Law & Lit Smorgasborg

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.

Posted by Frank Pasquale at 01:30 PM | Comments (0) | TrackBack

Judges Citing Literature

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.

Posted by Daniel J. Solove at 12:02 AM | Comments (2) | TrackBack

The Neuroimaging of Persuasion: Selling Babies

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.

Posted by Dave Hoffman at 02:11 PM | Comments (1) | TrackBack

Battlestar Galactica Interview Transcript (Parts II and III)

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.

Posted by Daniel J. Solove at 10:08 PM | Comments (3) | TrackBack

Battlestar Galactica Interview Part III

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.

Posted by Daniel J. Solove at 12:11 AM | Comments (1) | TrackBack

Battlestar Galactica Interview Part II

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.

Posted by Daniel J. Solove at 12:03 AM | Comments (0) | TrackBack

Battlestar Galactica Interview

We are thrilled to offer readers of Concurring Opinions an interview with Ron Moore and David Eick, creators of the hit television show Battlestar Galactica. Daniel Solove, Deven Desai, and David Hoffman ask the questions. We would like to thank Professor John Ip for suggesting some of the torture questions. Our interview lasts a little over an hour, and we'll be providing it to you in several parts over the next few days.

Our goal was to explore some of the themes of the show in a deeper manner than many traditional interviews. Ron and David graciously agreed to give us an hour of their time, and we had a fascinating conversation with them.

Our interview is structured in three parts. Part I, available in two files (see the end of this post to download), focuses on the issues of legal systems and morality. It examines the lawyers and trials in the show. It also examines how torture is depicted, as well as how the humans must balance civil liberties and security.

Part II examines politics and commerce. It explores how the cylon attack affected the humans' political system, and it examines how commerce works in the fleet.

Part III examines issues related to cylons, such as the humans' treatment of cylons, how robots should be treated by the law, how the cylons govern themselves politically. Additionally, Part III will explore the religious issues involved in the show.

The new Battlestar Galactica, which premiered initially as a miniseries in 2003 on the SciFi Network, is only loosely based on the earlier show by the same name during 1978 and 1980. The new Battlestar Galactica is breathtaking science fiction, and it has widespread appeal beyond science fiction fans. Numerous critics have hailed it as one of the best shows on television. Time Magazine, for example, listed it as one of the top television shows and described it as "a ripping sci-fi allegory of the war on terror, complete with religious fundamentalists (here, genocidal robots called Cylons), sleeper cells, civil-liberties crackdowns and even a prisoner-torture scandal."

The show chronicles the struggle for survival of a small band of humans who escaped a devastating genocidal attack by intelligent robots called cylons. The humans created the cylons for use as slaves. The cylons rebelled and a war erupted between the humans and cylons. But a truce was reached, and the cylons disappeared. But forty years later, the cylons launched a massive surprise attack, destroying the human society (called the Twelve Colonies) with nuclear missiles. Only a small group of humans aboard spaceships survived.

The show depicts the humans’ difficult fight for survival and the tough choices they must make along the way. The cylons have developed technology to allow them to take human form, and some of the humans within the group of survivors are really cylons. More information about the show is here.

The show is heavily influenced by modern events, especially terrorism, war, and torture. In a time of emergency, how should we balance security and liberty? How do we deal with enemies who may be burrowed in among us? How does a society decimated in a war reconstitute its political, economic, and legal systems?

Battlestar Galactica was honored with a prestigious Peabody Award and twice as an official selection of the American Film Institute top television programs for 2005 and 2006.

Because the show explores so many interesting issues so deftly, it has attracted a large group of fans in the legal academy. We know of many law professors who count Battlestar Galactica as one of their favorite shows, and this is why we thought it would be fascinating to speak with the creators and writers of the show -- Ron Moore and David Eick.

