherence as a professional discipline.

Is there any way to bring unity to the profession? Post adumbrates a way forward in his response to Robert Weisberg’s essay in the same volume of the Colorado Law Review:


[Weisberg's] search lies in the grand tradition of progressive legal scholarship, which throughout most of this century has attempted to meet Brandeis’s 1916 challenge to assemble the “necessary knowledge of economic and social science” for the law “to meet contemporary economic and social demands.” Weisberg’s quest ultimately leads him to conclude that “the hope for . . . criminal law scholarship” must lie in “some combination of ethnography and social theory that is willing to see criminal law as well as crime as observable social data.”

[But b]ecause Weisberg is uncertain what he wants to achieve through criminal law, his writing lacks conviction about how to clarify or improve it. He remains stuck attempting to locate first principles, a scholarly position increasingly familiar to those who follow closely the contents of contemporary legal publications.

Post suggests that the legal academic enterprise requires a “firm sense of the internal purposes and function of the practice of law.” Without it, legal scholars may end up detached from the practice of law.

Along with Balkin and Levinson’s essay on Law and the Humanities, and Balkin’s work on Critical Legal Theory Today, Post’s work provides a very good opportunity for law professors to reflect on the balance between theory and practice, and advocacy and detachment. I am broadly sympathetic with Post’s position on the need for a distinctively legal take on society’s problems. Though the rise of the administrative state has necessitated a great deal of data gathering and external scholarship capable of making sense of it, the ultimate synthesis of various social scientific perspectives into judgment on particular cases and rules is a paradigmatically legal one. We can’t subcontract it out to economists or the “policy sciences,” lest we become “lost lawyers” (in the words of another dean of Yale Law).

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is [...]]]> There has been a lot of discussion on what President Obama meant when he said he wanted to choose a person who would judge with “empathy” for the U.S. Supreme Court.   When articulating his decision to vote against Chief Justice John Roberts, Obama noted that 95 percent of cases would be relatively straightforward where most justices would agree, but “what matters on the Supreme Court is those 5 precent of cases that are truly difficult.”  Obama further explained:

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.

Over at the Volokh Conspiracy, Orin Kerr has a very thought-provoking post examining what Obama means by “empathy.”  He writes:

What makes the issue interesting, I think, is that the broad divide over the role of ambiguity in legal decisionmaking is quite real, and yet not often explicitly drawn out. But to those who take the first approach to legal ambiguity, Obama’s view of empathy is just asking for a judge who is lawless. From that perspective, Obama wants a judge who will ignore the law: He wants a judge who might look at the precedents and text, weigh the merits as 70/30, and then vote for the weaker “30″ side only because that furthers his political agenda. To those who see legal ambiguity as inviting a careful judicial weighing — indeed, who think that the critical role of a judge is to engage in that careful judicial weighing — emphasizing the need for “empathy” is an invitation to replace law with politics.

Orin’s post reminds me of the debate between H.L.A. Hart and Ronald Dworkin.

In The Concept of Law, H.L.A. Hart famously observed:

Whichever device, precedent or legislation, is chosen for the communication of standards of behaviour, these, however smoothly they work over the great mass of ordinary cases, will, at some point where their application is in question, prove indeterminate; they will have what has been termed an open texture.

In these cases, Hart posited that judges have discretion to decide the case either way.  The law simply has nothing to say.  Ronald Dworkin took issue with Hart’s claim that “hard cases” could not be decided by law.  In Taking Rights Seriously, Dworkin argued that “even when no settled rule disposes of the case, one party may nevertheless have a right to win.”  He contended that principles may “incline a decision one way, though not conclusively” and that “in most hard cases there are right answers to be hunted by reason and imagination.”

For a legal positivist following Hart, the 5 percent of cases (the “hard cases”) Obama is talking about have no legal answer.  Obama wants a justice who will decide them in a way he desires.  As Orin posits:

A substantial number of the close cases that reach the Supreme Court involve some sort of power dynamic — employer versus employee, plaintiff versus big company — and Obama wants the judge who will pick the side of the powerless.

For Hart, this is fine — in hard cases, judges are outside the law, so they can’t decide the case based on law.  For Dworkin, the hard cases would require that justices look to principles, and they would not be free to side with their political ideology.   Their empathy might make them inclined to find or interpret principles that favor the powerless, but cases would not be decided by pure ideology.  Orin’s post seems to be viewing Obama’s jurisprudence as legal positivism in the tradition of Hart.

There’s something missing from the Hart-Dworkin debate, which Orin alludes to in his post.  How readily will a justice recognize ambiguity?  Orin raises the concern that the empathetic judge will too readily find cases to be hard.  So instead of finding 5 percent of cases to be hard, an empathetic justice might find a greater precentage to be hard.

In an article I wrote long ago as a law student, I argued that Hart and Dworkin failed to adequately theorize how judges perceive whether a case is hard.  In order to apply rules and precedents, judges must determine whether a case fits, whether it is similar enough to other instances in which the case or the rule applies.  But no two cases are exactly alike.  I wrote:

The level of generality with which a judge perceives the facts of a case has a profound impact on how she interprets these facts. Interpreting the facts involves sifting out the trivial ones and locating the nuggets‑‑those facts which are critical to the decision that must be made. This interpretation is vital to how judges categorize cases, in how judges determine whether a case fits under an general proposition.

We perceive events and situations at varying levels of generality. At a high level of generality, we do not notice subtle differences, but at a more individuated level, we can observe the unique intricacies of each case. For example, we will not notice the differences between two snowflakes unless we examine them closely. As proximity increases, a judge will often become more aware of the imprecision of general legal propositions. For example, in Lorenzo v. Wirth, Judge Holmes, then a state court judge, held that a defendant should not be liable when a plaintiff fell into an open coal hole on the defendant’s property. Holmes declared: “A heap of coal on a sidewalk in Boston is an indication according to common experience that there very possibly may be a coal hole to receive it.” After reading Holmes’ opinion, this appears to be a rather easy case. However, Judge Knowlton, dissenting, supplies a critical fact that Holmes left out: the plaintiff had just come from Spain and had never seen coal put into a cellar through a coal hole. The introduction of more facts makes the case more unique, and thus more difficult to fit into general categories. Indeed almost any case, when viewed at a great distance, when depicted in the most general of terms, will present no difficulties for general legal propositions. As Judge Richard Posner wrote: “The more facts that are stated in an opinion, the easier it is for judges in subsequent cases to distinguish, narrow, confine, and otherwise diminish the scope and impact of the opinion.”

Perhaps the more empathetic judge is one who views cases at a closer level  than the non-empathetic judge.  The non-empathetic judge sees things at a  great level of generality.  The empathetic judge is more inclined to focus on the facts that make cases different and unique.  Empathetic judges are more inclined to put themselves in the litigants’ shoes rather than view the case abstractly and distantly.  Such proximity may incline a judge toward more compassion for litigants, but it need not necessarily do so.  Indeed, empathy in this sense need not be confined to liberal judges.  Justice O’Connor was one who was very inclined to focus on the facts and see cases as different.

Empathy is just one of the components Obama mentioned he was looking for in a justice.  As I’ve discussed in this post, empathy could have two meanings: (1) it could mean judges who decide the 5 percent of hard cases for the powerless.; or (2)  it could mean judges who find more cases to be hard than 5 percent.   The empathetic judge might exhibit a combination of (1) and (2) above or not.  They are different issues after all.

Ironically, empathy in the first sense would not be replacing law with politics as some critics may charge at least not from Hart’s perspective.  In hard cases, the law is silent.

In the second sense, is empathy more akin to lawlessness?  True, in a Hartian perspective, the judge who finds more cases to be hard will find more cases to be beyond the law.  But if those cases are indeed hard cases, then such a judge isn’t being lawless.  In fact, such a judge is being faithful to the law by not twisting it to fit cases it doesn’t fit.

Sadly, the issue gets perverted by the common critique that judges are being lawless or activist.  The issue is much more complicated, and it involves questions in jurisprudence that haven’t been adequately worked out.

Here’s the abstract of my review:

A short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy” (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the “Victorian Compromise,” a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. “Dark Secrets” undeniably advances our understanding of both the genesis of [...]]]> I recently uploaded to SSRN a short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety and Privacy (Stanford 2007).  No book is perfect, but this one is probably the best book on the history of privacy law that I have read.

Here’s the abstract of my review:

A short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy” (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the “Victorian Compromise,” a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. “Dark Secrets” undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic – a must-read for anyone interested in privacy law. But although Dark Secrets is first-rate legal history, it is less successful in its latter chapters when Friedman shifts his focus from the past to the present. The limits of Friedman’s social criticism raise important questions about the ability of history alone to provide answers to social problems in our modern, networked information society.

Believe me, no. I thank my fortune for it

My ventures are not in one bottom trusted,

Nor to one place; nor is my whole estate

Upon the fortune of this present year.

Therefore my merchandise makes me not sad. (I.i.41-45)

Having ignored the problem of fat tails and black swans, Antonio decides to engage in [...]]]> Over the weekend, I re-read A Merchant of Venice, and I was struck by the fact that Shakespeare manages to include in the play virtually every element of the current financial crisis. Scene one begins with a discussion of risk assessment, and Antonio’s belief that he has managed to tame the vagaries of commercial fate through diversification. Asked by Salarino if he “Is sad to think upon his merchandise” (I.i.40), Antonio responds:

Believe me, no. I thank my fortune for it

My ventures are not in one bottom trusted,

Nor to one place; nor is my whole estate

Upon the fortune of this present year.

Therefore my merchandise makes me not sad. (I.i.41-45)

Having ignored the problem of fat tails and black swans, Antonio decides to engage in a bit of dodgy finance. He borrows in the wholesale market from Shylock under terms that appear favorable, but have a huge downside in the unlikely event of his default. Antonio, of course, is unconcerned. From his point of view he is getting cheap money by taking on what seems like an extremely remote risk. He then takes these borrowed funds and uses them to make what can only be described as a no doc, subprime loan. Bassiano wants money for a speculative venture — the wooing “In Belmont [of] a lady richly left” (I.i.161) — and Antonio agrees, in effect renting out his credit rating:

Try what my credit in Venice can do;

That shall be racked even to the uttermost

To furnish thee to Belmont to fair Portia.

