December 14, 2005

More Harry Potter and Law

Benjamin Barton, University of Tennessee College of Law, has published "Harry Potter and the Half-Crazed Bureaucracy" in volume 104 of the Michigan Law Review. It is also available as a download from the SSRN. Here is the abstract.
This Essay examines what the Harry Potter series (and particularly the most recent book, The Half-Blood Prince) tells us about government and bureaucracy. There are two short answers. The first is that Rowling presents a government (The Ministry of Magic) that is 100% bureaucracy. There is no discernable executive or legislative branch, and no elections. There is a modified judicial function, but it appears to be completely dominated by the bureaucracy, and certainly does not serve as an independent check on governmental excess. Second, government is controlled by and for the benefit of the self-interested bureaucrat. The most cold-blooded public choice theorist could not present a bleaker portrait of a government captured by special interests and motivated solely by a desire to increase bureaucratic power and influence. Consider this partial list of government activities: a) torturing children for lying; b) utilizing a prison designed and staffed specifically to suck all life and hope out of the inmates; c) placing citizens in that prison without a hearing; d) allows the death penalty without a trial; e) allowing the powerful, rich or famous to control policy and practice; f) selective prosecution (the powerful go unpunished and the unpopular face trumped-up charges); g) conducting criminal trials without independent defense counsel; h) using truth serum to force confessions; i) maintaining constant surveillance over all citizens; j) allowing no elections whatsoever and no democratic lawmaking process; k) controlling the press. This partial list of activities brings home just how bleak Rowling's portrait of government is.The critique is even more devastating because the governmental actors and actions in the book look and feel so authentic and familiar. Cornelius Fudge, the original Minister of Magic, perfectly fits our notion of a bumbling politician just trying to hang onto his job. Delores Umbridge is the classic small-minded bureaucrat who only cares about rules, discipline, and her own power. Rufus Scrimgeour is a George Bush-like war leader, inspiring confidence through his steely resolve. The Ministry itself is made up of various sub-ministries with goofy names (e.g., The Goblin Liaison Office or the Ludicrous Patents Office) enforcing silly sounding regulations (e.g., The Decree for the Treatment of Non-Wizard Part-Humans or The Decree for the Reasonable Restriction of Underage Sorcery). These descriptions of government jibe with our own sarcastic views of bureaucracy and bureaucrats: bureaucrats tend to be amusing characters that propagate and enforce laws of limited utility with unwieldy names. When you combine the light-hearted satire with the above list of government activities, however, Rowling's critique of government becomes substantially darker and more powerful.

Furthermore, Rowling eliminates many of the progressive defenses of bureaucracy. The most obvious omission is the elimination of the democratic defense. The first line of attack against public choice theory is always that bureaucrats must answer to elected officials, who must in turn answer to the voters. Rowling eliminates this defense by presenting a wholly unelected government.

A second line of defense is the public-minded bureaucrat. Some theorists argue that the public choice critique ignores what government officials are really like. They are not greedy, self-interested budget-maximizers. Instead, they are decent and publicly oriented. Rowling parries this defense by her presentation of successful bureaucrats (who clearly fit the public choice model) and unsuccessful bureaucrats. Harry's best friend's Dad, Arthur Weasley is a well-meaning government employee. He is described as stuck in a dead end job, in the least respected part of the government, in the worst office in the building. In Rowling's world governmental virtue is disrespected and punished.

Lastly, Rowling even eliminates the free press as a check on government power. The wizarding newspaper, The Daily Prophet, is depicted as a puppet to the whims of Ministry of Magic. I end the piece with some speculation about how Rowling came to her bleak vision of government, and the greater societal effects it might have. Speculating about the effects of Rowling's portrait of government is obviously dangerous, but it seems likely that we will see a continuing uptick in distrust of government and libertarianism as the Harry Potter generation reaches adulthood.