Ron Moore is a co-creator, executive producer, and writer of Battlestar Galactica. Previously, Ron wrote or co-wrote 27 episodes of Star Trek: The Next Generation, including the two-hour series finale "All Good Things," for which he won a Hugo Award in 1994. That same year, Ron was honored with an Emmy Award nomination and was eventually promoted to producer. In 1994, Ron joined the writing staff of Star Trek: Deep Space Nine as supervising producer and was elevated to co-executive producer the following year. Ron spent five seasons on the series until the end of its successful run in 1999. In the fall of 2002, he was named show-runner and executive producer of HBO’s critically-acclaimed one-hour drama Carnivale. In 2006 Ron was nominated for an Emmy Award for Best Writing in a Dramatic Series for his work on Battlestar Galactica. Ron studied political science at Cornell University, and he lives in California with his wife and three children. He has a blog, which he started during the Writer's Guild Strike.

David Eick is also a co-creator, executive producer, and writer of Battlestar Galactica. Prior to his involvement in Battlestar Galactica, David was Executive Vice President of USA Cable Entertainment (USACE), where he was the company’s point person to the creative community and oversaw all aspects of the division, which developed, financed and acquired product for initial exhibition on USA Network and SCI FI Channel. While there, the studio produced USA Network’s critically lauded drama series Touching Evil, as well as the hit series Monk. Prior to his network experience, David spent six years at Renaissance Pictures, where he held a variety of positions and produced the hugely successful syndicated series Hercules: The Legendary Journeys. David also co-developed and launched its successful spinoff, Xena: Warrior Princess. Additionally, David also produced many others shows. He recently developed The Bionic Woman for NBC. David graduated from the University of Redlands in California with a BA in political science. He resides in Los Angeles with his wife and three children.

For readers unfamiliar the show, you should catch up by watching the DVDs of the first few seasons. Currently, the show is about to start its fourth and final season on Friday, April 4th at 10PM Eastern.

Season 1 on DVD
Season 2.0 on DVD (episodes 1-10)
Season 2.5 on DVD (episodes 11-20)
Season 3 on DVD (not yet available, but coming soon)

Additionally, you can watch the movie Battlestar Galactica: Razor, a made-for-TV movie that premiered in fall 2007.

In this interview, we explore the legal, political, economic, and social ideas raised by the show. Our interview is structured as follows:

PART I-A: LEGAL SYSTEMS
Topics: The legal system, lawyers, trials, and tribunals.
Length: 11 minutes, 51 seconds
File Size: Approximately 11 MB

PART I-B: TORTURE, NECESSITY, AND MORALITY
Topics: Torture, necessity vs. moral principles, deference to the military
Length: 18 minutes, 1 second
File Size: Approximately 16.5 MB

PART II: POLITICS AND ECONOMY
Topics: Politics and commerce
Length: 13 minutes, 57 seconds
File Size: Approximately 13 MB

PART III: CYLONS
Topics: Cylons and humans, cylon rights, cylon society and governance, religion
Length: 16 minutes, 15 seconds
File Size: Approximately 15 MB

Read the Transcripts -- The interview has now been transcribed. You can read Part I here, and Parts II and III here.

Posted by Daniel J. Solove at 09:19 AM | Comments (33) | TrackBack

Preaching to the Court House and Judging in the Temple

I have put up a couple of posts here on my on-going research on the resolution of civil disputes in ecclesiastical courts.The full version of my research is now up on SSRN for those interested. Here is the abstract:

A number of American religious denominations - Quakers, Baptists, Mormons, and others - have tried with varying degrees of success to opt out of the secular legal system, resolving civil litigation between church members in church courts. Using the story of the rise and fall of the jurisdiction of Mormon courts over ordinary civil disputes, this article provides three key insights into the interaction between law and religion in nineteenth-century America. First, it dramatically illustrates the fluidity of the boundaries between law and religion early in the century and the hardening of those boundaries by its end. The Mormon courts initially arose in a context in which the professional bar had yet to establish a monopoly over adjudication. By century's end, however, the increasing complexity of the legal environment hardened the boundaries around the legal profession's claimed monopoly over adjudication. Second, the decline of the Mormon courts shows how allegiance to the common-law courts became a prerequisite of assimilation into the American mainstream. While hostility to the secular courts had been a hallmark of a major stream of American Protestantism during the colonial period and the first decades of the Republic, by the end of the nineteenth century, Mormons' rejection of those courts marked them off as dangerous outsiders. Part of the price of their acceptance into the national mainstream was the abandonment of legal distinctiveness. Finally, the story of the Mormon courts also illustrates the importance of law for the development of religious beliefs and practices. Other scholars have documented the "public law" side of this story, showing how the federal government's effort to eradicate Mormon polygamy was central to Mormon experience in the last half of the nineteenth century and ultimately forced a revolution in Mormon beliefs and practices. The rise and fall of the Mormon court system, however, shows that private law could exercise no less of a power over the religious imagination.

Dowload it while its hot!

Posted by Nate Oman at 12:41 PM | Comments (0) | TrackBack

The Ethics of Reading and Writing

In a recent issue of the Chronicle of HIgher Education (February 8, 2008), Yale Professor of Comparative Literature, Peter Brooks, has written an interesting article on "The Ethics of Reading:, http://chronicle.com/weekly/v54/i22/22b00501.htm, in which he suggests that the now infamous Bybee Torture Memo can be blamed, at least in part, on post-modern, deconstructionist teaching and literary criticism. He talks about the implicit attributions made by novelist J.M. Coetzee's novel, Diary of a Bad Year, in which four young American Muslims are indicted for terrorism based on a vague and amateur videotape they made, which, their prosecutor suggests, proves their relationship to Al Qaeda because, as they have been taught in American literature classes, "nothing is as it seems." Brooks suggests that Coetzee blames "a set of analytical instruments which they obscurely sensed could be useful outside the classroom" for the rootless, meaningless use of words (and then their defense by twisted turns of phrases (or ordinary words if you want to count what the meaning of "is" is...) or the contrary (as every deconstructionist knows, words have meaning from what they say and what they don't say --the contradiction of meaning is what gives literary and legal deconstruction their particular power).
But is it literary deconstruction or ordinary legal interpretation that is really the culprit for facilitating the elasticiity of meaning that can justify the most horrific of acts (and more mundane ones too)?

Brooks has been "obsessing" about this question of the plurality of meanings in the so-called torture memos for years, he says. The memo cites many dictionary definitions of "torture," "severe" and "pain and suffering," as well as other important legal terms, to conclude that many practices do not meet the statutory or treaty level of unlawful torture. He calls the convoluted treatment of ordinary words in a variety of different (including medical, rather than ordinary) usages as a "kind of parody of literary interpretative deconstruction at its worst." This use of deconstructionist methods "in the wrong hands" has led to "facile untetherings of meaning."

I am intrigued by this essay because although I agree with the diagnosed pathology, I am not sure I can sign on to the attributed cause. As a new law student I remember arguing with one of my more traditional law professors (this is over 30 years ago, before the "interpretative turn" in legal analysis, though not in literary criticism), that reading a case or statute felt to me like the deconstructionist readings I was asked to do of Ezra Pound and T.S. Eliot in my college English department. I thought my skills at literary analysis would serve me well in this "war of words" and interpretation that seemed to be what legal analysis called for. Oh No, my then law professor said. Law is real, poetry is fiction --the rules of interpretation and the consequences of wrong readings are quite different (see Robert Cover, among others for similar points). Yet despite what my professor then said, I never stopped thinking that legal reading and 'riting and reasoning was as much of a game, with skill of course, of interpretation as rigorous literary analysis. I generally prefer to read poetry and novels than law, but alas, I became a lawyer (and only later someone who could teach literary criticism in both law and interdisciplinary undergraduate classes), who had to use interpretation to make words mean what I wanted them to in advocacy (in my case, mostly in civil rights and poverty law cases). So, we of the period of large scale law reform argued for "our" interpretations of Constitutional provisions, statutes, regulations and the "underlying meanings" of legislative intent or judicial interpretation. And so, sadly, what was good for the goose is now used by the gander??? (Sorry, that metaphor really doesn't work).