Go presently inquire, and so will I,

Where money is; and I no question make

To have it of my trust or for my sake. (I.i.180-185)

Shylock, for his part, does not approve of the loose monetary policy in Venice, which he rightly blames on wild lending practices, such as Antonio’s loans:

How like a fawning publican he looks.

I hate him for he is a Christian;

But more, for what is low simplicity,

He lends out money gratis and brings down

The rate of usance here with us in Venice. (I.iii.38-42)

Faced with such low returns on normal loans, Shylock is forced into the shadowy world of loan-to-own, in this case targeting, as he tells Antonio, “…an equal pound/ Of your fair flesh, to be cut off and taken/ In what part of your body pleaseth me” (I.iii.147-149). As he later reveals, Shylock is engaged in a bit of arbitrage in the commodity markets and wants Antonio’s flesh “To bait fish withal” (III.i.49).

When all Antonio’s “argossies” reportedly wreck at the same time — a wildly improbable event predicted by none of Antonio’s complex statistical models and, as we have seen, completely discounted by him — his over-leveraged balance sheet sends him spinning into bankruptcy and ruin. For his part, after Lorenzo makes off Madoff-like with Shylock’s daughter and his savings — “A diamond gone cost me two thousand ducats in Frankfurt!” (III.i.77-78) — he is left to lament (albeit in prose):

Why thou loss upon loss! The thief gone

with so much, and so much to find the thief, and no

satisfaction, no revenge, nor no ill luck stirring but

what lights o’ my shoulders, no sighs but o’ my breath-

ing, no tears but ‘o my shedding. (III.i.85-89)

Of course, once his ill-fated bet on Bassiano and the power of risk management starts to unwind, Antonio’s surrogates begin lobbying the government to change the rules so as to avoid unwanted contracts. To his credit, the Duke resists these entreaties, because, as Antonio acknowledges:

The duke cannot deny the course of law;

For the commodity that strangers have

With us in Venice, if it be denied,

Will much impeach the justice of the state,

Since that the trade and profit of the city

Consisteth of all nations. . . . (III.iii.26-31)

His laudable concern for the commercial reputation of Venice, however, does not prevent the Duke from using the bully pulpit in an attempt to brow-beat Shylock into renegotiating his contract with Antonio:

Shylock, the world thinks, and I think so too,

That thou but leadest this fashion of they malice

To the last hour of act; and then ’tis thought

Thou’lt show thy mercy and remorse more strange

That is they strange apparent cruelty’

And where thou now exacts the penalty,

Which is a pound of this poor merchant’s flesh,

Thou wilt not only loose the forfeiture,

But touched with human gentleness and love,

Forgive a moiety of the principal,

Glancing an eye of pity on his losses,

That have of late so huddled on his back,

Enow to press a royal merchant down

And pluck commiseration of his state

From brassy bosoms and rough hearts of flint,

From stubborn Turks and Tartars never trained

To offices of tender courtesy.

We all expect a gentle answer, Jew. (IV.i.16-34)

The Duke’s speech, of course, falls into the standard rhetorical tropes from the perennial battle between Main Street and Wall Street, finance and the “real economy.” Shylock is asked to forgive the principal out of “human gentleness and love” and Antonio’s unfortunate losses “huddled on his back,” nevermind, of course, that it was Antonio who got himself into the problem with the first place through irrational exuberance and shoddy lending practices. Of course, beneath the velvet appeal to mercy and solidarity there is the steel fist of an unstated threat. Shylock is “Jew,” the member of a hated minority and the memory of young men following him through the streets taunting him over the loss of his daughter just a few scenes before must be fresh in his memory. The duke is willing to stand behind the “justice of the state,” but for how long in the face of an increasingly belligerent public that his sided decisively with Antonio?

Of course, the story is resolved when deus ex machina Portia arrives with clever legal arguments that allow Antonio to escape his obligations while giving the city a fig leaf behind which it can hide its ultimately thin commitment to contractual sanctity. (Of course, realist that I am, in the end I think that that it is Portia’s rhetoric — “The quality of mercy is not strained…” (IV.i.182) — rather than her legal analysis that does the real work.) The ending, however, requires the forced conversion of Shylock and what amounts to public control of his capital through a series of strong-arm negotiations rather than outright legislation.

Needless to say, finance and capitalism will never be the same in Venice again. With Antonio and his friends in control, I shudder for the prospects of efficient capital allocation in the future. I think that we can expect more loans to well-connected folks like Bassanio with questionable business models.

This provocative book presents a theory of the First Amendment’s development. During the twentieth century, Americans gained trust in its commitments, turned the First Amendment into an instrument for social progress, and exercised their rhetorical freedom to create a common language of rights. Robert L. Tsai explains that the guarantees of the First Amendment have become part of a governing culture and nationwide priority. Examining the rhetorical tactics of activists, presidents, and lawyers, he illustrates how committed citizens seek to promote or destabilize a [...]]]> Professor Robert Tsai (American University, Washington College of Law), who previously guest blogged here in January 2006, has just published Eloquence and Reason: Creating a First Amendment Culture (Yale University Press, Nov. 2008). According to the back cover blurb:

This provocative book presents a theory of the First Amendment’s development. During the twentieth century, Americans gained trust in its commitments, turned the First Amendment into an instrument for social progress, and exercised their rhetorical freedom to create a common language of rights. Robert L. Tsai explains that the guarantees of the First Amendment have become part of a governing culture and nationwide priority. Examining the rhetorical tactics of activists, presidents, and lawyers, he illustrates how committed citizens seek to promote or destabilize a convergence in constitutional ideas. Eloquence and Reason reveals the social and institutional processes through which foundational ideas are generated and defends a cultural role for the courts.

I’ve read a few chapters of this book earlier on, and I highly recommend it. Robert Tsai’s work is always interesting and thought-provoking. He writes beautifully, and he demonstrates with great insight how rhetoric influences constitutional law.

From a blurb on the back cover by Professor Mark Tushnet (Harvard Law School): “A provocative meditation on the ways the metaphors used in constitutional doctrine empower, limit, create, and recreate the public over which the written Constitution is said to assert authority. Intriguing case studies arise from the civil rights movement of the 1960s, the Christian Right of the 1980s, and the attacks on Jehovah’s Witnesses in the 1940s.”

This is an intriguing, and mischevious, combination–users expose media bias (or its gullibility to spin doctors) while spin doctors append ads to win back or capture those cynical eyeballs. Given the site’s construction around key phrases, bias [...]]]> According to Business Week, this month marks the birth of Spinspotter, a website that lets users identify and discuss phrases in news stories that smack of bias. The website owner, a former Microsoft executive, will generate income by selling advertisements connected to the bias-infected new stories identified by users. For instance, Toyota might want to hang Prius ads around the phrase “gas guzzler.” Or Microsoft and Apple might want to buy ad space next to a news article that deems Windows Vista a “bug-filled failure.”

This is an intriguing, and mischevious, combination–users expose media bias (or its gullibility to spin doctors) while spin doctors append ads to win back or capture those cynical eyeballs. Given the site’s construction around key phrases, bias accomplished through silence may be missed. So often, media outlets emphasize the positive in politicians and industry such that the lack of criticism reveals a bias worthy of the SpinSpot treatment. But if crowds are indeed wise, they may find a way to highlight those bias-filled silences.

Not anticipating that McCain would choose a woman as his running mate, the speech that was prepared in advance was “very masculine,” according to campaign manager Rick Davis, and “we had to start from scratch.”

It is common in today’s political landscape for speech writers to pen most of the words in a politician’s speeches — both for Republicans and Democrats. What always irks me is all the commentary about the speeches. The commentators — on all sides of the political spectrum — are saying how much Palin’s speech reveals about her. [...]]]> Much has been made of the fact that large parts of Sarah Palin’s speech were already pre-written before she was even chosen as the VP candidate. According to the Washington Post:

Not anticipating that McCain would choose a woman as his running mate, the speech that was prepared in advance was “very masculine,” according to campaign manager Rick Davis, and “we had to start from scratch.”

It is common in today’s political landscape for speech writers to pen most of the words in a politician’s speeches — both for Republicans and Democrats. What always irks me is all the commentary about the speeches. The commentators — on all sides of the political spectrum — are saying how much Palin’s speech reveals about her. But are we really learning much about Palin from the speech if she didn’t write a large chunk of it?

If the words are written by others, what exactly does a speech tell us? Why do we pretend as though the words are really coming from the particular politician? If the skill is the ability to read convincingly from the teleprompter, or to deliver the lines with gusto and confidence, then isn’t this more suited for an actor or actress?

One thing that always irks me is when quotes from movies are attributed to particular actors, as if Robert DeNiro or Julia Roberts originated a particular line in the same way that Shakespeare or Einstein created their own words. We all know that actors and actresses are just vessels for delivering the words of others. We wouldn’t attribute quotes to the person who read a particular line for an audio book on CD. Why do we do so when an actor or actress delivers a line in a movie? Or when a singer sings a song written by another?

Suppose we found out that Lincoln had a speech writer write the Gettysburg Address. Would our opinion of him change if we learned that his eloquent words were not really his own, and that he merely delivered the lines in a particularly compelling way?

Should Brod have carried out Kafka’s wishes? Lior argues yes:

I have written, and continue to believe, that Brod should have destroyed Kafka’s unpublished works, [...]]]> Professor Lior Strahilevitz (U. Chicago Law School) has an interesting post about Franz Kafka’s papers. The famous story about Kafka’s papers is that Kafka asked his friend, Max Brod, to burn them after his death. Although Kafka had published a few works during his lifetime, a great many stories, parables, letters, and diary entries were unpublished, as were Kafka’s two great book masterpieces, The Trial and The Castle. Brod refused to burn them. Instead, he published them, and Kafka would go on to achieve enormous posthumous fame as one of the greatest writers of the twentieth century.

Should Brod have carried out Kafka’s wishes? Lior argues yes:

I have written, and continue to believe, that Brod should have destroyed Kafka’s unpublished works, as per Kafka’s instructions, notwithstanding the immense literary value of the work. Kafka had legitimate privacy and artistic integrity interests in the works that should have been respected, and as their creator he was in the best position to decide upon their fate.

Controversies over the Kafka papers have recently reemerged. The New York Times describes a new issue over Kafka’s papers:

When Mr. Brod fled to Tel Aviv from Prague on the last train out in 1939 as the Nazis rolled in, he had with him a suitcase full of Kafka’s documents.

Here, he took up with his secretary, and when he died in 1968, he bequeathed to her the remaining Kafka papers, as well as his own from a rich cultural career. For nearly 40 years, the secretary, Esther Hoffe, held the world of Kafka scholarship on tenterhooks, keeping the documents in her ground-floor apartment on Spinoza Street, some of them piled high on her desk (it was originally Mr. Brod’s), where she typed all day and took her meals.

The last time a scholar was permitted into the apartment was in the 1980s. Later, Ms. Hoffe sold the manuscript for “The Trial” for $2 million. No one knows what remains.

Since her death last year at age 101, her 74-year-old daughter, Hava, has indicated that a decision about the coveted papers will be made in the coming months. While most of the Kafka estate is already in archives in the Czech Republic, Britain and Germany, some may still be inside the scuffed front door of the Hoffe apartment.

Lior’s article, The Right to Destroy, 114 Yale L.J. 781 (2005) (SSRN version here, final published version here) argues:

I submit that the K papers and manuscripts should be destroyed, on the basis of any of four rationales. . . .

First . . . A society that does not allow authors to have their draft works destroyed posthumously could have less literary product than a society that requires the preservation of all literary works not destroyed during the author’s life. Protecting authors’ rights to destroy should encourage high-risk, high-reward projects, and might prevent writers from worrying that they should not commit words to paper unless they have complete visions of the narrative structures for their work. . . .

Second, we might accept an economic rationale. . . . K has an economic interest (via his concern for the welfare of his beneficiaries) in assuring that the value of his published works is not diminished by the conceivably inferior quality of the unpublished works.

Third and relatedly, . . . By destroying his unfinished works, K may wish to send a message to the public that he is not the type of artist who will tolerate, let alone publish, inferior works. . . .

Finally, . . . . If a court decides to bar Brod from destroying K’s unpublished works, it is forcing the departed K to speak when he would have preferred to remain silent.

I don’t want to take on Lior’s arguments in this post, as I find myself greatly torn over the issue. Respecting the privacy and final wishes of the author is a very important value, but there is also enormous social benefit from society’s having an author’s papers. Imagine if Kafka’s wishes had been granted. Nobody would know of The Trial or The Castle, two of the greatest works of literature ever penned. Maybe there should be a special exception for Kafka since his works are so great. . . .

But there’s another interesting issue in Kafka’s request to Brod. Lior explicitly states that he is assuming, for the sake of his analysis, that Kafka’s instructions to Brod were “unambiguous.” But Kafka’s instructions were, in fact, not so clear. In a recent book, Why You Should Read Kafka Before You Waste Your Life (2008), James Hawes attempts to deflate many myths about Kafka. Kafka wrote two “wills” to Brod. In his writing desk, Kafka left the following instruction:

Dearest Max, my last wish: Everything that I leave behind in the way of diaries, manuscripts, letters of my own and from others, drawing, etc. (whether in my bookcase, clothes cupboard, writing desk at home or at the office, or in any other place anything may have gotten and you find it) should be burned, completely and unread, as should everything written or drawn in your possession or in the possession of others whom you should ask, in my name, to do likewise. People who do not want to hand over letters to you should at least be made to promise that they themselves will burn them. Yours, Franz Kafka.

Kafka wrote Max another letter shortly before his death, listing his published works and saying that “only the following books count” but that :everything that exists in the way of my writings (publications in journals, manuscripts and letters) is without exception inasmuch as it’s possible to get hold of it . . . . all this, without exception, is to be burned and you are asked to do this as quickly as possible by me, Franz.”

Hawkes contends, and I agree, that Kafka “didn’t mean a word of it.” Hawes writes:

Kafka was a lawyer. He knew very well what a binding legal document looked like and that neither of these supposed wills was remotely a real one. Brod claims that he’d even told Kafka flat out, at the time of his first will, that he wouldn’t carry out the instructions.

Brod was Kafka’s best friend and greatest fan. Brod had helped to establish Kafka’s reputation as an author, and it was ironic to ask him to destroy the works. Kafka had shown Brod The Trial and back in 1919, Brod even joked with Kafka that Brod would finish it when Kafka’s publisher was demanding novels instead of stories from Kafka.

Kafka was a master of irony. His request to Brod, understood in the context of his work, diaries, and letters (much of which, even more ironically, were subject to his request to burn), is typical Kafka. He was asking the man whom he knew never would burn his papers to do so. He could have asked others to carry out his bidding, but he chose Brod. As in all his works, Kafka raises complex issues of interpretation.

The Hawes book is an interesting read, as it attempts to debunk many myths about Kafka. Among the myths are that Kafka was unknown in his lifetime, that he lived a lonely life, and that he was poor. In fact, Hawes points out that Kafka was well-received in literary circles. Kafka had an active social life. Kafka did have dysfunctional relationships with women, a phenomenon Hawes attributes to Kafka’s deep ambivalence about being married and raising a family (which Kafka was afraid would take away time from his writing). Kafka made a very good living and was successful at his job. Hawes also notes that although many view Kafka’s living at home for most of his adult life demonstrated that he was a failure, this was in fact the norm for young unmarried professionals. People envision Kafka as a tiny gaunt figure, but he was for most of his life in good shape and was quite tall — about 6 feet tall, which was much taller than average at the time.

Hawes does go a bit overboard at times, contending that Kafka’s Jewishness had little influence in his work. In fact, Kafka’s works are suffused with countless tropes, images, and references to Judaism. Kafka wasn’t a particularly religious man, but he was fascinated by Judaism and studied it extensively. Hawes also makes much of Kafka’s porn collection, using it as a way to deflate critics whom Hawes think put Kafka on too much of a pedestal. The porn consisted mainly of illustrations from a journal called The Amethyst, which seems to have been a literary journal that published “edgy fiction” and erotica. The illustrations, some of which Hawes reproduces in his book, are a little weird, but seem much more arty than pornographic. Hawes seems to be a bit too obsessed in attacking his conception of the Kafka critic who views Kafka as an asexual individual, a pure soul devoted solely to abstract ideas. Such critics do exist, but much commentary about Kafka does not view him in this caricatured manner. Nevertheless, despite Hawes’ tendency to overclaim, his book is very entertaining and illuminating about Kafka. Too bad it is marred by Hawes’ rather obnoxious tone, as the one-and-only myth-slayer designed to bring Kafka back to earth.

The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating [...]]]> I always find certain sections of Democracy in America thought-provoking, and thought I’d just share a bit from a part on lawyers today:

The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a twofold authority from it and over it.

The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.

The whole section is a nice introduction to the tensions between the rule of law and democracy. And if you find Tocqueville’s methodology too loose or unscientific, check out Jon Elster, Patterns of causal analysis in Tocqueville’s Democracy in America, 3 Rationality and Society 277 (1990).

And here are a few more nuggets:

Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other} men, are governed by their private interests, and especially by the interests of the moment.

The special information that lawyers derive from their studies ensures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but which is not very generally known; they serve as arbiters between the citizens; and the habit of directing to their purpose the blind passions of parties in litigation inspires them with a certain contempt for the judgment of the multitude.

In dissent, Judge Wood noted a very unwise use of a Shakespearian reference in the Defendants’ brief:

Indeed, especially given the fact that the question in this case is whether a trier of fact could conclude that the defendants were intentionally discriminating against the Blochs, it was shocking to read at the end of their [...]]]> Over at WSJ blog, Dan Slater writes about a Fair Housing Act case involving a condo association that prohibited all objects in hallways. A Jewish resident challenged the rule under the Fair Housing Act because his mezuzah was removed, claiming the rule discriminated against his religion. The 7th Circuit held for the condo association, concluding that the rule was “neutral with respect to religion” since it applied to all objects.

In dissent, Judge Wood noted a very unwise use of a Shakespearian reference in the Defendants’ brief:

Indeed, especially given the fact that the question in this case is whether a trier of fact could conclude that the defendants were intentionally discriminating against the Blochs, it was shocking to read at the end of their supplemental brief that “[t]hroughout this matter, Plaintiffs have been trying to get their ‘pound of flesh’ from Defendants due to personal animosity between Lynne and Frischholz.” Perhaps the defendants have not read Shakespeare’s Merchant of Venice lately and thus failed to recall that the play is about a bitter Jewish moneylender, Shylock, who agreed to loan funds to a man he loathed (Antonio—who spit on him because he was Jewish) only upon a promise that if the loan was not paid in time, Shylock would be entitled to carve a pound of flesh from Antonio. At the end of the play, after the disguised Portia defeats the contract by pointing out that Shylock is not entitled to shed any blood while he takes his pound of flesh, Shylock is punished by losing half of his lands and being forced to convert to Christianity. This is hardly the reference someone should choose who is trying to show that the stand-off about Hallway Rule 1 was not because of the Blochs’ religion, but rather in spite of it.

The Moth comes to the rescue. A friend recently introduced me to The Moth, a storytelling stage and website. Most stories (all true, purportedly) are refreshingly funny, insightful and well-crafted. And [...]]]> I’ve been pressed for time these past several months. I became a mom for a second time, and with the second child, life became more than doubly busy. One of the first things to go in order to make space for the new baby was almost all leisure reading. I haven’t even opened a novel since she was born; I have a stack of my favorite magazines and reviews in strategic places around the house, but most remain unread; and I have an electronic email folder of unread emails with attached articles labeled “to read.”

The Moth comes to the rescue. A friend recently introduced me to The Moth, a storytelling stage and website. Most stories (all true, purportedly) are refreshingly funny, insightful and well-crafted. And most stories are no more than fifteen minutes long. I upload them to my IPOD and listen to them on my commute home. These short stories do not provide the deeply engaging experience one gets from reading a good novel, but they are nonetheless satisfying in a similar fashion. They bring to life other people and events with experiences entirely different from your own that nonetheless refocus your thoughts.

In listening to Malcolm Gladwell’s story about the beginning of his journalistic career and the contest he had with a colleague to insert a certain phrase into the pages of the newspaper as often as possible (a phrase such as “perverse and often baffling”), I had a new appreciation for the role of authorship in journalism. Indeed, on that particular commute home, I thought about authorship and authors a lot. I thought about how my older daughter sits and “writes” (she is only four) and tells me “this is my work.” I thought about the many theoretical and experimental scientists, whose academic norm is to co-author articles, which articles are written by the dozens in a short span of time and are secondary in importance to the data they generate in their experiments. I thought about judicial opinions that are written by law clerks. I thought about the star-footnote at the bottom of law review articles that acknowledge the contribution of colleagues and friends, and then include the disclaimer “any errors are my own.” I thought about how many people have spoken to me about Malcolm Gladwell’s article in the New Yorker about innovation (which I have yet to finish) and how authors, like Malcolm Gladwell, become famous public intellectuals permeating so many different social and academic settings. I thought about how, even in the Internet Age, books (a traditional vehicle for authorship) matter. I thought about how the assertion of authorship is a complex, social act, the meaning of which is elusive and depends on the specific writing context.

And this may be an obvious conclusion to draw – but I had a relatively short commute and didn’t have much more time to think deeply about whether I was being profound or banal. I was nearing the house and I was going to have to put away my IPOD and devote my time to parenting rather than thinking more about how, it seems, writing creates a community rather than the reverse.

As I now sit with a bit more time (albeit right now stealing time away from my research and writing rather than from my family), I wonder how obvious this insight actually is — at least from the standpoint of law. We tend to say that a community (or a person) creates a writing. This is one of the central tenets of copyright law and, if broadened to include invention or innovation, is central to intellectual property law generally. (I have elsewhere called this one of the origin myths of intellectual property.) But, of course, constitutions are constitutive of communities – they birth them anew. And many novelists or essayists will say, “I don’t know what I think or what I want to say until I write it down,” strongly suggesting that written discourse shapes their thoughts (and therefore themselves). How would this insight – that a community’s writing creates the community rather than vice versa (be it the journalism community, the juridical community, etc.) – change our view of intellectual property rights? I’m going to have to think more about this on the next commute home … but then I’m just dying to listen to the next Moth podcast.

One of my summer projects is to think about how to turn some of my more theoretical writing on law and film into a practical “how to” piece on lawyering in the courtroom with filmic evidence. To that end, I have been watching lots of police films (a subset of what I have called “evidence verite”). These films can be found without much effort on YouTube or VideoSpider. Anyone else out there know of good sites storing this kind of [...]]]> Thanks for having me here at Concurring Opinions. I haven’t blogged for some time – reminding myself there is life outside of the Web – but for the next month I am excited to reengage my blogging-self and hopefully some readers of this blog.

One of my summer projects is to think about how to turn some of my more theoretical writing on law and film into a practical “how to” piece on lawyering in the courtroom with filmic evidence. To that end, I have been watching lots of police films (a subset of what I have called “evidence verite”). These films can be found without much effort on YouTube or VideoSpider. Anyone else out there know of good sites storing this kind of film footage, I would love to hear about it. I found one piece of footage that is the subject of a recent court case – Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008) – which can be found here. This film, of the police using a tremendous amount of force to subdue Nathanial Jones (who subsequently died), is an excellent example of how the film frame (what is seen and what is not seen due to the limits of the camera’s size and angle) can affect the viewer’s response to the images. When watching this film, we must imagine the blows delivered and the pain received because both are off-camera. How we imagine them might depend on our experience with police brutality more generally. (We do hear the police and the criminal suspect protesting loudly.) Do we imagine Hollywood violence (which way does that cut for the defendant here)? Do we have any experience seeing this kind of violence first or second hand so that it is hard to imagine anything but the worst? The boundaries of imagination are hard to predict and therefore a formidable opponent in a court of law. Imagination is obviously not evidence in a court of law, although it likely wields mighty influence nonetheless. A former student suggested to me that not seeing the blows Nathanial Jones suffered makes us more callous to the pain he received. I tend to think that is the case.

The Sixth Circuit in Jones v. City of Cincinnati affirmed the district court’s refusal to dismiss the case on defendant’s 12(b)(6) motion and said this in relation to the film: “Where the evidence ‘captures only part of the incident and would provide a distorted view of the events at issue,’ as the district court concluded with respect to the videotape, we do not require a court to consider that evidence on a 12(b)(6) motion.” Id. at 561. To this, I would say “no kidding,” but we will have to wait and see what the trial court does on a Rule 56 motion. Given the Supreme Court’s decision in Scott v. Harris, I remain skeptical that a court can resist the myth of film’s obviousness and objectivity.

For those who need a refresher, Scott v. Harris was the 2007 Supreme Court case concerning a high speed police chase that resulted in the police ramming the suspect’s car causing him to become a quadriplegic. A police camera on the cruiser recorded the chase from the point of view of the police car, and the Supreme Court said that the trial court should have considered the facts in that case “in the light depicted by the videotape” despite contradictory testimony. For an excellent analysis of the flaws of that case, see Howard Wasserman’s short piece here . For an even shorter analysis, see my Op-Ed here . For a longer more empirical analysis of the video in the case, see Kahan et al. here.

How do courts and lawyers deal with filmic evidence in light of film’s inevitably partial nature? That is what my new piece is working through with some practical tips on cross-examining film in a courtroom. The piece should be up on-line soon. For those who want a preview, feel free to email me.

Orin Kerr writes:

Justice Scalia’s view has popular appeal precisely because it is based on populism. His basic theme is that the People created the Constitution, and they can set rules with in it. If the People want to change the Constitution, they can. But it’s up to them. In this view, the People decide: Every citizen is empowered to participate in the rule making that governs us all. I think this resonates not because Justice Scalia is a legal Pied Piper but because the message itself is quite powerful (and to me, I confess, pretty persuasive). At bottom, it’s “we the people.”

Kerr notes that [...]]]> Over at Convictions and Balkinization, Orin Kerr and Jack Balkin are having an interesting discussion about Justice Scalia’s constitutionalism versus liberal constitutionalism.

Orin Kerr writes:

Justice Scalia’s view has popular appeal precisely because it is based on populism. His basic theme is that the People created the Constitution, and they can set rules with in it. If the People want to change the Constitution, they can. But it’s up to them. In this view, the People decide: Every citizen is empowered to participate in the rule making that governs us all. I think this resonates not because Justice Scalia is a legal Pied Piper but because the message itself is quite powerful (and to me, I confess, pretty persuasive). At bottom, it’s “we the people.”

Kerr notes that liberal constitutionalism can be defended by arguing that “some limitations on democratic rule making actually enhance democratic rule making.” But, Kerr notes: “This is a very popular move among academics, although it can be hard to sell to the public.” Kerr also contends that another option is “to forget about theory and instead focus on results. . . . The idea is to focus on the bad results that are possible if courts let elected branches run amok, and then ask whether you want to live in a world with good results or the potential for bad ones.”

Jack Balkin contends that “Scalia may say his originalism is respectful of majority rule, but he is perfectly happy to strike down lots of laws for which there is little basis in the original expected application.” Balkin goes on to argue:

By contrast, liberal constitutionalism is far more honest. Its basic principles are simple. First, we must be faithful to the constitutional text and to the basic principles of the Constitution that underlie it. Second, we must apply and adapt these principles in the text to changing times. Liberal constitutionalists from Brandeis to Brennan have made these two basic claims over and over again: Be faithful to the constitution’s text and principles, and apply them faithfully to new circumstances and new challenges.

I have a few thoughts to add to this debate:

1. The quest in theories of constitutional interpretation has often been to find a way to legitimate judicial review. What gives courts the power to stop the will of the majority? The problem is that in a post-realist age, we realize that the Constitution is not very constraining and that justices can interpret it as freely as they can a Rorschach blot. This makes the quest for legitimacy a very difficult one, in at least two senses: (1) we need a theory for why a document written hundreds of years ago can bind us today, even when a large majority of us may want to do something; (2) we need a theory for why judicial interpretations of this document are authoritative and not merely the gussied-up projection of a justice’s preferences. All sorts of valiant efforts have been made to find legitimacy in these two senses.

2. I’m not sure we should be so obsessed with legitimacy, because I’m not sure that we’ll ever come up with a satisfactory way to achieve it. Kerr might very well be right that most theories to find legitimacy might appeal more to theorists than to the general public, and that’s a big problem, for at least one main reason why legitimacy is sought is to convince the public of the validity of the Court’s decisions. Paul Kahn’s Legitimacy and History (1993) makes a very powerful argument for why the quest for legitimacy is futile.

3. Justice Scalia’s populist constitutionalism is also deeply flawed. He says he’s reluctant to overturn the will of the majority, but as Balkin notes, that’s just false. Scalia’s brand of originalism is just one theory among many to claim legitimacy, a way to argue that Scalia’s interpretations are somehow more grounded than other justices’ interpretations, that he somehow has insight into the true meaning of the Constitution. But there is no true meaning of the Constitution. And Scalia’s method of interpretation is no more legitimate than many other methods. The realist in me says that this entire debate is about sloganeering. Everybody wants their vision to be the true meaning of the Constitution, and it devolves into a silly game of “I’m more legitimate than you.”

4. Our government is structured on a dilemma that the Framers couldn’t fully resolve. They wanted a robust democracy, yet they also didn’t really like robust majority rule. It seems fairly clear that the Framers were quite intent on limiting majority rule. We could, for example, have a much more minimalist Constitution, and entrust more to the will of the people. But we don’t. The Framers were very distrustful of majority rule, and they tried all sorts of techniques to limit it. Of course, the Framers didn’t want a monarchy (too strong an executive power) or an oligarchy (government by judiciary, too strong a judicial power). Nor did they want too much populism. They faced a tough problem — what do you do when you don’t like any of the available options for government? The answer: Throw it all in there, mash it up, stir it, and bake it into one of those inedible English meat pies. We have a combination of everything in our government. What it isn’t, however, is a system predominantly about majority rule. The countermajoritarian difficulty is a creature of Alexander Bickel’s creation — it has a lot of resonance today because being countermajoritarian is a pejorative to most modern sensibilities. But countermajoritarianism was a feature, not a defect for many Framers.

5. Suppose you’re a legal realist, and you’re deeply skeptical of the judiciary interpreting the Constitution in a way that’s objective and neutral (because legal realists know that such a task isn’t really possible). You think that democracy is a good thing and it is better for majorities to have their way than for some unelected justices to impose their own preferences via the guise of constitutional “interpretation.” There are a few options: (a) become a proponent of judicial restraint; (b) become a judicial activist because, heck, it’s all illegitimate and if you’re on the Supreme Court, you might as well have a bit of fun with all your powers. Whether you do (a) or (b), you should be sure to create your own theory of constitutional interpretation and play the rhetorical game of arguing that it is legitimate and captures the true meaning of the Constitution. Of course, since you’re a realist, you don’t really believe all the rhetoric you spew, but you need something to justify your actions rather than look like you’re exercising raw power. If these are the choices, then judicial restraint seems like the least bad among a series of rather unpalatable options.

6. But all that said above, I think that (b) is actually the better option. I’ve stacked the deck against myself, so I’ve got some explaining to do. First, I agree with the Framers and their skepticism of majoritarianism. There are many reasons why we don’t want pure majority rule. Majorities often don’t have the interests of minorities in mind. Majorities might readily sacrifice liberties for the fears of the moment or for short-sighted gains. One of the virtues of constitutions is that they put the brakes on rapid changes, preventing a society from changing core values in a pinch. They mandate that change occurs slowly. In this respect, constitutions have a conservative function in the Burkean sense.

7. I also agree with Bruce Ackerman’s critique of the legislative process, which often doesn’t reflect majority will or the voice of the people. All too often, “we the people” are invoked to justify the legitimacy of legislation, but it’s largely not true that laws represent populist will. Some do, but many don’t. Finding the true populist will is made more difficult in the modern age by the fact that our country is so large, that government has become far more bureaucratic, that there are countless issues and limited time for most people to keep up with them all (let alone even our representatives, who require extensive staffs to keep themselves informed).

8. A key virtue of the Constitution, in my opinion, is that it is a tool that promotes freedom. Freedom, of course, is subject to many perspectives, but one of the Constitution’s great attributes is that it limits government power. It ensures that people have rights, that government should be overseen and be accountable, and so on. Regardless of whether the majority wants a right to free speech, the Constitution mandates that it exist. And that’s the point when it comes to rights.

9. I believe that the Constitution should be interpreted according to one’s guiding vision of the good society. Many scholars have attempted to find some kind of neutral procedural approach toward constitutionalism — but as Laurence Tribe persuasively pointed out in Constitutional Choices, the flight from substance is futile. It is more honest if a justice is up front about the substantive vision behind his or her interpretation of the Constitution.

10. But what limits or constrains constitutional interpretation? We don’t want rule by oligarchs on the Supreme Court. There must be some constraining factors on how robustly justices can interpret the Constitution. I think that some kind of originalism or textualism is appropriate. Justices shouldn’t interpret the Constitution blindly, completely ignoring the text. Nor should they completely repudiate the history of the document. So looking to what the Framers intended should be instructive, but not necessarily controlling. It is also useful to look to history — as Bruce Ackerman notes, the meaning of the Constitution has shifted over time, and it is impractical (and normatively undesirable) to go back to the original meaning. Different moments in history have radically reshaped our vision of the Constitution. All this, however, doesn’t do a lot to limit constitutional interpretation. Indeed, I don’t think that there are firm ways to create such limits. A major limiting factor is a justice’s own attempt to be coherent, to appear to have fidelity to a theory of constitutionalism, to be able to articulate reasons for his or her decisions that the legal community and the general public find compelling (or at least acceptable).

11. Another limiting factor is the ability of the people to amend the Constitution. Here is where there’s a big flaw in the Constitution. It’s way too difficult to amend. While it shouldn’t be easy to amend (or else it dissolves into nothing but majoritarianism), it currently is close to impossible to change. As a result, as Bruce Ackerman has pointed out, we’ve amended the Constitution through interpretation — it’s easier to get the change we need that way. Otherwise, we’d be too bound by the dead hand. But part of the problem with this is that once the Supreme Court has decided something, it too strongly trumps the majority. A Constitution should put the brakes on popular will, it should slow down the process of change, but it can’t be too constraining. Our Constitution currently is too constraining. The only way to let out the steam is to interpret the Constitution is some pretty funky ways. When these interpretations don’t spark the ire of the people over time, then they are accepted. Although controversial at the time, Brown v. Board of Education is largely accepted today. When interpretations conflict with popular will over the course of a long time, these interpretations are often (though not always) chipped away at or overruled.

12. The solution seems to me to be to make the Constitution easier to amend (not too easy, but not nearly as difficult as it is now). A key factor in the process of changing the Constitution is that it should be slow — there needs to be some time for deliberation and cooling off so that the Constitution doesn’t just reflect the whims of the moment. If the Supreme Court decides something that strongly cuts against popular will, and it remains this way for a while, then the people should be able to change it. Supreme Court opinions are currently showstoppers. They shouldn’t be. Making the Constitution easier to amend will lessen the impact of Supreme Court decisions. The Court won’t be the final word. This also addresses (in part) the legitimacy problem. It may be that the quest for legitimacy can never be satisfactorily satisfied, but if the Constitution is easier to amend, the legitimacy of a judicial interpretation becomes less important. It also opens up the possibility for legitimacy to be conferred after-the-fact. If a Supreme Court decision stands the test of time (i.e., isn’t reversed via amendment), then it is at least something the people can live with. That’s not quite as pure a legitimacy as those seeking legitimacy would like, but it’s probably about as much legitimacy as one might get in a post-realist age.

Much of the interest in Stevenson’s tale lies in its status as a moral allegory about the human character, not as an exploration of Jekyll’s uniquely conflicted psyche. If Jekyll’s “underlying illness” is universally shared, should it be taken into consideration when we ask whether Hyde’s crimes were brought about by a voluntary act? Jekyll and Hyde thus opens up extensive vistas for discussion of different degrees of criminal liability.

And there are some provocative reflections on Brave New World from Tracy Lightcap:

What Huxley [...]]]> Literature with implications for law and politics is the topic of this special issue of the Law and Politics Book Review. It has many bite-sized reviews/reflections. I particularly liked these thoughts from Simon Stern on Dr. Jekyll and Mr. Hyde:

Much of the interest in Stevenson’s tale lies in its status as a moral allegory about the human character, not as an exploration of Jekyll’s uniquely conflicted psyche. If Jekyll’s “underlying illness” is universally shared, should it be taken into consideration when we ask whether Hyde’s crimes were brought about by a voluntary act? Jekyll and Hyde thus opens up extensive vistas for discussion of different degrees of criminal liability.

And there are some provocative reflections on Brave New World from Tracy Lightcap:

What Huxley was trying to point out about the World State, is not that happiness and stability are undesirable, but that happiness and stability have to be achieved by societies that put individuals, not institutions, first. As Huxley says, “In this community economics would be decentralist and Henry-Georgian, politics Kropotkinesque cooperative. Science and technology would be used as though, like the Sabbath, they had been made for man, not . . . as though man were adapted and enslaved to them. Religion would be the conscious and intelligent pursuit of man’s Final End . . . And the prevailing philosophy of life would be a kind of Higher Utilitarianism, in which . . . the first question to be asked in every contingency of life being ‘How will this thought or action contribute to or interfere with, the achievement, by me and the greatest number of other individuals, of man’s Final End’” (pp.ix-x).

There is a good deal of food for thought in these and the 20 or so other reviews in the issue.

A comprehensive survey of over 2 million federal appellate opinions over the past 100 years reveals only 543 identifiable citations or references to works of fiction. Of these, less than half – 236 – were employed rhetorically to evoke an emotional response in the reader. This type of citation, which I’ll call a “literary” citation, occurs in only about 1 out of every 10,000 federal appellate opinions.

Todd’s data is quite interesting, but I disagree with how he frames his essay and some of the conclusions he draws. Todd writes:

[A] central claim [...]]]> Professor Todd Henderson (U. Chicago Law School) has posted an interesting article on SSRN, Citing Fiction, 11 Green Bag 2d 171 (2008). He provides many illuminating facts about judges citing literary works:

A comprehensive survey of over 2 million federal appellate opinions over the past 100 years reveals only 543 identifiable citations or references to works of fiction. Of these, less than half – 236 – were employed rhetorically to evoke an emotional response in the reader. This type of citation, which I’ll call a “literary” citation, occurs in only about 1 out of every 10,000 federal appellate opinions.

Todd’s data is quite interesting, but I disagree with how he frames his essay and some of the conclusions he draws. Todd writes:

[A] central claim of the law and literature movement (which I’ll refer to as “the Movement”) is that reading fiction can provide judges with knowledge about how to solve real world problems. For example, Professor Martha Nussbaum writes that “the novel constructs a paradigm of a style of ethical reasoning … in which we get potentially universalizable concrete prescriptions by bringing a general idea of human flourishing to bear on a concrete situation.” If this is true and the Movement has had a significant effect on law, one would expect to see an increase in the use of literature in judicial opinions, since judges routinely cite to works that have a direct impact on their decisionmaking. We should also expect to see works cited for the reasons the Movement wants them to be – to reveal that the fiction has evoked feelings of pity and empathy for the less fortunate and given a voice to traditionally marginalized segments of society. Neither of these things is true.

Unpacking this paragraph, I see the following claims: (1) whether the law and literature movement “has had a significant effect on law” can be assessed by instances when literature has a “direct impact” on judicial decisionmaking; (2) “central” claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with “knowledge about how to solve real world problems”; and (3) citations will demonstrate whether literature has a “direct impact” on a judge’s decisionmaking.

Let’s begin with the first claim: Whether the law and literature movement “has had a significant effect on law” can be assessed by instances when literature has a “direct impact” on judicial decisionmaking.

This claim begins with an assumption that having a significant effect should be measured by having a direct impact. But it is unclear why the significant effect must be a direct impact rather than an indirect one. Reading Orwell’s 1984 might help shape how judges perceive surveillance and government power. Will it directly affect their decisions? Probably not, if direct effects mean that but for reading Orwell’s book, a judge inclined to decide a case one way will now decide it another way. But it might have helped shaped a judge’s mindset along with other works of literature and a number of other social and cultural experiences. It might have an indirect effect. The difficulty is that looking for direct impact is far too demanding a requirement.

On to the second claim: “Central” claims of the law and literature movement are that literature makes judges more ethical or empathetic and that literature provides judges with “knowledge about how to solve real world problems”

I quarrel with the argument that a “central” claim of the law and literature movement is to make judges more empathetic or ethical, or to give them “knowledge about how to solve real world problems.” I don’t think that literature necessarily makes one more moral, ethical, or empathetic. Nor do I think that literature provides specific “solutions” to problems. Literature can provide a critique or commentary about the law. It can develop thinking, reasoning, and interpretive skills. It can provide insight into jurisprudential questions, and it can help people see between the lines, be more nuanced, recognize ambiguity, see different interpretations, and so on.

While there are some in the law and literature movement who have claimed that literature makes lawyers more ethical or empathetic, most have not made such claims. Todd’s quote from Martha Nussbaum doesn’t suggest she makes these claims. Instead, Nussbaum seems to be saying that literature can contain ethical teachings and that it embodies them in concrete situations. I agree with this. The fact that literature can illustrate an ethical prescription by embodying it in concrete situations doesn’t mean that the reader will necessarily agree with the ethical prescription. Moreover, much literature is not dogmatic about any particular ethical or moral view — it often demonstrates the ambiguities and tensions in various ideas. Literature is not the same as a philosophical or political argument. It is often more suggestive and ambiguous.

Finally, it’s time to turn to the third claim that I’ve parsed out of Todd’s essay: Citations will demonstrate whether literature has a “direct impact” on a judge’s decisionmaking.

The legal academy has a fetish over citations. Because it is so fun and easy to play around with Westlaw, we can now readily do studies about citations. This data is quite interesting, but it is tempting to make too much of it.

What exactly does the lack of citations to literature mean? First, even if a literary work had a “direct impact” on a judge’s decision, I doubt in many cases the judge would admit this. Judges often read and rely on law review articles they never cite. Judges might be informed by history, philosophy, sociology, economics, etc. and might not cite to such works. What would we think of the judge who writes: “For the reasons stated in Dickens’ works, I hereby conclude that this case should be decided in favor of the ‘little guy’”? Does a judge who is heavily influenced by a particular philosophy need to cite to specific philosophical works? So a judge influenced by Rawls might never cite to Rawls. Judge Richard Posner is influenced by pragmatism, yet he doesn’t cite to works by William James or John Dewey in every opinion in which he employs pragmatic ideas. The bottom line is this: Cites don’t necessarily prove influence or impact, or the lack thereof. They show how many times something has been cited to. People often read much more into cites than they should.

The influence of literature is quite indirect. It provides ideas and fodder for thought. But rarely does it have a direct bearing on any particular case. It doesn’t hold any particular authority over the judge. It’s not precedent. It doesn’t provide a syllogistic argument or complete analysis of a particular problem. But it still might be influential. A judge might reason, interpret, think, and perceive things differently for having read certain works of literature. There’s no easy way to measure this.

So that ends my critique, but on the positive side, I did find some really interesting facts in Todd’s article:

* “In the Seventh Circuit, Judges Posner and Easterbrook combined for nearly all citations to fiction, and over 80 percent of all references to George Orwell.”

* “On the Supreme Court, Justices Brennan and Douglas accounted for most references to Orwell. Judges have favorite authors or themes, and they cite to them again and again.”

* [O]f the 110 Supreme Court justices who have served, only 21 have ever cited to the authors or works in this survey. The leading Supreme Court fiction citers are Justices Douglas, Stevens, Brennan, and Rehnquist, each of whom has cited to fiction around five times. These four justices account for almost 50 percent of all Supreme Court citations to fiction.”

* “About half of all citations are about the law’s delay, the definition of legal terms, and the role of courts in our system, not about generating empathy for litigants.”

* The most frequently cited authors are “George Orwell (61 citations); William Shakespeare (35); Franz Kafka (34); John Milton (20); Homer, Chaucer, and Oscar Wilde (14 each).”

* “[J]ustices appointed by Democrats or with an otherwise liberal voting record made almost 80 percent of all literary citations.”

* “In the Supreme Court, nearly three-quarters of literary citations are in dissenting or concurring opinions (63 percent in dissenting; 27 percent in majority; and 10 percent in concurring). In the circuit courts, by contrast, the reverse is largely true, with about 64 percent in majority opinions and 36 percent in dissenting and concurring opinions.”

I’m pleased to see Orwell and Kafka as being among the most-cited literary works. I once wrote about how conceptions of information privacy and computer databases are framed in terms of Orwell and how they might better be framed in terms of Kafka.

Today’s W$J offers an interesting article along this line. According to researchers at Oxford, we’re hard-wired to respond to baby faces in positive ways: Using a technique called magneto-encephalography that measures brain signals, the Oxford researchers found that a baby’s face can seize our attention in milliseconds, activating an unusual mental organ called the fusiform gyrus that responds to human faces. Moreover, these distinctive infant features, unlike the [...]]]> I’ve argued (here, here, & here) that there is a gap between how jurists generally imagine that consumers behave (and should be protected) and the technological tools available to clever marketers. The slogan I’ve come up with is total persuasion: “a society in which most speech that you hear is designed to persuade you to consume.”

Today’s W$J offers an interesting article along this line. According to researchers at Oxford, we’re hard-wired to respond to baby faces in positive ways:

Using a technique called magneto-encephalography that measures brain signals, the Oxford researchers found that a baby’s face can seize our attention in milliseconds, activating an unusual mental organ called the fusiform gyrus that responds to human faces. Moreover, these distinctive infant features, unlike the mature features of an adult, trigger a sense of reward and good feeling in a seventh of a second. Picture Bambi’s saucer-size eyes or those of Mickey Mouse.

And from later in the article:

Through brain-scanning experiments, researchers have located the neurochemical essence of our face expertise in a strip of temporal-lobe tissue about two inches long and three-quarters of an inch wide. Studying this face recognition area in macaque monkeys, neurobiologist Doris Tsao at the University of Bremen, Germany, reported in Science that the tissue consisted almost entirely of neurons that responded just to faces.

To understand how the tissue develops, Yoichi Sugita at Japan’s Neuroscience Research Institute raised infant monkeys for two years without ever showing them a face. Lab workers wore hoods. When faces were finally revealed to them, the monkeys could readily tell them apart, Dr. Sugita reported in January in the Proceedings of the National Academy of Sciences.

“It is mind-blowing,” Dr. Kanwisher said. “If you had to bet, you would bet it is innate.”

What can/should the law do about these findings, which, after all, confirm common intuitions. See Steven Jay Gould’s A Biological Homage to Mickey Mouse, in The Panda’s Thumb.

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 [...]]]>

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.

PART II: POLITICS AND ECONOMY

Dave Hoffman: I’m going to explore with you some of the political and economic themes in the show. Just like the [topics of the] legal system and torture that we’ve been talking about, [let's discuss] the [Colonials'] political and economic systems under severe stress. I wanted to talk a little bit about the economy to start.

So in the [season two] episode “Black Market,” we learn that their current economic system looks like Soviet-era Russia with a state-run distribution of economic goods, supplemented by a black market [with] luxury [items] and medicines. [Earlier], in [season one's] “Bastille Day,” we learn that the Fleet has engaged in forced labor in the past. Finally, we know from [season three's] “Dirty Hands,” and maybe after “Dirty Hands,” that there’s a work rotation in place. All these systems imply an absence of a market economy. We know very little, however, about how the economy is supposed to work. Was this a deliberate dramatic choice?

David Eick: Before either of us answers, I just want to say that I’m sorry that [Dave] mentioned ”

Black Market.” I meant to sent a memo before this that no one was allowed to bring that up.

Hoffman: What’s wrong with “Black Market“?

Eick (laughing): Oh nothing!

Ron Moore: Not one of my favorites.

Hoffman: Ah. . . .

Moore: [Regarding] the economic system, we started from the assumption [that] the Colonial society that was destroyed was very analogous to our own [American society]. It was a capitalist society; it was a democratic society. The culture was very similar [to our own]. We wanted all those touchstones. We assumed that there was an economic system very similar to that in which we operate now. We then started thinking in broader terms: Okay, there’s Twelve Colonies. Each one is on its own planet, [and] they probably have a lot of variation [between] them. Probably more than the states [in the US] do between them, but maybe not [as much] as nations do between them. [The variation among them is] in some sort of middle ground between the two, [with] a certain amount of autonomy to each Colony, but they were in some federal existence.

Also, [they were] in some kind of trade partnership with one another [with] some commonwealth [like] notion. Then, after the apocalypse and the exodus from the Twelve Colonies, now [the people are] just in space, in just these ships. At that point, you had the top-down system. “Okay, we’ve got to distribute; we’ve got to divide up the supplies; we have to ration certain things; we have to make sure everyone is getting fed, everyone is getting clothed, everyone has fuel for their ships.” It just felt like there had to be this very strong hand of authority from above.

But as things went on [the] black market would develop. Naturally, there would be the impulse to return to capitalist systems [and] that the market would assert itself. There would be a tension. The idea of the episode, “Black Market” — which was a little too complex for television (and certainly in the way we went about it) — was to try to illustrate that tension. Okay, here Laura [Roslin] is trying to guide them back to a market-driven system and introduce a currency [in an attempt to] move them off of an authoritarian scheme, but the black market was already getting more and more powerful. It was starting to devolve into power bases, and ruthlessness, and killings, and all these other things. It was supposed to be an episode to try to say: “The market will be heard even in that place, and you have to make some accommodation for the fact that people will be people. They will always try to trade what they have, and they will always seek out what they don’t have.”

A scene from the episode “Black Market”

Hoffman: So you guys don’t feel like that episode succeeded as dramatically as you hoped it would. Is that one of the reasons you haven’t returned to trying to figure out what daily economic life looks like on a civilian ship?

Moore: Partially, but also we were scalded by the experience dramatically. ["Black Market"] failed dramatically as a character piece and as a story. I just wasn’t satisfied with it. It’s also limited by the fact that, in a production sense for the show, production constraints are such that we have a great difficulty setting episodes aboard other civilian ships. It’s very, very expensive and requires a lot of resources. We’ve generally chosen to put those resources into other areas, instead of completely setting up civilian society and an economic system somewhere else and really explore it.

But we’ve done a little bit [in that regard]. In “Dirty Hands,” we went over and saw conditions aboard the [tylium] refinery ship and [explored the issue of] labor. [Also,] we brought civilians aboard Galactica in season three and put them downstairs in the hangar deck [a.k.a. "Dogsville"]. We wanted this [civilian group] to be its own little socioeconomic sub-group, but it just never quite pulled the drama for us as storytellers. We just kept on finding other things to do.

Eick: As Michael Rymer (our producer [who] directed the mini-series and [our] most memorable episodes) likes to say — he’s Australian — “when I do somethin’, I do it prop’rly.” It’s very difficult to do stories like that “prop’rly” because, as Ron was saying, [we have limited] production resources. And you’d be surprised [at how difficult it is to] cram the density of stories like this into 40 minutes. (That’s what an hour of TV is now — 40 minutes.)

Since it’s difficult, you find yourself left to make the decision to spend those resources [between] the areas [of]: “Let’s build a new ship. Let’s do this, let’s do that.” Then you get into the cutting room and the episode’s 20 minutes too long. Guess what goes? All the stuff you spent your resources building because the reality of the show [is that it] ultimately wants to be about these people in the places that the audience has been accustomed to seeing them. [By spending your resources building unique sets and other trappings] it just becomes a luxury you can’t afford either economically or time-wise. I think eventually we gave up trying to make that a staple of the show.

It’s worth mentioning that in the selling of the show, we had to go to great lengths to assure the network that the show would not be war-culture rooted. [We had to assure the network] that we would be exploring the elementary school ship, the shopping mall ship, the Disney Land ship, and the nightclub ships. None of that ever really happened.

Hoffman: It seems like that in the first and second season there were more forays into [life on ships in the Fleet], like the meeting ship [Cloud 9] or the movie theater ship. [Transcriber's Note: Hoffman is likely referring to "Downloaded" when the Cylons are watching D'Anna's transmission in a movie theater, which is presumably on the Colonies and not set in a ship.] [And this] didn’t really go through, [so the answer to my earlier question] is going to be no. You’re not going to do an episode from the perspective of ordinary Fleet members.

Ron, you’ve [worked on] both “[Star] Treks” ([The Next Generation] and [Deep Space 9]), and there are often these [episodes that] once in a while [were] not [focused on the] main characters.

Moore: Yeah, but the trick on those episodes (even in Trek) [is] that the point of view is usually [of] someone [who] is a low-ranking crewmember who is already aboard the Enterprise [like TNG's "Lower Decks"] or on board the space station. You’re just shifting the perspective slightly, but not literally taking it off the ship and planting it somewhere else.

Hoffman: Right. I guess the big question is: Why do people do any work on the Fleet? In the absence of economic incentive to do so, are they forced to work at gunpoint? Is everyone like the folks [on the tylium ship] in “Dirty Hands“?

Eick: We’ve had a lot of conversation about that in “33,” which is the first episode of the one-hour series. I remember boiling it down to a particular moment in which a mistake that Dualla had made [in losing the Olympic Carrier] had cost them dearly, and Tigh, walking up and down the CIC, was yelling: “We’re all here to do our jobs.”

I remember looking at the footage, and everyone’s exhausted. They haven’t slept in days and days and days. They look like they’re about to keel over, and there was a part of you . . . . (I can’t remember, Ron, if we talked about this in the story phase or the script phase, or edit phase. . . I can’t remember), but there was a part of you that was [asking]: “Why are they doing their jobs? Why don’t they just say, ‘Blow me!’ and throw up their hands and walk away?”

I remember the answer being [that] particularly when people are in dire straits, when it is all about survival, it’s surprising how they do take solace in having a purpose, in having a role to play in that community structure, in the idea that they’re a smaller part of a greater whole. That’s actually part of human survival, and we would talk a lot about things like [for example, the fact that the Jews in Germany] would still have Hanukkah in concentration camps [during World War II]. There were jobs. There was a social structure within even the most desperate situations.

It’s a really compelling question to me because I know that was a big question for us very early on. We all just said: “You know, they do it because to not do it is to die on some level.”

The tylium ship in “Dirty Hands”

Moore: There was an interesting line that [Tom] Zarek had in [season one's] “Colonial Day,” where he’s making his case for a collectivist approach to their government, and [arguing that] they should leave all the trappings behind [from] the old system. He was with some reporters, walking around on that ship that had a simulated outdoors [Cloud 9], and he pointed over to a gardener and said, “This guy gets up every morning and goes to work, and he gardens. Why? To what end?” He said, “It’s like we [are] all just repeating the motions. We’re just repeating these tasks we used to do. We have lawyers who are still pretend to be lawyers.” There was a sense of inertia, at least in those early days, that they all were going to continue to try to just keep doing what they used to do, because to give up that identity (to give up your identity as “the gardener,” to give up your identity as “the lawyer”) was to essentially cast [yourself] into the abyss. You would have no identity. So there were those pressures on these people as well.

Hoffman: I get that, essentially in the early seasons. I get that with the military and other collectivist sub-cultures. But after they have the interim on the planet [New Caprica] and then they go back to the Fleet, the question I’ve always had was: “Why are there journalists still?”

Moore: The society does have to do things like propagate information, so it seemed like there was an incentive for the government to want to have a press, to want to have ways of conveying information. If you believed in a free press, and if you believed that it was fundamental to a democratic society, you would allow the journalists to continue to operate like that and not appoint your own minister of propaganda.

Hoffman: I understand why the government would want it, but what do the people (such as the journalists) get out of it?

Moore: Yeah, one of the things that we’ve skirted around a little bit is how they are compensated. We initially were going to dispense with the idea of money, that the whole thing was going to evolve to a barter system. That became very awkward just for dramatic purposes, to continually just barter for everything. You’ll see some examples of that in the early days. Baltar bets his shirt in a poker [triad] game and et cetera.

We just defaulted to an idea that they’re still going to use currency. We want to keep using currency in the show for dramatic purposes. Let’s just assume that, somehow, the economic system has asserted itself. They still place value in money in some way, shape, or form. They all decided [to continue to place value on their currency], like we decide in this strange dream of a world where pieces of paper with dead presidents on it has real value. Somehow, they ascribe the same meaning to whatever form of currency they’ve got. It’s still scarce; it’s still buys you things; it still wants to make you accumulate it; it accrues wealth and status to you if you have it.

Once we’ve accepted that premise, it felt like somebody’s paying somebody in some fashion we don’t quite understand and we don’t want to examine. We don’t know what really stands behind it. There’s nothing of intrinsic value backing up the currency, but let’s just slide by that because if we look too closely to that aspect of the culture, it collapses and, darn it, we need them to be making bets in the poker game with something.

Eick: The journalist thing is so funny. I can’t remember what the first episode was that we introduced the press conference in, but I was on the set, and somehow or another, that question came up. It may have been Eddie Olmos who asked. He loves to provoke exactly this category of things. “Why would that do that!?” [And I would say], “Eddie, you’re not in the scene.” [And he would reply:] “I don’t care, why would they [do that]?”

I remember saying to the director, “You see those people over there? Those 8, 16, or 20 extras that we have? They were journalists back in the day, before the attack. It’s what they know.” It’s like what Ron was saying earlier: It’s a way they have of maintaining their identity. “You see those 4 people over there? They always wanted to be journalists, but they couldn’t get arrested before the attacks, and now here’s their chance! And you see those three people over there? They fucking hate journalism and think the whole thing is a crock, and they’ve basically infiltrated the room because they can see if they can somehow undermine it.”

Everyone went, “Ok, that works!” There was at least a system of logic, even though when you watch the episode there’s no telling the difference between the three categories.

Hoffman: But one of them [D'Anna Biers] was a Cylon, as we learn later. . . And I guess that makes a good transition to [what] Deven’s going to talk to you about the Cylons . . . although I can talk to you about the economy all day long.

PART III: CYLONS

Deven Desai: To loop back to some of the things we said earlier, you pointed out [one of] the liberating aspects of having Cylons is that you can explore things that [become a little more touchy] in other contexts [such as when just humans are involved.] In some ways it reminds me of Philip K. Dick’s Do Androids Dream Electronic Sheep? and then the Blade Runner adaptation, where you seem to be playing with these ideas of implanted memories in Boomer, reminding me a little bit of Rachel [the Blade Runner replicant character]. The whole question out there is whether Decker is a replicant or not. At one level, it seems that you’re also looking at this question of what is it to be human. How do we treat those whom we see as different? Is that part of the lens that you’re playing with?

Moore (jokingly): First of all, what’s Blade Runner? It figured into our discussions from Day 1. Very influential.

Eick: And yes, Deckard is a replicant, for the record.

Moore: You’ve really put your finger on it. That’s something David and I have discussed from the moment we decided the Cylons were going to look like human beings. It raised all these questions which I just thought were fascinating. It just felt like that’s really what the show’s about. What is it to be human? What does it mean to be a person? The Cylons say they have souls. Can we say they don’t? How do we grant them status as people? What does it mean to be human? What are the attributes of being human? How would you know if you’re human [or] if you’re a Cylon?

All these questions felt fascinating, and it felt like the deeper we got into the series the more they came up. The more the Cylons exhibited human traits and human characteristics, the deeper and tougher the questions [became]. In the pilot, [the Cylons are] mostly off-camera. We only really meet a couple of them — they are pretty much the faceless enemy. They’re the enemy from beyond. They come; they destroy; they kill; they’re chasing [us]. They’re just implacable, they’re monsters. They’re literally machines, and they’re after you. There are hints along the way that there’s something more than that: that they have deeper interests.

[Like] Number Six in particular: she wants to be loved, she expresses a faith in god. Then the punch comes at the end [of the miniseries] when one of the characters you come to know and love–Sharon–turns out to be a Cylon. As the series went on, we started to develop the Cylons more and more deeply. We started treating them as simply human. They were human in all but name. They had a specific cultural history. They were a new civilization that had only been around for about 40 years, and they had very different ideas of truth and justice. They had different ideas of the cosmology of the universe and their place in it. They saw us as the enemy. We just started to play those ideas off against each other.

A cylon, model number six

Desai: Right. It seems like [that has been the case] all the way through then. If I remember correctly, even when Leoben is ejected in space [in "Flesh and Bone"] you have Starbuck pray for him. It was a great moment, I thought. Once you come into direct contact with something you set up as other, it becomes harder to not think of it as such, especially when [Cylons] look so much like humans. [The show develops] this dichotomy [between a simple] ruthless civilization [and a civilization with something of value to offer, perhaps with some attempt to mimic human civilization]. Is the humans’ belief system starting to have to construct the notion of: “Are our principles broad enough to encompass a group that is empirically not human, yet seems to mirror a lot of what humans are about?” Or are they going to be able to draw that line and say, “No matter what, that’s the dividing line. Our principles don’t apply. Our notions of what it is to be a sentient being that matters cuts off [at] this stage, because their spines glow red and they tend to wipe us out”?

Moore: I think that is the question of the show, which they’ve struggled with throughout. [William] Adama in particular has tried to draw a very bright line and say: “There are us, and there are them, and there’s no crossing of [that line].” Like I was talking about earlier, Adama gets to a place where he accepts Sharon ["Athena" Agathon] as a person. He does it because of a human interaction he has with her in particular, and most of that occurred off camera (which is a bit of a cheat), but most of it occurred during the missing year [between "Lay Down Your Burdens, Part II" and "Occupation"] where the [Colonials] are on New Caprica. Our back-story was that Adama used to go down and sit in that jail cell with her because he had a lot of time on his hands. He couldn’t quite wrap his mind around what this being was, and he found himself confessing things to her, talking to her, listening to her. Over the course of time, he just, at some point, stopped thinking of her as a machine and started to think of her as a person.

If you asked him, he would probably say [that] she’s different or something. He would probably not be willing to really extend that idea to them as a nation, because it just raises a host of other issues. It challenges some pretty basic assumptions. It challenges the ways they do business. It challenges the righteousness of their cause and how they view themselves.

Laura [Roslin] has to believe that [the Cylons] are just machines in order to contemplate in taking a genocidal act and even in that episode [season three's "Torn"], Adama’s in a place where he’s hesitating. He doesn’t really want to do it, even though he can’t come out and say, “Well, we can’t do it because they’re legitimate people, and they have souls like we do, and therefore we can’t wipe them out.” It doesn’t feel right to him. His heart, his instinct as a human being [is that they] feel like they’re about to cross a line. He himself is actually already crossed the line to accepting them as something more than he thought.

Desai: So on the Cylon side of that equation, they have their own culture and society. The religion seems to play a large role in their culture, in this rather unique and directed vision of what they’re about. That seems to rub against the humans’ vision of the world. I’m wondering what was happening with the Cylon perspective in terms of how they felt they had been treated by the humans, and whether or not there could be a peaceful solution to the friction. Or [was their view] “we’ve just waited until we’re ready, and we [will] just come at you”? It seems as though their religion plays a part in that role, but is there something else at work in the Cylon society?

Eick: One of the subtexts of their agenda, and it did go back to the earliest conversation Ron and I had about this area, was that there would be an agenda to take the baton from humanity and pursue the next phase of evolution — that it was the Cylons’ time. Therefore, we could dispense with what typically seems to have accompanied antagonists in stories like [the old "Battlestar Galactica"], where they have an axe to grind, a bloodthirsty agenda, a grizzly destiny that they’re trying to perpetrate — and somehow [if] we can just get away from them, we’ll be okay.

That all seems so old hat, and it felt like maybe you’d do that in a movie, but in a series you needed somehow — we’ve talked a lot about this — to emphasize with the antagonists, to feel that their point of view was justifiable, that it had legitimacy, that you could not only relate to it, but also sympathize with it. So we talked a lot about different cultures that found themselves faced with questions like that. How do we press on? How do we move forward? At one point, I remember we were talking about “Planet of the Apes” because [it] had that notion, that story about [apes vs. humans]. Human beings just sort of assumed that: “You guys [apes] are done. You had your time, and now it’s our time.” Then what would happen is that the apes just wouldn’t go away. In this story, we’re the apes. We’re the ones who were not as evolved and who won’t go away.

So I think in that regard, it always allowed us to continue to… It’s not that we haven’t depicted the Cylons as misbehaving. (laughter) We tend to maintain a sense of their having a reason for what they’re doing beyond bloodthirst and ennui.

Moore: Another thing about what’s happening on the Cylon side is that they’re a very young culture. They really have not been around that long, but they’re a full-blown society of sophisticated, thinking beings that are at a level of human understanding of what society is, and [they have] concepts of morality and philosophy. In some ways, they’ve evolved past us, but they’ve only been around for a few decades.

[In the beginning] they [are] very much in lockstep with one another. There’s unanimity among the models about what they should do and how to carry out the plan. As the series goes on, you see that start to fracture. You see that the models begin to assert independence, first from one another, then within the models themselves. They begin to assert a certain independence of thought. I think the challenges of that dynamic will inform very strongly the things that happen in the fourth season.

Desai: Right. Dan had some questions building on this because what you just said really gets into some of the parallels between what we’re seeing with the humans.

Daniel Solove: Yes. We start to see a little bit about how the Cylons start governing themselves, especially in season two and even more in season three. It is somewhat vague as to how the Cylons operate and how they govern themselves. There are some hints of democracy [in their government], but it’s not entirely so. You’ve explained the past that [the Cylons are] a very young society and you’ve deliberately kept [their modus operandi] somewhat vague. Can you elaborate a little bit on how are they starting to govern themselves? How do they envision their political system?

Moore: They started with sort of a democratic idea, but it was always unanimous. They always agreed on everything. In the backstory, the Cavil models — the Dean Stockwell models — objected early to certain ideas, but always went with the majority view and were always willing to acquiesce to that concept. In many decisions, they were in lockstep with one another. Once you got to the New Caprica experiment, then you can see there was open dissent. There were open arguments. The Sharons and the Sixes had unified as a bloc to treat the humans differently (to have a different relationship), and they convinced a majority of the Cylons to go along with that idea. They were all in it together, but you were starting to see that there were fractures forming within them. They were starting to line up on different sides, and those agendas would carry forward. [They] still [adhered to] the idea that there was no one that was superior [amongst them]; they had an egalitarian system where there were no formal leaders. There was no executive. There was no legislature. They were all together. The models were all equal to one another, and they all proceeded as a group. That was one of the defining characteristics of them as a society: that we are together.

[The Humanoid Cylons believed: "We were created because] God wanted us to go forward, and He has imbued us with souls, and He has given us this mission, and we are humanity’s children and His children. We are all on the same page and equal to one another.” Then you would see that as time went on, the characters (like the D’Annas) would start to assert themselves, even though no one else [among them] wanted them to. The D’Annas would start to take de facto control of situations and make de facto decisions without even consulting with the others. The Cavils started to get a little concerned about this dynamic.

The cylons, aboard a cylon ship

Solove: We definitely see — especially from the interview — that you both are students of history and have done a lot of thinking about political science and philosophy. So that raises the question: What are the political, legal, philosophical books that most influenced you as you were thinking about the show and writing the show?

Eick: Machiavelli, for starters. For me, [I mention Machiavelli's work] only because it seemed like that it dealt with one of the themes we’re talking about right now — about the morality of dissenting during a time of war and about the duties of leadership. The one I remember us talking about was Helter Skelter. (laughing) Well, maybe I was the only one talking about Helter Skelter, because it dealt with a similar idea of subculture leading itself to being in the position to inherit the mantle, as it were, [and to] take the baton and evolve forward. Of course, they were crazy, and the Cylons are deeply sane, but [indiscernible].

Moore: Yeah, I’m trying to think if there were specific books. There were a lot of books that came up, and I don’t remember if there was anything in particular. I’ve read a lot of Henry Kissinger’s work, and, in my mind, there was a lot of bubbling up of realpolitick, and making decisions as a president, or as a military leader, balancing the practical versus the idealistic. I remember his volume on diplomacy. I was reading, at some point during the process The Age of Federalism by Stanley Elkins and Eric McKitrick. It was fascinating because it was all about the birth of the American republic. I was fascinated with the young culture [of America at the time] and how they sort these things out. Everything was up for grabs [back then], I remember that being a really interesting idea early on. Neil Sheenan’s A Bright Shining Lie was on my bookshelf during a lot of the early going. [It explored] hopeless causes and realism, and tried to suss out what the truth was in a difficult situation.

I know that there weren’t a lot of direct correlations between any of these things [and what] we wrote. But [all these works helped us] deal with complicated issues, helped personalities [within the show] emerge, and provided answers for good and for bad. It’s a macro-level of watching the ebb and flow of history more than any specific story that was emblematic of what we were trying to do.

Dave Hoffman: Well, I think we’re out of time. We’re so grateful that you took so much time to talk with us. It was pretty fascinating. I know that there are lots of lawyers and, as Dan says, law professors who love the show and find your vision of the legal system’s reaction to catastrophe both frightening and motivating. I know that we are all looking forward to the next season. I guess the only question left is: Do you have massive spoilers you’d like to drop now?

(laughter)

Moore: Well, it’s going to be a rocky ride! It ain’t going to be an easy road to the end, let’s say it that way.

Desai: I guess the answer is “no” then.

Moore: No. (laughs)

Hoffman: We’re really grateful for you guys taking the time. Thank you so much!

Click here to read Part I of the interview.

Dave Hoffman, Deven Desai, and I are pleased to present Part III 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.

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 [...]]]>

Dave Hoffman, Deven Desai, and I are pleased to present Part III 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.

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.

Part III of the interview is 16 minutes, 15 seconds long. You can access it, along with Parts I and II, here.

UPDATE: The interview has now been transcribed. You can read Part I here, and Parts II and III here.

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.

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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.

Part II of the interview is 13 minutes, 57 seconds long. You can also access it, along with Part I, here.

Check back Tuesday morning, when we plan to post Part III of our interview — the final part — which addresses issues involving the cylons.

UPDATE: The interview has now been transcribed. You can read Part I here, and Parts II and III here.