Barton's is the latest in a series of pieces exploring law in in Rowling's novels. Other entries using Harry as inspiration include Julie D. Cromer's "Harry Potter and the Three Second Crime: Are We Vanishing the De Minimus Doctrine From Copyright Law?" in the New Mexico Law Review and Aaron Schwabach's "Harry Potter and the Unforgiveable Curses: Norm Formation, Inconsistency, and the Rule of Law in the Wizarding World" in the Roger Williams Law Review. There are also Susan Hall, Harry Potter and the Rule of Law: The Central Weakness of Legal Concepts in the Wizard World, in Reading Harry Potter: Critical Essays, edited by Giselle Liza Anatol, and published by Praeger (Westport CT, 2003) at pp. 147-162, and William P. MacNeil, `Kidlit’ as `Lawandlit’: Harry Potter and the Scales of Justice, 14(3) Law and Literature 545-564 (2002).

[Cross-posted with variations at The Seamless Web].

December 1, 2005

Criminal Law and "The Beggar's Opera"

Ian Gallagher of Syracuse University's College of Law is publishing "Let Us Take the Road": The Beggar's Opera and Its Criminal Law Context, in Internationale Forschungen zur Allgemeinen und Vergleichenden Literaturwissenschaft. Here is the abstract.
The Beggar's Opera is a work studied for its political satire, its importance as a progenitor of musical forms from the singspiel to the Broadway musical, and even its possible interpretation as a metaphor for the "Christian myth." But this seemingly simple, if cynical, tale of love and betrayal in the criminal underworld of 1728 London has not previously been studied for the insights it can offer into the relationship between law and society in early Hanoverian England. This paper uses the play's plot as a point of departure to study some aspects of crime and punishment. Using contemporary sources to supplement, and correct, the play's portrayal of crimes, criminals, and the criminal justice system of the time, the paper concludes that the play offers a valuable view of criminal life in Eighteenth Century London.
Download the full paper from SSRN here.
For more on John Gay's Beggar's Opera, see the following websites:
Renascence Editions, The Beggar's Opera
University of Michigan (student prepared version with extensive notes)
University of Virginia, E-Text version of The Beggar's Opera

Kurt Weill and Bertolt Brecht transformed the play into The Threepenny Opera (Der Dreigroschenoper) in 1928. It made famous such songs as Mackie Messer (Mack the Knife) which became a hit for Bobby Darin.

[This entry is cross-posted at The Seamless Web]

October 28, 2005

Harry Potter Goes to Law School

Harry Potter has inspired articles by two Thomas Jefferson School of Law professors. Julie D. Cromer's "Harry Potter and the Three-Second Crime: Are we Vanishing the De Minimis Doctrine from Copyright Law?" is forthcoming in the New Mexico Law Review and is also available in the TJSL Legal Studies Research Paper series as 05-11. It's also downloadable from the SSRN. Here is the abstract:
This paper examines the importance of the de minimis doctrine in copyright law and these potential conclusions. It evaluates the history of application of the de minimis doctrine in copyright law, establishing that courts have long turned to the doctrine for guidance in copyright decisions. Further, it reviews legislative history to determine whether the application of the de minimis doctrine is indeed contrary to Congressional purposes, as recent decisions suggest, and if there may be sufficient justification for its abolition in connection with sound recordings only. It studies the effects of the doctrine's elimination, evaluating whether copyright law written without the understood de minimis doctrine would be a workable regime. Finally, the paper questions whether revocation of the de minimis doctrine helps or hinders the "Progress of Science and the useful Arts", asking whether policy dictates that the technological ease of copying should in fact lead to the less stringent application of copyright law to future works.

Aaron Schwabach has published "Harry Potter and the Unforgivable Curses: Norm-Formation, Inconsistancy, and the Rule of Law in the Wizarding World," again in the TJSL Legal Studies Research Paper series 05-13, and in volume 2005 of the Roger Williams Law Review. It is also downloadable from SSRN. Here is the abstract:

The astounding success of the Harry Potter series of children's fantasy novels is an unexpected cultural phenomenon, but a welcome one for lawyers and legal academics: Harry's story is a story about law, and about a society trying to establish a rule of law. There is law in every chapter, and on almost every page, of all six books. Sometimes the legal questions hang in the background, while at other times they are the focus of the story: We see numerous trials, and the author gives us statutes, regulations, school rules, and even international agreements to consider. Harry's world is administered, ineptly, by the Ministry of Magic. The Ministry of Magic's muddling misrule is not quite dictatorship, but it is not fair and just, either. Under the stress of the first war against Voldemort's Death Eaters the Ministry regime, like some Muggle governments in similar circumstances, adopted an ad hoc and inconsistent approach to justice. It imprisons people, and sometimes executes them, without a trial. It keeps careful tabs on law-abiding citizens, but is unable to track down terrorists. It reaches inaccurate results in about half of its criminal trials, in large part because defendants are not represented by counsel. This article attempts to examine the problems with the wizarding word's legal system by focusing on one particular problem: the Unforgivable Curses, three spells whose use on humans is punishable by life imprisonment. The three Unforgivable Curses are the Cruciatus Curse, which causes unbearable pain; the Imperius Curse, which allows the user to control the actions of the victim; and the Killing Curse, which causes instant death. There are inconsistencies both in the application of the law and in the selection of certain curses as Unforgivable. The choice to outlaw these three spells, and not others that may be even worse, reflects something about the values of both Harry's world and ours. The article explores the moral assumptions underlying this choice, examining the legal treatment of these spells under the Ministry's regime as well as under relevant British (Muggle) and international law.

October 18, 2005

Jane Baron on Property

Jane Baron (law, Temple) has posted on SSRN her article entitled Property and 'No Property,' 42 Hous. L. Rev. (forthcoming Jan. 2006). According to the abstract:

This essay addresses the vexing question of whether property enhances freedom. Contemporary property debates tend to focus on what might be called the affirmative side of property rights - what they give (or ought to give) to owners vis a vis others and vis a vis the government. But if, as the Realists long ago suggested, property is social, involving relations between people, and if property involves politics, the exercise of power by some over others, then it makes sense to think about the negative side of property rights, the effects of not having any property to speak of. Persons owning very few things inhabit a realm of severe social and legal vulnerability, susceptible to the power of many (and, of course, the government) without having (m)any reciprocal power(s) over others. I call this situation "no property."

This paper seeks to describe the legal category "no property." Rather than enumerate its iterative disabilities, I enlist a recent novel, Valerie Martin's Property, in the hopes of describing "no property" imaginatively. The novel illustrates the ways in which legal states that deprive persons of the ability to own or to control property - slavery and coverture - render persons susceptible to the power of others. Notwithstanding enactment of Married Women's Property Acts and the end of slavery, many today - such as the homeless and the extremely poor–remain in a position of comparable legal and social vulnerability. For persons so situated, the freedom-enhancing aspects of property are more or less beside the point. What they experience as a legal matter is, to recur to some older terms, duties, no-rights, liabilities and disabilities. These iterative negatives together constitute a status, a status in which it becomes possible for them to be seen as, essentially, objects, not subjects.

Effective regulatory schemes take existing schemes of property rights into account. "No property" is such a scheme. Because it consists so largely of negatives, of rights and powers that people do not have, it is difficult to recognize it as such. But it is as serious a constraint on regulatory possibility as, say, the ownership rights of those affected by limitations on the cutting of old growth forests or by required reductions in factory emissions. If we want to "do something" about the poor and the homeless - whether it be banishing them to special "zones" or targeting services to them - we will need to understand the legal situation in which we find them. For this reason, I argue, we must continue to seek to understand and define the legal category of "no property."

October 3, 2005

Anomaly in Delbanco's Account of the "Billy Budd" Debate

Dan Solove lists Andrew Delbanco's fine new book called Melville: His World and Work. One of the book's merits is its even-handed treatment of scholarship about Melville's works. Unfortunately, in assessing the Law-Lit debate about Billy Budd, Sailor, the author seems to this reader to privilege more traditional accounts of the tale (i.e. those justifying Captain Vere's behavior). Part of this relates to Delbanco's interpretive technique itself, e.g., p. 311: "As if some mischievous philosopher has dropped by to divert us with an epistemological riddle. Melville opens the debate over Billy's fate with a pair of rhetorical questions: 'Who in the rainbow can draw the line where the violet tint ends and the orange tint begins? Distinctly we see the difference of the colors, but where exactly does the one first blendingly enter into the other?'" In this formulation, the most important textual riddle, articulated several lines below, is omitted: "Whether Captain Vere, as the surgeon professionally and privately surmised, was really the sudden victim of any degree of aberration, every one must decide for himself by such light as this narrative may afford". Only the most authoritarian reader -- Richard Posner being among the most recent -- can avoid this inquiry or suggest, more benignly (as Prof. Delbanco does) that the story excuses Vere by making all decisions seem fraught with ambiguity. The insertion of the surgeon's doubts about Vere late in the genealogy of Melville's tale (see, e.g., The Failure of the Word, pages 145 et seq) helps shed the narrative "light" upon Vere's lawless obsession with Billy's death.

Prof. Delbanco does little with the surgeon, who privately surmised with other officers that custom and usage dictated not a drumhead court but a return to the fleet before Billy should have been tried, much less executed. Vere insists that the law requires him to hang Billy. He is wrong, and his fellow officers know this but lack the courage publicly to challenge their leader. Only the judges hand-picked by Vere courageously voice their doubts. Here, too, Prof. Delbanco's reading tilts towards Vere, as he speaks of "the judges . . . groping for some reason to defer judgment". The reasons were palpable to everyone!

The new book's account of the debate among Posner, Brook Thomas and myself will have to be judged more impartially by other readers. However, there is a troubling factual omission. on p. 384, where Prof. Delbanco reports (correctly) that Hayford and Sealts (the textual editors) ORIGINALLY argued that Melville simply did not know enough about the relevant naval law to "intend to imply that Vere was conducting an illegitimate judicial action" (emphasis provided). But later, as should be fairly well known, Sealts -- partly citing to my work --reversed his position:

"With regard to Vere's conduct of Billy's trial and execution, Hayford and Sealts [in their 1962 edition] concluded -- perhaps somewhat hastily --that Melville 'simply had not familiarized himself with statutes of the period.' 'Melville's expertise in naval law and history' must be assumed according to Richard H. Weisberg, a man trained both in literature and jurisprudence. . . [However,] Melville is inviting his reader to examine Vere's actions in the context of the story as he himself conceived it, not with strict reference to naval law and history." Merton M. Sealts, "Innocence and Infamy in Billy Budd Sailor," in John Bryant, ed., A Companion to
Melville Studies (N.Y.: Greenwood Press, 1986), 416-419, emphases in original.

The narrator explicitly asks us to judge Vere's sanity in summoning the drumhead court, in ignoring Naval usage and the covert rumblings of his fellow officers, in parrying the nervous court's own hesitation, in hanging a man beloved of the crew by suggesting they will mutiny if Billy is not hanged, in mustering the men back to work quickly after the disgraceful execution precisely to avoid that mutiny, and in violating law and custom at every turn while rigidly declaring himself bound by law and not his own natural conscience. Melville wanted this story, of course, to be for everyone, but it is now established that he knew enough of the law of the sea to be intentionally adding to the narrative "rainbow" Vere's hypocritical legal pronouncements.

Prof. Delbanco's new book, despite these qualms, must be read by all Melville enthusiasts.

October 1, 2005

Sarat et al. on Law and the Screen

LAW ON THE SCREEN (Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey eds. 2005)

From the Book Description:

The proliferation of images of law, legal processes, and officials on television and in film is a phenomenon of enormous significance. Mass-mediated images are as powerful, pervasive, and important as are other early twenty-first-century social forces—e.g. globalization, neo-colonialism, and human rights—in shaping and transforming legal life. Yet scholars have only recently begun to examine how law works in this new arena and to explore the consequences of the representation of law in the moving image. "Law on the Screen" advances our understanding of the connection between law and film by analyzing them as narrative forms, examining film for its jurisprudential content—that is, its ways of critiquing the present legal world and imagining an alternative one—and expanding studies of the representation of law in film to include questions of reception.

Read the Law & Politics book review here.

September 30, 2005

Alfred Brophy on the Power of Antebellum Literary Addresses

Alfred L. Brophy, University of Alabama School of Law, has published "The Law of Descent of the Mind: Law, History, and Civilization in Antebellum Literary Addresses," in the University of Alabama Public Research Paper Series. It's available from SSRN. Here's the abstract:
In the antebellum era, literary addresses were a common and popular form of public expression. Legal historians have profitably mined Fourth of July orations and addresses in Congress for insight into the intellectual worlds of the antebellum era. Yet, they have made virtually no use of the literary address, which are aimed at a different and more elite audiences. This essay employs a close analysis of nearly forty addresses given at the University of Alabama from 1832 through 1860 to gauge the changes in thought in the antebellum South on political theory and jurisprudence. It uses the addresses to create a picture of the world view of the judges. The addresses, moreover, illustrate the changes from Enlightenment ideas of moral and technological progress to a static, proslavery vision of the late antebellum period. They allow us to assess the orators' intellect, interests, knowledge, and belief systems. The addresses illustrate a wide-ranging respect for ideas, including the abolition of capital punishment, the scholar's search for truth against the tide of public opinion, republicanism, democracy, radicalism in American politics, and the importance of slavery to Southern culture. A final section turns to judicial opinions in Alabama to make a preliminary sketch of the ways that some of the ideas expressed in the addresses correlate with the moral philosophical views of judges. The addresses, thus, emerge as important windows into antebellum Southern thought and as vehicles for mapping in detail the intellectual world of moral and political philosophy inhabited by southerners, particularly judges and legislators in the years leading into Civil War. Finally, the essay begins to sketch key pieces of jurisprudence (such as considerations of utility, the importance of history and culture, and morality), as it provides a model of how to mine the hundreds of addresses delivered to other literary societies, north and south, in the years before Civil War for insights into legal thought.

September 25, 2005

New Biography of Mark Twain

Ron Powers, Mark Twain : A Life

From Publisher's Weekly:
Starred Review. After dozens of biographies of Twain (1835–1910), one can fairly ask, "Why another?" But Powers, who wrote about Twain's Missouri childhood in Dangerous Water: A Biography of the Boy Who Became Mark Twain, early on promises "interpretive portraiture," which entails doing something that has never quite been accomplished before: presenting the totality of the man in his many moods and phases of life, including acerbic son and brother, prank-prone youth, competitive writer, demanding friend, loving husband and, eventually, globe-trotting celebrity. In doing so, Powers succeeds in validating his own assertion that Twain became "the representative figure of his times." Powers demonstrates that Twain embodied America during the tumultuous latter half of the 19th and early 20th centuries, from the divided self of the Civil War, through the unstable prosperity of the Gilded Age, to the verge of WWI. All the while, Twain asserted in both literature and life his confidence in New World progress over Old World conservatism. Unlike Twain, whose prose Powers characterizes as "wild and woolly," the biographer is lucid and direct while maintaining a steady hand on the tiller of Twain's life as it courses a twisty path as wide and treacherous as the Mississippi itself. Powers, a wise, if loquacious captain, takes us on a wonderful journey from beginning to end.

New Biography of Herman Melville

Andrew Delbanco, Melville: His World and Work

A review by Michael Dirda in the Washington Post says:
In the end, perhaps the most important use of literary biography is to send us back to a writer's books with increased understanding and renewed excitement. This Andrew Delbanco certainly does for Herman Melville. We are his beneficiaries.

September 23, 2005

Jane Baron on Law's Guilt about Literature

Jane Baron (law, Temple) has posed an abstract on SSRN about her new piece, Law's Guilt about Literature, in the forthcoming book, Toward a Critique of Guilty: Perspectives from Law and the Humanities, (A. Sarat & M. Anderson, eds., 2005), pp. 17-30. Here's the abstract:
This essay addresses the theme of guilt in law and literature from the law side. It argues that the legal academy's flirtation with literature reflects two forms of guilty uneasiness. The first relates to the question whether lawyers should be reading literature at all. This is a methodological anxiety. It presumes a distinctly legal method of analyzing legal issues, in which literature does not have a truly legitimate role. The second anxiety is substantive. It presumes law has an identifiable content, one that excludes much that appears in literature. Both presumptions are, I argue, questionable and make sense only if law is viewed as primarily doctrinal. Fundamentally, these varieties of uneasiness have their roots in the still unresolved conceptual challenge of figuring precisely what is "interdisciplinary" about the law and literature enterprise. Developing an honest form of "interdisciplinarity" will be difficult if not impossible because it requires an examination of usually unstated assumptions about the uniqueness of law.

September 1, 2005

Two recent assessments of Law and Literature

Within the past few months, from both sides of the table, important commentaries on the Law and Literature Movement (or "Enterprise") have appeared. Julie Stone Peters, a professor of English at Columbia, and Kenji Yoshino, a law professor at Yale, have each separately published articles -- she in the PMLA (Publication of the Modern Language Association), he in the Yale Law Journal. Peters' essay, which can be found at vol. 120#2 of the PMLA (2005), is called "Law, Literature, and the Vanishing Real: On the Future of an Interdisciplinary Illusion"; Yoshino's article is called "The City and the Poet" and appears in vol. 114 of the YLJ (2005) beginning at page 1835.

I happened to read these fine pieces in quick succession, yielding a benefit worth stressing here. People tend to neglect the truly interdisciplinary nature of the Law and Literature enterprise. Yoshino largely ignores the effect of this work upon literary theory and scholarship. Peters of course brings to the table her literary perspective; perhaps since she is a lawyer as well as an English professor, however, her effort also primarily "tests" the enterprise by weighing its influence on legal thought. Still, her literary sensitivities and training enhance her understanding of the enterprise's cross-disciplinary contributions, and she cites a number of literary scholars whom Yoshino has no doubt not read at all.

It is worth emphasizing that in the 30 or so years since the onset of the "modern" movement, Law and Literature has informed the thinking and writing of many folks who do not have law degrees. (Geoffrey Hartman pointed this out several years ago in associating Law and Literature with the New Historicism and in stating that the enterprise has also produced some of the best examples of "cultural criticism".) There are important communities of scholars working today -- many of them younger people -- in English and other Literature departments, not only in the United States but in Italy, France, the UK, Scandanavia, Germany and the Netherlands, as well as in Australia and China. Some of these efforts, directed of course to speech act theory, rhetoric and traditional literary analyses of stories but also to technical considerations of authorship, intellectual property, and inheritance law, have advanced these subjects in a singularly inter-disciplinary way. Lawyers writing about the enterprise need to be more aware, perhaps, of the balance that has been sought and in part achieved by some who helped "pioneer" the enterprise, many of whom are still active in LHI.

One final, related point: Yoshino's ascription to Robert Weisberg of the bifurcation of the field into "Law in Literature" and "Law as Literature" is incorrect; Peters does better in tracing out the origins of this seeming dichotomy. (Robert Weisberg has contributed in many other ways to the field, primarily as a critic of what he deems to be a certain sentimentalism or questionable insistence that somehow the mere reading of "Literature" will make lawyers better people. I have answered him on this, trying to show that much of the work -- again -- has been interdisciplinary -- it tends not only to conflate the fields despite their natural resistance to any threat to their perceived uniqueness; but it also undermines rather than promotes the unitary assumptions of each separate discipline, and perhaps especially the idea that "Literature" is inherently edifying!) More important though then who said what first may be the over-emphasis in both essays of this only-superficial if pedagogically useful dichotomy, which actually originated in a two-volume work from the early '60's by famous New York civil rights lawyer Ephraim London.

The reading of stories, in my view, serves as the predicate for the understanding of law -- its power to mobilize rhetoric and form to advance its often covert agendas . So "Law-in-Literature" and "Law-as-Literature" are intertwined, not separate. These two essays, which make many other points not addressed here, can be profitably read together by the decreasingly segregated audiences of lawyers and literati.

August 16, 2005

August 12, 2005

Melville's Billy Budd and Security in Times of Crisis

My essay, Melville’s Billy Budd and Security in Times of Crisis, 26 Cardozo L. Rev. 2443 (2005), written for a law and literature symposium at Cardozo Law School, was recently published. The symposium was held in celebration of the 20th anniversary of the publication of Richard Weisberg's The Failure of the Word. The symposium issue will be out shortly, but all the articles are now available on Westlaw and Lexis.

I’ve placed a final version of my Billy Budd essay on SSRN. Here’s the abstract:
During times of crisis, our leaders have made profound sacrifices in the name of security, ones that we later realized need not have been made. Examples include the Palmer Raids, the McCarthy Era anti-Communist movement, and the Japanese-American Internment. After September 11th, this tragic history repeated itself. The Bush Administration has curtailed civil liberties in many ways, including detaining people indefinitely without hearings or counsel. These events give Herman Melville's Billy Budd renewed relevance to our times. Billy Budd is a moving depiction of a profound sacrifice made in the name of security. This essay diverges from conventional readings that view Billy Budd as critiquing the rule of law. Instead, Billy Budd supplies us with a radical and unsettling set of insights about why our leaders often fail to do justice in times of crisis. The novella suggests that by manipulating procedure under the guise of law, Vere gives the appearance of following the rule of law, when, in fact, he is not. This is particularly illuminating, as the Supreme Court in Hamdi v. Rumsfeld has held that normal procedures required by the Due Process Clause can be modified and watered-down for enemy combatants.
This essay is a quick read for anybody interested in thinking about how Billy Budd relates to security and civil liberties.

Josef K. -- Justice Denied. Again.

This is something I posted about a month ago on PrawfsBlawg, but it's relevant to this blog too, so I'll cross-post:

Judge Alex Kozinski and his law clerk, Alexander Volokh recently published an opinion by a panel on U.S. Court of Appeals for the 9th Circuit in a law review article. The article is called The Appeal, 103 Mich. L. Rev. 1391 (2005). The judges on the panel were Judges Alex K., Bucephalus, and Godot. No reason is given for the inexplicable delay, as the case was argued and submitted in 1926 but not decided until 2005. And no reason is given why the opinion was published in the Michigan Law Review rather than in the Federal Reporter. Shame on the panel!
The opinion begins:

The late Josef K., a thirty‑something male, claims that "[s]omeone must have slandered [him], for one morning, without having done anything truly wrong, he was arrested." T.R. 3.

The procedural history of this case is complicated and patchy, but what is clear is that, after being rude to his arresting officers, appellant came late to his initial interrogation and disrupted the proceedings. He refused to attend further interrogations, submitted no evidence or brief in his defense and repeatedly accused judicial authorities of corruption and incompetence.

He was apparently convicted, though the conviction does not appear in the record. On the eve of his thirty‑first birthday, K. was taken to a quarry by two guards and executed. "With failing sight K. saw how the men drew near his face, leaning cheek‑to‑cheek to observe the verdict. 'Like a dog!' he said; it seemed as though the shame was to outlive him." T.R. 231. As it has.

K. appeals, alleging unlawful arrest, inadequate notice, due process violations, systemic corruption, ineffective assistance of counsel and actual innocence. We affirm. . . .
The panel denied K.’s claims regarding his arrest:

Even though he was under arrest, K. was still allowed to "carry[] on [his] profession" and was not "hindered in the course of [his] ordinary life." T.R. 17. Also, K. admitted that the arrest "ma[de him] laugh," T.R. 47, and that, to the extent the incident tended to "spread the news of [his] arrest [and] damage [his] public reputation, and in particular to undermine [his] position at the bank," "none of this met with the slightest success." T.R. 48. Without cognizable harm, K. lacks standing to contest his arrest. De minimis non curat lex. . . .

While we're on the subject of trifles, we address K.'s claim that he was arrested without a warrant. At the time of the arrest, K. showed the guard his identification papers and demanded, in return, to see the guard's papers and the arrest warrant. T.R. 8. Not only was he not shown these, he was also told that the guards "weren't sent to tell" him why he was arrested. T.R. 5.

We see no problem. Before ordering an arrest, the authorities "inform themselves in great detail about the person they're arresting and the grounds for the arrest." T.R. 8. They don't "seek out guilt among the general population, but . . . [are] attracted by guilt . . . . That's the Law." T.R. 8‑9; see also Decl. of Penal Colony Officer ("Guilt is always beyond a doubt."); Gerstein v. Pugh, 420 U.S. 103, 113 (1975) (arrest warrant not necessary for arrest supported by probable cause).
The panel affirmed the conviction, denying poor K. justice once again (the first time being his sudden execution):
K.'s only clear claim is that he is innocent. See, e.g., T.R. 47, 148, 213. But how can K. credibly claim innocence when he admits to not knowing the law? T.R. 9. He might as well dispute what the meaning of "is" is. The fuss he makes about how innocent he feels "disturbs the otherwise not unfavorable impression [he] make[s]." T.R. 14. Especially ludicrous is his suggestion that no one can "in general be guilty," as "[w]e're all human after all, each and every one of us." T.R. 213. That's how guilty people always talk.

In any event‑‑and this is the nub of the matter‑‑we fail to see what's so special about being innocent. See Commonwealth v. