the Law, the Universe, and Everything 

Search

Concurring Opinions is a
general-interest legal blog
operated by Concurring
Opinions LLC, a Pennsylvania
Limited Liability Corporation.

jr_12809_9780195367195_bnr.JPG

ad-logo5.jpg

Our Podcast

Subscribe to Law Talk

Law-Rev-Forum-2.jpg

law-rev-contents2.jpg

Law-Prof-Blog-Census.jpg

Categories

Accounting
Administrative Announcements
Administrative Law
Admiralty
Advertising
Agricultural Law
Anonymity
Antitrust
Architecture
Articles and Books
Bankruptcy
Behavioral Law and Economics
Bioethics
Blogging
Book Reviews
Bright Ideas
Capital Punishment
Civil Procedure
Civil Rights
Conferences
Constitutional Law
Consumer Protection Law
Contract Law & Beyond
Corporate Finance
Corporate Law
Criminal Law
Criminal Procedure
Culture
Current Events
Cyberlaw
DRM
Economic Analysis of Law
Education
Empirical Analysis of Law
Employment Law
Environmental Law
Estates and Trusts
Evidence Law
Family Law
Feminism and Gender
First Amendment
Food
Google & Search Engines
Government Secrecy
Health Law
History of Law
Humor
Immigration
Insurance Law
Intellectual Property
International & Comparative Law
Interviews
Jurisprudence
Law and Humanities
Law and Inequality
Law and Psychology
Law Practice
Law Professor Blogger Census
Law Rev (Boston College)
Law Rev (Boston University)
Law Rev (California)
Law Rev (Chicago)
Law Rev (Columbia)
Law Rev (Cornell)
Law Rev (Duke)
Law Rev (Emory)
Law Rev (Fordham)
Law Rev (Georgetown)
Law Rev (GW)
Law Rev (Harvard)
Law Rev (Illinois)
Law Rev (Indiana)
Law Rev (Iowa)
Law Rev (Michigan)
Law Rev (Minnesota)
Law Rev (Northwestern)
Law Rev (Notre Dame)
Law Rev (NYU)
Law Rev (Penn)
Law Rev (S Cal)
Law Rev (Stanford)
Law Rev (Texas)
Law Rev (UCLA)
Law Rev (Vanderbilt)
Law Rev (Virginia)
Law Rev (Wash U)
Law Rev (Wm & Mary)
Law Rev (Yale)
Law Rev Contents
Law Rev Forum
Law School
Law School (Hiring & Laterals)
Law School (Law Reviews)
Law School (Rankings)
Law School (Scholarship)
Law School (Teaching)
Law Student Discussions
Law Talk
Legal Ethics
Legal Theory
Media Law
Movies & Television
Philosophy of Social Science
Politics
Privacy
Privacy (Consumer Privacy)
Privacy (Electronic Surveillance)
Privacy (Gossip & Shaming)
Privacy (ID Theft)
Privacy (Law Enforcement)
Privacy (Medical)
Privacy (National Security)
Property Law
Race
Religion
Reparations
Science Fiction
Second Amendment
Securities
Securities Regulation
Social Network Websites
Sociology of Law
Supreme Court
Tax
Teaching
Technology
Tort Law
Web 2.0
Weird
Wiki
Wills, Trusts, and Estates

Archives

March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006
April 2006
March 2006
February 2006
January 2006
December 2005
November 2005
October 2005
August 2005
July 2005
June 2005
May 2005

 


February 23, 2009

Layoffs, Layoffs Everywhere

posted by Jaya Ramji-Nogales

Though news of law firm layoffs, not to mention offer rescission and complete dissolution, has been brewing for some time now, government and non-profit jobs, though harder to come by, have seemed relatively more secure. Not so, as I learned from a former colleague at the ACLU last month, where Madoff-related investments forced layoffs of ten percent of the workforce, including several staff attorneys. As a former staff attorney at the ACLU, those positions appeared to be some of the most secure in the legal profession -- yours to keep for as many years as you wanted, until poof! they disappeared. And just last week, a former student of mine reported that the Philadelphia District Attorney's Office rescinded the thirteen offers it made this year (in contrast to the 25 it extends in a normal year) to third-year law students. As another student on the public interest job hunt noted today, "I thought that was why I became a professional!" Indeed -- that was the deal we all signed up for; we'd put our noses to the books for three long years, incurring piles of debt, but we'd still have jobs in an economic downturn. Wouldn't we? While job losses may be more severe outside the legal profession, a law degree is certainly no panacea, and some may begin to wonder exactly what is the value added from three years of expensive education. At the moment, I'm not sure I have an answer for my talented and hardworking students struggling to find permanent employment after graduation.

Posted by Jaya_Ramji-Nogales at 09:31 PM | Comments (0) | TrackBack

October 02, 2008

Law Talk: Judith Maute on Contracts, Scholarship, and Movie Making

posted by Nate Oman

jmaute.jpgIt's been a while since I have been able to put together a Law Talk episode, but I still hope to keep this podcast going with two new episodes. The first new episode is simply a collection of the Battlestar Galactica interviews conducted by Dan, Dave, and Deven a couple of months ago. Enjoy all you affianados of law and science fiction!

My second new episode is an interview with Professor Judith Maute of the University of Oklahoma. As far as I know, Professor Maute has the distinction of being the only law professor who has ever had one of her law review articles turned into a movie. In this case, the movie is the recently released documentary "The Ballad of Willie and Lucille," which looks at the iconic contracts case of Peevyhouse v. Garland Coal & Mining Co. The film was recently given the "Chris Award" by the Columbus Film Fesitival, and in our interview Professor Maute talks about teaching, historical research, movie making, judicial bribery, and the importance of a lawyer's appreciation for facts. Enjoy!

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by oman at 04:48 PM | Comments (0) | TrackBack

July 08, 2008

Roars on Auditor Liability

posted by Lawrence Cunningham

Amid revolutionary proposals to renovate US financial regulation, auditing firms continue to push for caps on their liability for bothced audits. In a report to the Treasury Department’s Committee on the Auditing Profession, the profession's lobbying affiliate, Center for Audit Quality, collates pending cases against large firms to dramatize their campaign.US treasury_department_4.jpg

They report 90 pending cases asserting aggregate damages exceeding $140 billion, with a third of the cases seeking more than $1 billion apiece and 7 alleging more than $10 billion. The firms say these claims, altogether, support their view that their liability exposure is unfair to them and dangerous for the financial system. The only solution, they urge, is having Congress set statutory dollar caps on claims against them, along with exclusive federal jurisdiction over these cases using a light standard of liability, scienter instead of negligence.

The profession is making its pitch in comment letters on the Advisory Committee’s draft reports on the state of the auditing profession. The reports include extensive recommendations for reform, including a shift to exclusive federal jurisdiction for these claims. They stop way short of any discussion of capping auditor liability by legislative fiat. The firms cite their trade group’s data to support their plea, saying that “the threat of catastrophic litigation risks is real” and “unique” to the auditing profession and requires protective federal legislation.

True, auditors do face liability that sometimes can be measured according to the decline of a firm client’s market capitalization and that decline is beyond the firm’s control. That could kill a firm and disrupt global financial markets. And, often, the net social loss from audit failure may be relatively low, at least when losses to one group of shareholders are offset by gains to another group of shareholders.

But the audit is fully within the firm’s control and there are losses to one group of shareholders that an effective audit would prevent. Further, although the profession’s data may look threatening at first glance, all the figures are worst-case scenarios. Also, the data look at what auditors stand to lose in litigation rather than what they gained or stood to gain from rendering ineffective audits, whether negligently or otherwise.

This debate can appear to be an either-or proposition, to cap or not to cap, but is there any other approach to this nettlesome problem? I propose a simpler, market-based idea that has commanded considerable interest among market participants but to which the firms have given scant public attention.

The firms would issue bonds in debt markets to provide a backstop against the big judgment. Paying a high interest rate to reflect risk, the bonds would be repaid at maturity if no big claims arose but principal would be released to cover massive judgments if they did. This would protect share owners against losses from incorrect accounting without bankrupting an audit firm.

Although not without limitations (explored by Kevin LaCroix, an expert in the field), these bonds should appeal to investors and regulators. Similar bonds have been used since the mid-1990s to provide funding against catastrophic hazards of natural disasters, like hurricanes and floods. Buyers of such “cat bonds” enjoy an investment vehicle that adds portfolio diversification and, with a high interest rate, a good risk-adjusted return. No regulatory approval is needed and no legislative hunches or political jockeying occurs.

Insurers of audit firms keep the business they now have writing policies, as these bonds would cover losses that current coverage does not reach. Investment banks would help design and sell the bonds and assemble and analyze information about risk.

Benefits are considerable. Risks of bankrupting a firm are reduced dramatically. The political hot potato of capping auditor liability goes away. Investors would begin to see auditors as partners in promoting reliable accounting rather than as deep pocket guarantors against unreliable reporting. Incentives arise to encourage capital market monitoring of auditors. The bonds don’t attract suits against auditors because they fund only catastrophic losses, upwards of $500 million.

Cat bonds are a practical, cost-effective solution to the risk that another large auditing firm could disappear and leave few ways to supply this important function. Certainly, to take seriously any proposal to cap liability, or even move to exclusive federal jurisdiction and standards, Congress and the public first should ask about this idea.

After all, at present, proponents of caps and federal standards, especially audit firms, have incentives not only to ignore the gains to auditors from acquiescent auditing, but to overstate liability risks. With cat bonds, those same people would have an incentive to understate risks when selling the bonds to capital market investors. Making cat bonds a serious point of public policy debate would help reveal the true stakes.

Posted by Lawrence_Cunningham at 09:24 AM | Comments (4) | TrackBack

April 01, 2008

Law Talk: A Roundtable on Justice and Insturmentalism in Private Law

posted by Nate Oman

RoundTableKnights.jpgOver the weekend, the Association for the Study of Law, Culture, and the Humanities held their annual conference at Boalt Hall. This podcast episode is a recording of a roundtable discussion on justice and insturmentalism in private law, which was organized for the conference by Jeff Lipshaw. The participants include Pete Alces (William & Mary), Robin Kar (Loyola LA), Alan Calnan (Southwestern), and Nate Oman (that's me). The discussion focuses on the philosophy of tort law and contract law, with Pete sounding a skeptical note using evolutionary biology. Enjoy!

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by oman at 11:01 AM | Comments (0) | TrackBack

March 02, 2008

Battlestar Galactica Interview Transcript (Part I)

posted by Daniel J. Solove

BSG-logo6.jpg

BSG-starbuck.jpgWe are very pleased to be able to present a transcript of our interview with Ron Moore and David Eick, the creators, producers, and writers of the TV show Battlestar Galactica. Joe Beaudoin, Jr., the project leader of the Battlestar Wiki, transcribed the interview for us. We edited the transcript, but the bulk of the work was done by Joe. The transcript is also posted at the Battlestar Wiki, which has a ton of great information for fans of the show. In editing the transcript, we took the liberty of cleaning up grammatical errors and eliminating "ums" and other distractions in order to make it more readable.

In this interview, we explore the legal, political, economic, and social ideas raised by the show. If you prefer to hear to the interview, click here to listen to the audio files.

Below is the introduction to the interview and the transcript for Part I, which explores the legal system, morality, and torture. I couldn't fit the entire transcript into one post, so Parts II and III are contained in another post. Part II examines politics and commerce. Part III explores the cylons.

In the interview, 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 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.

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.

BSG-pic1.jpgBattlestar Galactica 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. The show is heavily influenced by modern events, especially terrorism, war, and torture.

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.

Moore-Ron3.jpgRon 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.

Eick-David2.jpgDavid 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.

BSG-1.jpg BSG-20.jpg BSG-25.jpg BSG-3.jpg

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

BST-title1a.jpg

PART I-A: LEGAL SYSTEMS

Daniel Solove: Greetings, this is Professor Daniel Solove of the blog Concurring Opinions with professors David Hoffman and Deven Desai.

We're delighted to have the opportunity to speak with Ron Moore and David Eick, the creators of the terrific television show, "Battlestar Galactica", on the SciFi network. "Battlestar Galactica" chronicles a small group of humans that survived the mass destruction of their society by a group of machines they created. The machines are known as the Cylons.

As "Battlestar" enters its fourth and final season, it enjoys tremendous stature. The show has been one of the most critically acclaimed TV shows. It raises many fascinating legal, political, economic and social issues. And we're here right now with Ron Moore and David Eick, the two writers, co-creators, producers of the show, to talk about some of the issues with them.

Ron and David, thanks so much for being here with us today.

Ron Moore: Well, thank you for having us. It's a pleasure to be here.

David Eick: Absolutely.

Deven Desai: Fantastic! So this is Deven Desai, and I wanted to kick off with a somewhat general framing question. At a very simple level--but from the mental level -- I’m trying to get at exactly what role the law plays in the show. And I think the real question there is: Is it fair to say that "Battlestar" examines what happens to a social and legal system under extreme stress, and maybe even questions whether there is law at all in those circumstances?

Moore: Yeah, I think that is a fair way to put it. I think from the very beginning, one of the things we wanted to examine in the show is what would happen in a circumstance where civilization as we know it was literally wiped out, and you and a bunch of other survivors would gather together. What elements of the existing society would you choose to continue? What are the things that you would leave behind? What are the things you would try to retain?

It's called "Battlestar Galactica," so it has a very strong military component to it, but I felt very strongly from the get-go that there are other remnants of the civilization here, and [we needed to know] how they organize themselves, what kind of government they have. What the role of law was in that circumstance [post-apocalypse] was one of the key ideas we wanted to start talking about right from the mini-series.

In fact, in the mini-series you'll see that one of the first questions that comes up is the line of succession for the presidency -- what role the president has in that circumstance versus the military. By the end of the pilot, they settled into a bit of compromise between Laura [Roslin] and [Commander William] Adama.

BSG-roslin1.jpg
President Laura Roslin

Eick: Right. It is also important to point out that [the military vs. government issue was] one of the things, I thought, Ron's script for the pilot (the mini-series) [addressed] so well. In fact, [it] really intuitively circumvented some of the things that befall a lot of so-called genre sci-fi pieces when they try to examine or postulate legal precedents or refer to laws.

There was a show called "Century City" on a while ago which was a law show about the future. And I was friendly with some of the executives who made it. Not to pick on "Century City", but I remember saying at the time: “You know, guys, the joy of a law show -- I know a lot of people who watch law shows (I don't) -- and not that "Battlestar" is -- but the joy of these [shows] is to match your wits against the characters in the piece.” [The joy of law shows is] to be able to go to yourself, "No, no! Brown vs. Board of Education you idiot, or whatever... [It is] to be able to have a common frame of reference. And the thing that I thought Ron's script did so well was to essentially say their world is our world. And we're not literal about that necessarily, but what I think we try to do is avoid the trappings of contrivance and deus ex machina to justify a story point when it hits against the reality of: "No, in our culture that wouldn't be allowed, we have a law about those kinds of things." We have things like freedom of speech and freedom of expression, and there are certain basics of the show that are essentially just transplants [from our society] that allow us to play fair with the storytelling and with the audience whenever a story point comes up that involves the law or the issue of morality or ethics.

Desai: Right. And I think, if I hear you right, that explains why there are remnants of the older legal system, but there are still -- because of the stress -- the military tribunals, there are criminal trials and civil actions. And it seems like lawyers lurk behind some of this. If I remember correctly, Adama's father [Joe Adama] is a defense attorney, and then you later have Romo Lampkin. And I'm wondering, how do the lawyers and these ideals play out with those characters? And are you exploring what pieces of the legal culture and system you keep or don't keep in developing a society that's perhaps reinventing itself?

Moore: Well, for Adama, we gave him the backstory that his father was a defense attorney who specialized in civil liberties, primarily because I wanted to say that about the character of Adama. Typically the military commander in a fictional world comes from a long line of military commanders, going back to the [American] Revolution or something, and I wanted to set him apart from that tradition. This is a man that believes in a lot of the ideals that the uniform stands for, and [he] approaches it from a slightly different point of view [than Laura Roslin], and I wanted to set him up in a different way than Laura. Laura came to this position through a different process, and her ideas of the law and how she would wield authority would come from a very different place as a character.

I think that the lawyers in the show, [such as] Romo Lampkin [whom] we've used, and the lawyers, laws, and things [we allude to], are in service of the idea: Okay, this society is destroyed, [and] it's very important for society to have a rule of law, to have a system that governs people lives -- even in this circumstance -- that they can rely on. There are ideas of justice and fairness within the society, but there's still picking and choosing which laws they're going to adhere to. We had a line in an episode that actually got cut: there was a press conference early on in season one where Laura's assistant, Billy [Keikeya], was fielding various questions from the press about all kinds of things, and someone actually asked about income taxes and whether they were going to be filing returns.

We played it as a joke -- you know, we'll get to that later, but it was an interesting notion because it was symbolic of the [idea] that if we're hanging on to this form of Republican government, and we're not trying to hang on to all the things we used to have, how far does that go? How far is the point where it becomes absurd, given the circumstances that they were in? But the notion was that we're going to try to hold on to as much of this democratic society as we can, that this was one of the founding beliefs of this culture. [It was] really, really important to them -- to hold on to this form of government and hold on to as many of the forms and rituals (and symbols of it) as possible because it defined them as a people. It defined them in terms of how they chose to view themselves.

BSG-trial2.jpg
The trial of Gaius Baltar

Desai: So as a follow up then, when you talk about how they choose to view themselves, it seems like there's a real contrast in terms of evolution of society. In [the episode] "Litmus," you have these early almost Crucible-like interrogation boards or inquiry boards, and later on you get to [Gaius] Baltar's trial and the acquittal, which reminded some of us of South Africa's truth and reconciliation commission -- where you examine something without prosecuting it. Obviously, as you develop stories, sometimes things take on their own life, but was there an evolving plan for these sorts of crucial moments of the story? Were the characters getting to these, "How are we really going to do it when we're up against the wall here?" [moments]?

Moore: Yes. There was a certain evolution in our thinking of the culture within the show, and I think it just grows out of the fact that, in season one, soon after the apocalypse and the destruction of their world, it's sort of like everything is up for grabs at that point. Everything is possible. Tribunals can go far astray. Laura can pretty much rule by dictate.

A lot of it has to do with observing of our society in the post-9/11 aftermath, and how everyone was willing to do a lot of things that the government asked them to do in those early days without real question. So we wanted to reflect that into the show, but as time went on you start to settle in and say "Ok we're not going to do that anymore" and "Wait a minute, maybe this was too far" and "Let's really re-gather and decide what the rules of the society are." And that happened in the writer's room, as well as on the show. [When] we're [no longer] a few months after the attack [and] a few years have gone by, and here's a former president of the Colonies [Baltar] up on treasonable charges, [we] feel that this has to be examined in a different context than the earlier sort of tribunal-type formats would have permitted.

Eick: It's funny you know, and this sounds to be more political than it is, but [in] the episode "Pegasus" in season two, a long lost ship [found the] small fleet and [was] helmed by an admiral [Helena Cain] who outranked Adama and who, as the story wove on, was a war criminal, basically, and was someone [to whom] human rights were utterly meaningless in the face of war and [who just] did what [she thought] needed to be done. And I felt like that epitomized a lot of what was going on with the culture [in America post 9-11]. There was a certain, "Whatcha gonna do about it?" that seemed to be in the culture. It isn't so much to say, “Well gee, look at what our real life administration did” as much as it was to say, "What could it do? Where would the line be drawn? Would one be drawn?” There was this feeling of recklessness in the air [post 9-11], and I do think that it served [to some degree as a starting point]. [But] we said on a number of occasions that we don't rip headlines to serve as starting points for storytelling. We're not "Law & Order." We're not looking to do literal metaphors necessarily, and yet it was impossible to dodge the sense of what was creeping into our culture.

So [let’s] get back to your question, “Where did you decide to adhere to the strictures of our modern, contemporary legal system? Where did you decide to deviate?” It was more about: What would you buy? What feels real? What feels like: "Gosh, that kind of feels contemporary, that kind of feels resonant with what's happening today"? I like a show where you're making it up as you go, and you’re able to pull solutions out of your hat whenever you want because you made the rules up anyway. [But] this [attempt to be contemporary and resonant with current events], I think, maintained enough of a sense of reality and a connection to our culture that we didn't feel allowed to do that. That there were repercussions, even in a situation like the tribunal, where the nature of the discussion was: "Well, hold on a second. You can't do that." And a part of you goes, "Well, why not? We've already done this!" And that seemed to reflect what was going on in the culture anyway. So in that way it felt real.

BSG-cain2.jpg
Admiral Cain aboard the Pegasus

BST-title1b.jpg

PART I-B: TORTURE, NECESSITY, AND MORALITY

Solove: I'd like to explore some of the issues involving the show's depiction of torture, which occurred at several points during the show. It's obviously a huge area up for debate after 9/11. How did the United States experience of torture affect the way that you chose to depict it in the show?

Moore: It's interesting [because of] the fact that there was actually a question suddenly, which in the first time of my experience in this country was actually a subject of discussion. There was a notion that [torture] was permissible under some circumstances but not others, or at least we should have a public debate about it. And that alone just felt like . . . well, okay then, just by having it in our show we would touch into what's going on in America today. I think that given the circumstances of where they are, it was completely believable that people in different circumstances would choose to use aggressive, physical coercion on their enemies.

[This is] especially [true] in the circumstance [in the show] where we have the distinction [between humans and cylons.] [In the show,] Kara ["Starbuck" Thrace] and the rest of the Colonial officers did not view the Cylons as legitimate people. They were not accepted as [humans] -- they were not human, and they did not have the rights of humans, and they would not be accepted as anything other than machines. So when we approached the first episode that really dealt with this, "Flesh and Bone," one of the key concepts was: ”Well, it's a machine.” Is there anything morally wrong about beating a machine? And torturing machines? And making a machine go through all kinds gyrations? It's a thing, and if this thing in front of you screams and cries and bleeds, can you ignore that? Can you as a human being distance yourself from the visual, from the empathetic impulse, and say, "Oh, I have to keep reminding myself this thing is not real. It's just a really good simulacrum. It's a really good software program. It's designed to fool me into believing it's human"?

And we wanted to play with that [issue] in the show, and that no matter how much Kara told herself that, how much she told that to Leoben [Conoy], she couldn't help but have a human connection. She couldn't help but be affected by what she was doing within the show. I think when we approached that episode we were a little bit more interested in the dynamic between interrogator and subject -- how does the emotional response reverberate back and forth? -- than we were really invested at that point in legal questions. We took as a given that Kara could walk into that room and do whatever she felt she had to do. She could have probably chopped his arms off if she felt like she wanted to, because Adama essentially told her at the top of the show, "It's a machine, don't forget that. Don't get involved." But we were interested in this more character-oriented idea.

BSG-torture1.jpg
Kara tortures Leoben in the Season 1 episode "Flesh and Bone"

Eick: That episode remains somewhat notorious in that it probably represented the most extreme period of tension and disagreement between ourselves and the network. I know those stories are legion, and show people like to talk about how they weathered the storms, and put up a good fight, and saved the show from the cretins who've gotten their fingers. That has not been the case with this show at all. We've actually enjoyed a great deal of support and a lot of courageous spiritedness and boldness from this network.

However, in that particular case, there were drafts of the script that were pretty extreme in terms of what Kara was going to do to Leoben, and they were emblematic of what was going on at Guantanamo and places like that, and the connection to our own culture was probably a bit more literal and precise and less metaphorical than it had been [in other episodes of the show]. But as a microcosm, in and of itself, it serves as an example of what Ron was just talking about -- which is that we would find ourselves saying things like, "But it’s not a person, why are you telling us to cut the scene where she gouges his eyeballs out?! No, there wasn't that scene, but why are you giving us grief about this?” In a way, it became our argument because we were trying to take something real and force the audience to have the same trouble with it that the network was having. Anyway, it was just an interesting microcosm of everything you were saying.

Solove: I heard that the show's ethos is encapsulated by the line, "It's not enough to survive, one must be worthy of survival." As you both talk about the depiction of torture and how extreme it is, there are views such as, "Look it's just robots." But there are also times when [humans such as] Gaius Baltar get tortured [in Season 3's "Taking a Break From All Your Worries"]. To what extent did you want to portray [torture] in a way that got so extreme that in fact it earned the audience's sympathy, or got the audience to say, "Wait a second. This isn't effective," or "It is effective"? To what extent did you depict [torture] to try to illustrate certain points about torture, and its effectiveness or non-effectiveness, or the justifications for it, or the arguments against it?

Moore: I think our goal was to stay away from that, actually. We were sort of at pains in the story discussion room and at the script phase to not send [any particular] message [about torture]. We were trying not to say, "Hey, guess what, torture's bad!" or to go through the rationalizations of why it should be employed in certain circumstances. We really just wanted to put the audience in the room and make them really uncomfortable. We really wanted them to struggle (we like to do this a lot in the show) -- we wanted them to struggle with [the questions]: "Who am I supposed to be rooting for in this circumstance? Whose side am I on? I thought I was on her [Kara’s] side because [Leoben has] said he's got a nuke somewhere in the Fleet, and that's a pretty scary thing, and Kara, you better do what you’ve got to do to get the information out of him. . . . Okay, now I'm sitting here, and now I have to watch him be smacked around, blood flowing from his mouth, and watch him be, in essence, water boarded. And I'm starting to really feel uncomfortable with that. And I'm starting to feel like she's going too far and . . . wait a minute . . . whose side am I on?"

We just wanted to ask the questions. We really just wanted the audience to have to get in that room and really search their own souls for how they felt about this, and what's right and what's wrong. [We wanted] to just let it live in the ambiguity of the circumstance. That's something that television generally shies away from. Ambiguity is not something networks like. They like an answer. Give the audience an answer. Tell them who's the good guy, who's the bad guy. Let them root for justice and boo at evil.

Our show, I think, is at its best when you're just not sure, [when] you're just uncomfortable because you can't decide -- should Gaius Baltar get off the hook or not? -- when you’re struggling with these moral dilemmas. I don't think we [as writers] need to have the ego that says, "Hey, guess what, I've got the answer to torture in 44 minutes or less, and here it is." It was just like, "Okay, this happens, this is a real world circumstance. Here's the classic ticking-bomb scenario, and here's the guy [Leoben] who says he knows where it is. What are you going to do?" And here it happens, and he starts talking, and he [Leoben] gets into her [Kara’s] head. It just becomes this very complicated wash of emotions.

Solove: It's interesting too in that you, to some extent, avoided the issues that have plagued the show "24." There was a New York Times story about the politics of depicting torture in "24" and criticizing the show for the way it depicted torture. To what extent do you feel that you managed to survive that kind of criticism? Also, more broadly, to what extent do you feel pressure at all from the Left, the Right, or others in terms of how you depict certain hot topics such as torture?

Eick: You know, I'll just say briefly, that's the great thing about science fiction. Exactly that point. I don't watch "24," I don't know what their issues were, what kind of trouble they got into, but I would reckon that we'd probably be able to get away with exactly what they tried to do, and got in trouble for, in a different way because of the nature of sci-fi, and the fact that it tends to not, frankly, be taken as seriously. People can look down their nose at it, or say, "That's just a fantasy" or "That's just an escapist piece" -- with the exception, of course, of the people who actually watch shows like "Battlestar" and they realize that's not the intent. But I do think the genre has always served as an excuse or justification or a metaphorical way to talk about the issues of the day and what's happening in the culture without necessarily having to be subjected to the same kind of scrutiny [that is directed at] something that's doing it in a literal way.

Moore: One of the hallmarks of our success is that we get glowing reviews from The National Review [and also] from Salon. I think that just says a lot. We're not trying to play everything down the middle, where it's just neutral. There are ideas and messages and themes strewn throughout the show, but I think we always try to make it really ambiguous, and let the audience take away from it what they will. Some people will see exactly what they want to see in the given circumstances, and I'm sure there are people on the Right who watched the torture scenes and felt like, "Well, absolutely! She's justified in doing whatever she's got to do to get that information out of that guy." And there are probably people who on the Left felt like it was appalling and sympathized completely with him, and there were probably people on both sides who had their views challenged and felt vaguely uncomfortable about holding the position that they started with.

Solove: It's a great testament to the show it does have fans both on the Left and the Right, especially when it tackles issues that have been hot button issues on both sides where there's so little agreement. So I think that's quite a testament to the show.

I'd like to shift a little bit to a related issue, which is the issue of necessity and morality. Throughout the show there seems to be a tension between instrumental necessity and moral principle, and we see characters doing things that they often find contrary to their own morality and principles. Examples would be Roslin trying to rig an election, people turning into terrorists to fight the Cylons [on New Caprica], the destruction of a ship [the Olympic Carrier] in "33" with over a thousand people on it. To what extent do you think these decisions have effects on the people that make them and on the human society? And how have you've chosen to depict those effects?

Moore: I always think it's interesting when people run up against practical circumstances [and are forced] to try to go against things they've believed in their whole lives, and they find themselves doing that which they abhor, or that which they've sworn that they would never have done. I think it affects them in profound ways, and on some level it just brings in simple guilt and brings in a lot of self-loathing about certain actions, but it also makes them strive to over-compensate in some ways and to be more heroic next time.

I think the show is always interested in these barriers that people set up. "These are the bounds I will not step over. This is what defines me as a human being, and I'm going to hold that banner up high, no matter what, and I’m never stepping over this line . . . until I've got to step over this line." That's just human. To me, it's always what people perceive as human failings. In a lot of ways, our defeats and our failures tell us more about ourselves as human beings than our victories do.

BSG-adama2.jpgSolove: One thing the show often does is present us with situations where the military leaders have to act and make some very tough and sometimes very ugly decisions. I think the show is about these hard choices that people have to make. On the one hand, the show demonstrates the importance of deference to the military leaders. But on the other hand, there are also instances where there are objections to [the military leaders’] decisions. Lee Adama often engages in acts of civil disobedience, and we also have Colonel [Saul] Tigh's rather unwise military decisions (as compared to [Commander] Adama's mostly wise decisions). What do you think the appropriate level of deference to afford military judgments is? How do you depict the tension between the respect and understanding that should be given to their judgments versus the questioning that should be [given] to their judgments?

Eick: Were you asking about whether we feel a responsibility to depict it in a particular way?

Solove: Mainly just what your aims are, rather than your responsibility. Is this a question you thought of? Is this an issue that you think of as you present these choices?

Moore: Well, I think David and I are both students of history. In particular, I'm a student of military history, and I have always been fascinated by the fact that the military attracts a lot of different kinds of people in different eras and in different circumstances, but they're all people. It always seems like there's this tendency in popular culture or popular media when you’re doing a piece about the military. It splits into two broad categories. There's this “put them all on a pedestal” [depiction] -- that [military people are] just wonderful, amazing, heroic people. Even when they do terrible things they're still doing it for the noblest of causes, with everyone's best interests in mind. Or, [in the alternative depiction,] they're committing the My Lai Massacre, and they're degenerates, and they're bloodthirsty, and they're the cavalry guys in "Dances with Wolves" that can't wait to kill those Indians. And it just seemed like the cliché -- the truth is somewhere in between. There's a lot of conflicting currents and cross-currents that happen in military service. In a time of war, a lot of actions are taken in very specific circumstances by very specific people. You have to have a lot of broad play there to try to understand what they're doing and why, and it's always permissible to question that. It's always permissible to say, "Is this the right thing? Is this what we really want to do? Even though this is the smartest tactical move, is that the step that we as a people are willing to take?"

It seems to me the show wants to continually ask that question. I didn't want the show to be a military piece about military people who just make all the decisions, and they're unquestioned throughout. Typically, in TV if you were doing something like this, the military would. . . . Well, they did this in the original ["Battlestar Galactica"] actually. In the original show, the military was in charge, and there was a titular civilian government, but whenever they spoke up they were essentially just straw men. They stood up and said, "Hey, we don't think that you should do that Adama!" And they were invariably wrong. They were always wrong. They were always out of line, and they were always portrayed as just fools or naïve, or something really stupid. The military was always the wiser, more paternalistic organization. I felt like that's not really my society, I don't want that to be my society. There's a balance between trying to win and trying to win in a way that is worthy of winning. There are competing interests here. The military is an arm of politics, like the old saying goes, and it's all about [this]: If you try to achieve a certain end, what means are you willing to go to do that? Just because destroying the village might be the smartest way to get from A to B, is it really worth it to get to B?

Eick: Ron was just talking about the human story beneath whatever the military issue might be. For sure, I think we're about to see when the political season really gets going, a story about one of the candidates is going to be all about personal perseverance despite an abject military fuckup. That's something we relate to, that's something [like John McCain's story]: it's not [about] John McCain the solider, it's about John McCain the policy maker. It's not John McCain the field general, it's John McCain the survivor who, in spite of what was perpetrated on him, in spite of the illegitimacy of the war he was in the middle of, [or] in spite of the failings of his commanding officer, was able to eke out a survival and return home a hero. That's just a story we as a people relate to.

Solove: Thank you so much. These have been fascinating answers. We're going to conclude this first part of the interview and shift in the second part to looking at some issues about politics and commerce in the Colonies.

Click here to read the transcript for Parts II and III of the interview.

Posted by Daniel Solove at 10:09 PM | Comments (0) | TrackBack

Battlestar Galactica Interview Transcript (Parts II and III)

posted by Daniel J. Solove

BSG-logo6.jpg

BSG-cylon5.jpgThis 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.

BST-title2.jpg

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."

BSG--black-market1.jpg
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."

BSG-dirty-hands2.jpg
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.

BST-title3.jpg

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.

BSG-cylon4.jpg
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.

BSG-cylon1b.jpg
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 Solove at 10:08 PM | Comments (4) | TrackBack

February 26, 2008

Battlestar Galactica Interview Part III

posted by Daniel J. Solove

BSG-logo2a.jpg

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.

BSG-cylon3a.jpgBSG-cylon2a.jpg

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 Solove at 12:11 AM | Comments (1) | TrackBack

February 25, 2008

Battlestar Galactica Interview Part II

posted by Daniel J. Solove

BSG-logo1.jpg

BSG-scene4a.jpgDave 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.

BSG-scene3a.jpgIn 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 Solove at 12:03 AM | Comments (0) | TrackBack

February 21, 2008

Battlestar Galactica Interview

posted by Daniel J. Solove

BSG-logo4c.jpg

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.

BSG-trial1a.jpgOur 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."

BSG-scene1a.jpgThe 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.

BSG-pic1.jpgThe 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.

Moore-Ron3.jpgRon 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.

Eick-David2.jpgDavid 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.

BSG-1.jpg BSG-20.jpg BSG-25.jpg BSG-3.jpg

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 Solove at 09:19 AM | Comments (34) | TrackBack

December 18, 2007

Law Talk: George R. R. Martin

posted by Dave Hoffman

gm-lochness-t.jpgIn today's episode of Law Talk, we hear from George R. R. Martin, the prolific author of the "high fantasy" series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I've previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) "The American Tolkien."

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead's distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren't a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn't one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here's the interview again. Warning: it's a big file!

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

For other posts in the "Law and Hard Fantasy" Interview Series, see:


Posted by hoffman at 12:26 PM | Comments (30) | TrackBack

December 11, 2007

An Interview with Pat Rothfuss

posted by Dave Hoffman

rothfuss.jpgI'm very pleased to bring you the first-fruits of the Law and "Hard Fantasy" Interview Series: a talk with author Pat Rothfuss.

Pat is the author of the new epic fantasy trilogy, The Kingkiller Chronicle. Book one, The Name of the Wind, follows the adventures of a boy named Kvothe as he learns to be an arcanist, something like an alchemist mixed with a wizard, at the "University." The story is largely told by Kvothe in retrospect. It's autobiographic fantasy, if such a genre existed. The book has been highly praised, and for good reason. I read it early in the fall, and liked it more than any fantasy debut I can remember picking up in several years.

I hope you will find the interview interesting. I'll warn you: Pat has a flair for ... earthy ... language, so you are on notice if that kind of thing offends you. My questions are in bold.

I've claimed elsewhere that most "high fantasy" - multi-volume books that intend to tell large stories about pre-modern worlds - contains remarkably little civil law. The agents of the criminal system, like the hangman and the sheriff, are present, but not the civil law courts. Do you agree with this basic description?

Yeah. That's pretty fair.

Can you imagine creating and writing explicitly about a world where magic and a litigation-based, common-law system, co-existed?

Absolutely. In fact, I've written such a world. You don't see much of it in this first book, but there is a working common-law system in my world. I don't think that the rule of law and magic are mutually exclusive at all.

The problem I'm thinking of is that law really self-conceives as a scientific, proof-based, system. Even in rules-based magical system, reality inevitably gets warped.

Hmmmm..... Good point. But honestly, I think that when that happens in most books, it's because the writer is being lazy. Think about England in the 1500's. People believed in magic and the courts still churned along. John Dee claimed to talk to angels. Alchemists were everywhere. People really believed they could transmute metal, and hell, maybe some of them could. That doesn't mean that there aren't still laws against fraud or theft...

513zQLFakyL__AA240_.jpgYou've talked in interviews about the need to build a world in exhaustive and thoughtful detail, but leaving most of that information on the cutting room floor in the final draft. When you built Kvothe's world, did you think (at all) about the background rules of tort, contract, obligation, and property that enabled the relatively sophisticated economy that you envisioned?

Yes and no. I thought of the legal system, but not in those terms. Mostly because I don't know what a lot of those terms mean. It's the same way that a person can be a good cook without necessarily knowing how to calculate how many joules go into melting butter using delta T.

The big reason you don't see much of that in the book is that it isn't relevant to the story being told, or the experience of the main character. He's a street urchin for most of the book. If a sailor catches him with his hand in his pocket, he's not going to press charges. What's the percentage in that. He's going to fetch the boy a sharp smack alongside his head, and get on with his day...

Now if Kvothe got brought up on legal charges somewhere, that would be different. Then the reader would see the horrible, corrupt wheels of justice creaking ponderously along. We get a glimpse of that in book two, as a matter of fact.

If you have imagined a common law system, what sources did you draw on to flesh out what it looks like in the "book behind the book."

In the commonwealth, their legal system is based loosely on England in the 1500-1700’s. In short, it’s a huge, tangled, unfair clusterfuck of a system. There are courts that enforce church law, and courts that enforce the Iron Law of Atur. Each court operates under its own authority, and of course their spheres of influence overlap… It’s a real mess, but it’s the only system that they have….

I'm curious because the realistic fantasy movement seems, if taken really seriously, to require authors to do a really backbreaking amount of research on wildly diverse fields of knowledge, only a fragment of which will make appearances in the text in more-than-cameo roles.

There’s a lot of truth to that. I wasn’t really aware there was a movement though. I’m just really curious about a lot of things and I bring them all into the book to varying degrees. If you’re a geek like me, and you’re curious about everything, it’s not really much of a burden. In fact, it’s mostly a great excuse for me to dabble a little at everything I’m interested in.

You are an academic...

Woah. Hold on. Those are fighting words where I come from. I'll accept the fact that I work in academia, and that I'm a teacher. But I'm not an academic. Ask anyone.

How is the University Kvothe attends governed? Do the professors have tenure? If not, how is their intellectual freedom protected?

No tenure. The nine masters, each the head of their own discipline, are also the head administrators of the University. Who would fire them?

As for intellectual freedom... How was the intellectual freedom of the Oxford Dons protected two hundred years ago? It wasn't. Or rather, their protection came from the fact that if someone came into Oxford and said, "How dare you teach my child evolution!" they'd laugh their asses off at you. An education was what they said it was, and if you wanted it, you got it from them. They were in control.

Now of course that means that, effectively, they were a self-policing community. And that means that the internal politics were undoubtedly vicious and brutal. I'd have to do more research before I was willing to bet money on it, but I'm guessing that most of the challenges to intellectual freedom came from the academics themselves in those days, not from the outside world.

Do you hate grading exams as much as I do?

I tell you, grading exams is a picnic in the park compared to grading papers. Especially freshman composition papers.

It's not that the writing is particularly bad, some of it ends up being surprisingly good in fact. The problem is that in order for the grade to mean anything, you have to give clear, detailed commentary on the paper, not just a grade. Formative feedback integrated with the assessment. It takes forever and it's exhausting. Sometimes I'll take an hour on a single paper.

What do you do to procrastinate?

Good lord. What don't I do? I read. I'll play videogames if I have them available. I'll do dishes. I'll paint the house.

Sometimes I'll even do online interviews about my fantasy world....

Fantasy (as a category) has exploded in the last decade or two. But most books are pretty bad. I know you've been reading fantasy for a long time, and are a real fan.

First off, I'll have to step to fantasy's defense here. This is a case of "nobody beats up my little brother but me." While I'll be the first to agree that a lot of the fantasy novels out there are pretty bad, it's not a problem that's exclusive to fantasy. Have you picked up the average literary fiction novel lately? Sweet mercy, I'd rather bite out my own tongue.

Hell, even a lot of the classics are pretty bad. Nobody would publish Great Expectations today. And if they did, it wouldn't sell because it's an awful read. That book was pure shite.

My point is that the majority of books in most genres are less-than-delightful. It's not just a problem with fantasy.

So how do you choose which series to invest your time in?

I ask around. Sometimes I read what's popular, because honestly, if a bunch of people are reading it, there's probably something worthwhile going on in there. That's not the best strategy though. I mean, a lot of people out there watch reality TV...

Otherwise, I find authors I like and find out what they read for fun. Then I give that stuff a try. I trust authors more than reviewers for the most part. Not because reviewers don't know what they're doing, but because my tastes more frequently line up with those of other authors, especially those who value the same things I do in my writing: character, language, and story.

Some authors of fantasy books (Goodkind, Pullman, Rowling) appear embarrassed about their affiliation with the category (possibly because in most bookstores, fantasy is sandwiched between the romance and the young adult sections). James Rigney's (aka Robert Jordan) death was significantly less covered than other best-selling authors.

Some fantasy authors are wankers who desperately need a swift kick in the ass. If I wrote a book with a cowboy in it, and a shootout, and a cattle drive, and a whore with a heart of gold. Then I'd have written a western. It doesn't matter what I say; it's still a western. Same is true if you write something with wands and wizards and dragons and magic. You've written a fantasy novel. Deal with it. Learn to cope.

Should fantasy strive towards respectability?

I'm not a big fan of respectability. Will being respectable feed me? Will it keep me warm at night? Will it fill my life with joy? No. In fact, I'll bet a dollar and a doughnut that if I made respectability my goal. My life would suddenly become very flat, stale and unprofitable.

People forget that respect is not the end goal. It is not a quality possessed of an object in itself. Respect is the result of a value judgement other people make about you or something you produce. If my books are solid, full of good story and character, fun to read with good language, then people will enjoy them. Then, maybe, they might come to respect me as an author.

If fantasy writing as a whole strives for quality and achieves it, then the genre will gain respectability. But respectability isn't a means. Respectability is a symptom of quality. We should strive for quality.

Back to the book, at one point we learn about a loan that contains self-help provisions that would be unenforceable in modern courts. How does the existence of this kind of clause in your contract relate to your imagined system of enforcing contracts? [Here, I wrote Pat a long and pedantic description of liquidated damages clauses which I will excise.]

Oh. I see. That’s interesting. I wasn’t aware of that. So how come my credit card gets to charge me extra money if I make a late payment, and that buy 10 CD’s for a penny place is currently trying to get me to give them 100 dollars and a pint of my blood? Is it because non-payment on my part is considered a part of the contract, rather than a breach of it?

To answer your question. The steps that Devi [the creditor] takes don’t reflect much on the legal systems in place in my world. What Devi is doing completely outside the law. In most cases what she is doing is against the law. (Operating as a moneylender without a license.) And in other cases what she is doing is VERY against the law. (Malfeasance, in the old sense of the word.)

One of the things that's surprised me over the last couple months is how many people have missed the fact that Devi is a loan shark. A criminal. I think it’s because she doesn’t fit the stereotype very well. She’s young, pretty, female, articulate and well-educated -- but she’s still a criminal. She doesn’t have Kvothe sign anything because a document would be useless to her; she’s operating outside the law. They don’t really have a contract in the legal sense, they have... an agreement. Implicit in that agreement is “If you try to screw me out of my money or skip town, I’m going to make your life extremely difficult.”

I keep thinking back to the Sopranos. I only watched a few episodes, but in one of them, a guy borrowed a bunch of money and lost it in a poker game. When he can’t pay the mobsters back, they systematically go about pillaging his life to get their money out of him. It’s the same sort of arrangement, really. The main difference is that Devi is much more genteel about how she threatens people.

Anyway, what I’m getting at is that the steps Devi takes to ensure repayment of her loans are extreme. Not because there are no official avenues of legal recourse available, but because those avenues aren’t available to HER.

Is that what you were getting at?

Sort of! I guess that leads to my next-to-last question. In your books, how does "right" and "wrong" map onto what is lawful?

Oh. Good question. Boy... Depending on the country... maybe... 50%? That's a rough guess. They do have rule of law for the most part, but it's a pretty flawed, corrupt system, and most people know it.

Complicating the issue is what system of law they're falling under. There is church law, and common law. Several other social institutions, like the University, create and maintain their own system of rules and punishments. I think the University's system is actually pretty tight, maybe 80 or 90% for them. But what they're dealing with is somewhat limited in scope, most of the things they legislate devolve from the primary assumption that harming others is wrong. That's pretty safe ground.

However, one of the rules is the charge of "Conduct Unbecoming an Arcanist." What does that mean? Well obviously it means just about anything they want. That means that the masters at the university have free reign to trying to enforce their own arbitrary moral judgements on the students. That's where justice always begins to crumble out of any legal system.

Finally, are lawyers today's arcanists?

In the specific sense, absolutely. Rhetoric is one of the main branches of study of the University, and the people who study that are probably training themselves to work in some way with the law.

But in a broader sense the answer is still yes. By nature arcanists gain their power through understanding arcane knowledge. I chose that word because it has vaguely magical overtones, but at it's heart, the word "arcane" means that which is secret or mysterious. My arcanists study several very particular, specialized branches of knowledge that give them control over certain elements of the world. Lawyers do the same thing, just in a very different way.

Great Stuff! Thanks so much to Pat for his thoughtful answers. If you haven't read The Name of the Wind yet, go ahead and buy it. If you find this entire post obscure but have the sneaking suspicion that you are dating or related to a fantasy geek, the book is just the right size to make a good looking wrapped gift. And look for Book Two, The Wise Man's Fear, in the Spring of 2009. Maybe when it comes out, we can have Pat come back for a second part of his interview. I can teach him all about the battle of the forms under the Uniform Commercial Code, or, better yet, the perfect tender rule. Or Raffles!

Posted by hoffman at 07:35 PM | Comments (6) | TrackBack

December 07, 2007

Introducing: The Law & "Hard Fantasy" Interview Series

posted by Dave Hoffman

Matteson-witch.jpgEarlier this summer, I wrote a post titled Fantasy’s Apocalyptic Turn, about the development of the "hard fantasy" movement in modern fiction. As I commented:

[I]t is worth briefly thinking about the relationship between epic fantasy and law. Although the legal aspects of fantasy role playing games are now well-marked out, there has been little work (outside of the Potterverse) on how fantasy authors imagine legal rules' role in society. If epic fantasy is read largely by adolescent boys, this missing attention makes a great deal of sense. You don't see law review articles about Maxim. But, if fantasy, or hard fantasy, has become a literature for the rest of the population, it is worth thinking about the complete and total absence of civil law in these books, and the light touch of criminal law more generally. Is it impossible to imagine lawsuits and magic coexisting in the same society?
This post got some folks blogging - in agreement and dissent.

I'm still interested in the relationship between epic fantastic fiction and law, and I realized that if I really wanted to know about how law makes it way (or doesn't) into fantasy novels, I might as well ask some actual authors about it. So, I got in touch with a few writers who I consider to be among the best practitioners of "realistic" epic fantasy, and I've put questions to them. Now in doing so, I realize that I'm in danger of over-intellectualizing books that require a certain amount of suspended belief to be digested. Worse, really digging into these stories calls to mind E.B. White's quote about frogs and humor. Indeed, as the picture to the right illustrates, law's relationship to magic has the potential to be pretty gruesome.

But it's worth a try. Over the next several months, I'll be bringing you several author responses. Some terrific folks are already on board, including the reigning king of the movement, George R. R. Martin, and I'm hoping for more responses to trickle in. But our first guest is a newcomer to the genre, Pat Rothfuss, author of the new, acclaimed, novel The Name of the Wind. I'll be posting my interview with Pat (hopefully) later on in the weekend.

(Image Source: Examination of a Witch, Thompkins H. Matteson, Wikicommons)

Posted by hoffman at 03:39 PM | Comments (3) | TrackBack

December 03, 2007

Law Talk: Linda Malone on Litigating Global Warming

posted by Nate Oman

In this episode we hear from my colleague Linda Malone, at William & Mary Law School. Linda is an expert on international law, national security law, and the legal issues surrounding global warming. In this episode Linda discusses new litigation strategies that are using domestic courts as a way of enforcing international norms on global warming, as well as forcing action by domestic regulators. Her remarks were originally delivered as the St. George Tucker Lecture at William & Mary, which is given each year to honor the scholarlly accomplishments of a senior member of the law faculty.

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by oman at 09:42 AM | Comments (0) | TrackBack

October 30, 2007

Law Talk: Oman on Civil Cases in Church Courts

posted by Nate Oman

Last week I attended the annual meetings of the American Society for Legal History in Tempe, Arizona. It was a great conference and compared, say, to the AALS meetings all of the presenters had clearly actually written and thought out their presentations before hopping on the plane. In this week's episode I am broadcasting my own presentation at the conference. In early America many religious denominations tried to move civil disputes between church members into church courts, and lately I have been going through the records of Mormon church courts to see how the dealt with contract cases. As part of that research, I've written a paper that looks at the development of the Mormon judiciary, why Mormons sought to bring civil litigation within the church, and why they abandoned the effort around 1900. (I put up a short, preliminary version of my paper on SSRN.) My ASLH presentation shares some of my conclusions from that paper, which will be sent off to the law reviews this spring.

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by oman at 12:00 PM | Comments (0) | TrackBack

October 08, 2007

Law Talk: Doug Berman on the Evolution of Legal Scholarship

posted by Nate Oman

In this week's episode I speak with Professor Doug Berman of Ohio State's Moritz College of Law. Doug is an expert in criminal law and, especially, sentencing policy. He is the keeper of the Sentencing Law and Policy Blog, which has been cited by several courts. He is also an avid observer of the world of legal academia and contributes to the Law School Innovation Blog. In this episode Doug and I talk about recent developments in the world of law schools and legal academia and what they might mean.

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by oman at 03:00 PM | Comments (1) | TrackBack

October 01, 2007

Law Talk: Markovits on Contracts of Adhesion

posted by Nate Oman

In this week's episode I speak with Professor Daniel Markovits of the Yale Law School. Daniel writes in a variety of areas including the philosophy of law, the theory of toleration, and -- most importantly -- the theory of contract law. In 2004, Daniel published an ambitious article in the Yale Law Journal -- "Contract and Collaboration" -- in which he sought to offer a new theory of contractual liability based on the integrative and pro-social effects of contracts. He is now at work on a project that applies his collaborative theory of contract to the perennial problem of contracts of adhesion. The result, as you can hear in this episode, is a critique of contracts of adhesion that is unrelated to the traditional complaints of unequal bargaining power and substantive unfairness.

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by oman at 11:00 AM | Comments (0) | TrackBack

September 24, 2007

Law Talk: Al Brophy on Slavery, Reparations, and Institutional Responsibility

posted by Nate Oman

epstein.jpgIn this week's episode of Law Talk, we hear from Professor Al Brophy of the University of Alabama Law School. In addition to his fame as a Co-Op guestblogger, Al is a legal historian with a special interest in issues of slavery and race in American law. Al is also interested in issues surrounding debates over reparations and apologies for slavery. In this podcast, he discusses how universities and colleges with links to slavery might deal with these issues, using the example of my own employer, The College of William & Mary.

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by oman at 12:14 PM | Comments (0) | TrackBack

September 16, 2007

Law Talk: Gordon Smith and Contracts as Organizations

posted by Nate Oman

This week I speak with Professor D. Gordon Smith of BYU Law School (and, of course, The Conglomerate). In this week's episode, we discuss Gordon's paper "Contracts as Organizations" (with Brayden King), now up on SSRN. Essentially, Gordon is proposing an emperical research agenda for the study of contracts. By "contracts," Gordon really does mean "contracts," not contract law or contract dispute resolution. His argument is that we can use ideas from sociology and organization theory to think about contracts as a species of organization, a move that he claims opens up new possibilities in terms not only of how we answer questions about the process of contracting but also what questions we ask. Enjoy!

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by oman at 08:30 PM | Comments (0) | TrackBack

September 10, 2007

Law Talk: Richard Epstein and the Classical Liberal Constitution

posted by Nate Oman

epstein.jpgIn the latest episode of "Law Talk," I speak with Professor Richard Epstein of the University of Chicago and Stanford's Hoover Institute (currently visiting at NYU). Epstein, of course, is known as one of the most articulate and prolific academic defenders of libertarian or classical liberal approaches to the law. In this episode, he discusses one of his current projects, a volume to be published by Basic Books on the classical liberal history of the constitution. Enjoy!

You can subscribe to "Law Talk" using iTunes or Feedburner. You can also visit the "Law Talk" page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Posted by oman at 10:02 AM | Comments (0) | TrackBack

September 06, 2007

Law Talk: Podcast is now up on the iTunes store

posted by Nate Oman

I have gotten several emails complaining that they could not find the "Law Talk" podcast on the iTunes store. I've fixed this and you can now find "Law Talk" here. FYI.

Posted by oman at 09:20 AM | Comments (0) | TrackBack

September 04, 2007

Law Talk: Steven D. Smith and Law's Quandary

posted by Nate Oman

smithsd.jpgI am happy to announce the inaugural episode of "Law Talk: The Legal Scholarship Podcast." My guest for this episode is Steven D. Smith, the Warren Distinguished Professor of Law at the University of San Diego and the Co-Director of San Diego's Institute for Law and Philosophy. In this episode, we discuss Steve's book Law's Quandary as well as his recently published lecture, "The (Always) Immanent Death of Law." Along the way, Steve has some fascinating things to say about law, the state of legal philosophy, and what jurisprudence might (or might not) have to say to the "real" practice of law.

You can subscribe to "Law Talk" using iTunes or Feedburner. "Law Talk" is very much a work in progress, and I welcome any feedback or suggestions. You can email me at nboman-at-wm-dot-edu.

Posted by oman at 07:29 PM | Comments (3) | TrackBack

August 14, 2007

"Law Talk": Coming soon to an iPod near you...

posted by Nate Oman

microphone.gifWith the help of Concurring Opinions, I'll shortly be launching a new podcast -- "Law Talk" -- focusing on legal scholarship. The basic format will be interviews with law professors about their current research or recent publications. Hopefully we can provide a way of publicizing and popularizing some of the work of the legal academy, as well as giving professors another outlet for sharing their ideas. At this point, I am hoping to get input on three things:

1. I am open to suggestions on the optimal length for the podcast. At this point, I am thinking somewhere in the range of 20 to 30 minutes. Do you think it should be shorter or longer?

2. I am open to suggestions for potential guests. Who would you like to hear from? About what?

3. Do you have a recent publication or a current research project that you would like to discuss on "Law Talk"?

If you have thoughts or suggestions on any of these things, leave a comment or email me at nboman-at-wm-dot-edu.

Posted by oman at 02:29 PM | Comments (1) | TrackBack

Authors

Daniel J. Solove

Website
Understanding Privacy

Kaimipono Wenger

Website
SSRN Page

Dave Hoffman

Website
SSRN Page

Nate Oman

Website
SSRN Page

Frank Pasquale

Website
SSRN Page

Deven Desai

Website
SSRN Page

Michael O'Shea

Website
SSRN Page

Sarah Waldeck

Website
SSRN Page

Lawrence Cunningham

Website
SSRN Page

Danielle Citron

Website
SSRN Page

Jaya Ramji-Nogales

Website
SSRN Page

Solangel Maldonado

Website
SSRN Page


Guests

Darian Ibrahim
Jason Mazzone
Helen Norton
Shruti Rana
Neil Richards
Frank Wu
Corey Yung






ad-logo3.jpg

blawg100_winner2.jpg

Previous Guests

Michael Abramowicz
Michelle Adams
Robert Ahdieh
Michelle Anderson
Laura Appleman
Francesca Bignami
Jeremy Blumenthal
Bruce Boyden
Donald Braman
Al Brophy
Neil H. Buchanan
Bill Burke-White
Scott Burris
Paul Butler
Anupam Chander
Miriam Cherry
Jack Chin
Jennifer Collins
Allison Danner
Brannon Denning
Deven Desai
Mike Dimino
Mark Edwards
Christine Haight Farley
Kim Ferzan
Dan Filler
Amanda Frost
Timothy Glynn
Rachel Godsil
Eric Goldman
David Gray
Craig Green
Tristin Green
Jeffrey Harrison
Erica Hashimoto
Carissa Hessick
Laura Heymann
Christine Hurt
Darian Ibrahim
Dan Kahan
Brian Kalt
Sam Kamin
Chimène Keitner
Heidi Kitrosser
Adam Kolber
Russell Korobkin
Anita S. Krishnakumar
Susan Kuo
Greg Lastowka
Sarah Lawsky
Erik Lillquist
Jeff Lipshaw
Jonathan Lipson
Joseph Liu
Solangel Maldonado
Jason Mazzone
William McGeveran
Salil Mehra
Carrie Menkel-Meadow
Max Minzner
Scott Moss
Eric Muller
Jaya Ramji-Nogales
Elizabeth Nowicki
Paul Ohm
Michael O'Shea
David Opderback
Kristen Osenga
Rafael Pardo
Marcy Peek
Eduardo Peñalver
Geoffrey Rapp
Neil RIchards
Lori Ringhand
Alice Ristroph
Susan Scafidi
Paul Secunda
Jessica Silbey
Peter Smith
Charles Sullivan
Rick Swedloff
Steph Tai
Robert Tsai
Steve Vladeck
Sarah Waldeck
Melissa Waters
Alfred Yen
David Zaring
Timothy Zick
Howard Wasserman
Jonathan Zittrain

Blogroll

Above the Law
ACS Blog
Althouse
Balkinization
Becker-Posner Blog
Beltway Blogroll
BlackProf
BoingBoing
Chicago Law Faculty Blog
Conglomerate
Convictions
CrimLaw
Crime & Federalism
CrimProf Blog
Crooked Timber
Discourse.net
Dorf on Law
Election Law
Emergent Chaos
Feminist Law Profs
43(B)log
Freakonomics Blog
Freedom to Tinker
Google Blogoscoped
How Appealing
Ideoblog
Info/Law
Instapundit.com
JD2B.com
Juris Novus
Jurisdynamics
Law and Letters
Legal Profession Blog
Legal Theory Blog
Legal Times Blog
Leiter Reports
Brian Leiter's Law School Reports
Lessig Blog
Madisonian
Mirror of Justice
The Moderate Voice
National Security Advisors
Opinio Juris
Point of Law
Political Theory Daily Review
PrawfsBlawg
ProfessorBainbridge.com
Property Prof
Red Tape Chronicles
The Right Coast
Schneier on Security
SCOTUSBlog
Security Dilemmas
Sentencing Law and Policy
Simple Justice
Sivacracy.net
The Situationist
Susan Crawford
TalkLeft
Talking Points Memo
TaxProf Blog
Tech & Marketing Law
Truth on the Market
Volokh Conspiracy
WorkPlace Prof Blog
WSJ Law Blog
Wonkette
The Yin Blog

Pajamas Media BlogRoll Member