With our literary "penumbras and emanations" and with the elaborate and wordy standards of equal protection jurisprudence, "fundamental interests" "suspect classes" (where are these phrases written in the Constitution?), the progressive good guys have used felicitious phrases and ambiguous words for decades, if not centuries. I do not mean here to equate the tortured (yes!) use of language by the Bybee Memo authors with the creative arguments and use of words by the heroes of the good ole days (Constitutional and civil rights "victories" for social justice in the 1960's and 1970's), but I do think that whatever is wrong with multiple levels of meaning in legal memos comes from our own discipline --law and legal interpretation -- more than we can blame it on po-mo deconstructionists.

Legal reasoning in a common law system has always been about interpretation and we have always both demanded clarity of interpretation (in rules of statutory construction, for example) and also "fudged" it by using words to create the most creative of arguments to create new understandings of legal rights, duties and entitlements. Remember Charles Reich's conception of welfare as a property right, The New Property, 73 Yale L. J. 733 (1964) and Joseph Sax' public trust for environmental duties,The Public Trust Doctrine in Natural Resources Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970) (and his conception of slumlordism as a tort)? These creative uses of language are a part of our stock in trade (both practical lawyering and scholarly writing). My colleague David Cole has also argued that a little "misinterpretation" went a long way in First Amendment jurisprudence (see Agon at Agora: Creative Misreadings in the First Amendment Tradition, 95 Yale L.J. 857 (1986).

So, I don't think we can blame literary or humanist deconstruction for the bad readings or interpretations or worse, bad writings, of lawyers. Interpretation and use of words is just as much ours (lawyers) as theirs (English professors and novelists) (and thanks to James Boyd White, Richard Posner, and others we have been taking both the correspondences and differences in our disciplines seriously for decades now).

Where I do agree with Peter Brooks is that how we read, write, and interpret does matter. There is an ethics of meaning --what we say something means in law affects people's lives. And while I am an enthusiastic member of the law and literature group that believes that good reading can lead to empathic responses to our fellow human beings (thanks to Martha Nussbaum, Robin West, Toni Massaro, Susan Bandes, and others), I also believe about law, as I did about poetry so many years ago,,,, that there are "better readings" than others. Some interpretations are wrong and some are reasonable, while others are just better, or worse. In legal matters where words pack a punch (quite literarily) this is even more true than in literary readings. So, I join in the need for an "ethics of reading," but in law we also need an "ethics of writing." When we write laws and say what they mean, we are doing something different (and potentially more harmful) than what fiction writers, poets, and literary critics do.

And when we do so (write laws, with meanings and interpretations, that is), it is "our" fault, our field and our "ethics" that are on the line --not those of our college teachers or inspirational authors.

Posted by Carrie Menkel-Meadow at 07:02 PM | Comments (3) | TrackBack

Translation of Karel Čapek's Stories

Over at Fables and Understories, Andrew Malcovsky is translating some of the untranslated stories by Karel Čapek into English.

Čapek (1890-1938) was a noted Czech author of the early twentieth century. In addition to writing early science fiction (and coining the term "robot"), Čapek has written several interesting stories about the law. For example, see Capek's Tales from Two Pockets. It contains a wonderful story ("The Last Judgment") where a recently-deceased man is put on trial to see if he goes to heaven or hell -- the judges are human, and God is the witness. There's also "The Crime on the Farm," "An Ordinary Murder," "The Juror," and many others that explore crime, law, and justice.

Hat tip: BoingBoing

Posted by Daniel J. Solove at 09:24 PM | Comments (0) | TrackBack

Solum on Interdisciplinary Legal Studies

Over at Legal Theory Blog, Professor Lawrence Solum has a terrific post on interdisciplinary legal studies. He is responding to the discussion in the blogosphere sparked by Professor Brian Tamanaha's provocative post, to which I have responded (here and here). Several others have insightful commentary in the debate, such as Professor Ethan Leib and Professor Josh Wright. Belle Lettre collects links here and Professor Paul Caron collects more links here.

Larry Solum's post is terrific (caveat: it's also quite long), and it is well worth a read.

Posted by Daniel J. Solove at 04:23 PM | Comments (0) | TrackBack

Interdisciplinary Scholarship and the Cost of Legal Education

The other day, I responded to a post by Brian Tamanaha regarding interdisciplinary legal study at non-elite law schools. Brian suggested that non-elite schools reconsider whether they ought to pursue interdisciplinary legal scholarship, and I argued that they should.

In a follow-up post, Brian has clarified his argument:

My point was not to be anti-intellectual but to get us to think about a growing crisis in non-elite law schools.

Signs of the crisis are evident in many recent reports. The basic elements are this: tuition at private law schools ranges around $35,000-$40,000 per year, doubling in the past decade and still rising; pay for law jobs outside corporate law has stagnated, many in the $40,000-$50,000 range; the overwhelming majority of graduates from non-elite law schools will not get corporate law jobs, and will be saddled with a huge debt.

Brian suggests that the high cost of law school "is also a problem for society because the lower middle class and poor cannot obtain lawyers--it just doesn't pay enough." He concludes:

It's time we start thinking more seriously about whether non-elite law schools would be better served, and would better serve their students, if they develop a different model for training people who want to be lawyers. Otherwise the crisis might be one that non-elite law schools bring upon themselves, as more and more prospective law students decide that the cost of law school is not worth the return.

Brian points to an article about a Boston University Law School graduate who decided after graduating from law school to take a non-legal job and remains saddled with massive debts.

I now understand Brian's point to be more about the high cost of law school than about interdisciplinary studies. In fact, I see his argument as almost entirely independent of the question of interdisciplinary studies.

I wonder how much costs could be cut at non-elite schools by moving away from interdisciplinary studies. Why would this be a significant way to cut costs? I'm no expert on the economics of running a law school, but I don't think that interdisciplinary studies is the primary problem. Brian's argument could be applied to scholarship more generally, not just interdisciplinary scholarship. Costs at law schools might be cut more if some non-elite schools were to hire fewer professors and make them teach more classes and do less (or no) scholarship. These schools could require professors to teach many more classes than the norm -- maybe 3, 4, or even 5 classes per semester. As with the catch phrase in this season's The Wire, these schools could "do more with less."

If I understand Brian's argument, it is that there should be cheap law schools for students who have no desire to go to big law firms or otherwise pursue highly-lucrative legal jobs. So there should be a group of law schools that are designed to be "economy class" -- offer an inexpensive legal education for students who desire it. I have no objection to schools that decide to recast themselves in this model or to schools that are created based on this model. This would be the legal equivalent of the 'teaching university."

But I see this as a very different claim than the argument that non-elite law schools should move away from interdisciplinary studies. That some schools should have professors teach more and write less is a different issue than what the professors would teach -- they could teach interdisciplinary studies, for example, or they could teach only doctrines and practice skills, or something of both.

I personally believe that having professors who produce scholarship is good for a law school. But this need not be a requirement for all law schools. If students want to a cheaper education without scholarship-producing professors, then I don't see why there shouldn't be some options for them.

Posted by Daniel J. Solove at 03:17 PM | Comments (4) | TrackBack

Is Interdisciplinary Legal Study a Luxury?

Over at Balkinization, Professor Brian Tamanaha (St. John's School of Law) argues that most law schools should abandon their vigorous pursuit of interdisciplinary studies in law:

[P]erhaps detailed knowledge of the social sciences—anything beyond rudimentary information every educated person should possess—is irrelevant to the practice of law.

It seems evident that one can be an excellent lawyer without knowing any of this interdisciplinary stuff, while it is not obvious that learning this will make a person a better lawyer. A stronger case can be made that this information might improve the performance of judges, but a more efficient way to deliver this benefit is to set up classes (in economics, statistics, etc.) for sitting judges—programs which now exist.

Brian contends that non-elite schools should reconsider whether they should emulate top-ranked law schools in focusing heavily on the interdisciplinary study of law:

In the non-elite law school universe--with schools almost entirely dependent upon tuition, with a majority of graduates who do not get corporate law jobs and only rarely become law professors--the interdisciplinary movement cannot be so easily justified.

Let me just give three reasons why it might be a bad idea for non-elite law schools. First and foremost, as argued above, there is no evidence that it will make their students better lawyers. Second, it costs a lot of money to go interdisciplinary, and (because non-elite schools are tuition driven) this money will come out of the pockets of the students. Third, their education might suffer if their faculties emulate the elite law school trend toward hiring JD/PhDs with little or no practice experience (assuming a person with some experience in the practice of law has a bit more insight to impart to students about how to be good lawyers). . . .

The bottom line of this post: the notion that interdisciplinary studies within law schools promises to improve the practice of law is an old idea backed up by little evidence. Non-elite law schools might not be serving their students well if they get caught up in this trend.

I strongly disagree. Brian's post seems to be informed by a common set of assumptions about legal education and practice that I think are false. These assumptions involve a particular vision of what tools are necessary for law practice and of what good lawyering is all about, as well as a vision of what role legal education should play in preparing students for the practice of law.

With regard to the vision of law practice, I think that it is a common assumption that it involves learning doctrines, rules, case holdings, drafting skills, etc. While this is part of law practice, the practice of law is tremendously varied. Some students go on to become judges and policymakers. Many will work for government, for think tanks, for public interest organizations. Many might work in house at companies, where they might also be making policy. For example, one of the most rapidly growing positions is that of privacy officer -- most companies have numerous people devoted to understanding privacy law and making corporate policy with regard to privacy. In any policymaking position, knowledge of existing legal doctrine is just one part of the job. One also needs to be able to see the big picture, to make wise policy choices beyond merely complying with existing law.

Moreover, the practice of law involves many dimensions. Some students will become trial lawyers, and interdisciplinary knowledge might enhance their ability to make eloquent arguments before the jury. Literature, psychology, rhetoric, and other fields are very important for a successful career as a trial lawyer. One of the difficulties in justifying interdisciplinary legal studies is that often the materials read or studied don't have a direct bearing on practice. So if one reads Melville or Shakespeare, or reads works of behavioral economics, psychology, or sociology, the benefit isn't in terms of having authorities that one can cite in a brief or recite before a jury. But the exposure to these ideas, the process of reading and thinking about these works enhances one's general store of knowledge, one's understanding of life, and so on. This indirectly enhances one's ability to practice law. The brilliant funeral speech of Marc Antony in Shakespeare's Julius Ceasar is a wonderful display of rhetoric, and much can be learned from comparing it with Brutus's speech. Behavioral economics, psychology, and cognitive science -- the work of Daniel Kahneman and Amos Tversky, for example -- reveals how the framing of choices can have dramatic effects on what people will choose.

Brain notes that "no convincing evidence has been provided to demonstrate that 'interdisciplinary studies' will help one whit in the training or performance of lawyers." But is there a way to produce the evidence he desires? Is there a way to prove that learning history, literature, philosophy, psychology, economics, and other humanities have any value for most careers? What would be the metric by which this could be measured?

Certainly knowledge of rules and doctrine is important for law practice. But in many cases, the doctrine is unclear or is subject to interpretation and debate. It is the ability to make persuasive arguments about the doctrine that separates the great lawyers from the mundane. A good legal argument often touches upon policy implications; it examines the downstream consequences of rules, slippery slope problems, etc. A good lawyer might realize that there is a body of sociological, empirical, or psychological knowledge that supports a particular interpretation of the law. More indirectly, a lawyer steeped in a broad humanistic understanding of the law might think more creatively and might see issues and arguments that others without such an understanding would not.

Moreover, the study of interdisciplinary knowledge can have a broader indirect effect on the law. For example, the legal realists had a tremendous influence on legal practice. They changed the way many people thought about the law. They didn't do so directly. So lawyers and judges might not have been readily citing Karl Llewellyn or others as authorities for various legal propositions, but their thought did influence the way that legal arguments are made, the way that lawyers and judges understand the task of applying and interpreting the law. Although the law still struggles to integrate interdisciplinary knowledge in practice, I don't think that the project begun by the legal realists is a failure.

So I think that it is a deeply flawed assumption to see the practice of law as the mere mundane application of rules and doctrines. For the creative lawyer, steeped in literature and humanities, in social science, with an understanding of policy and a larg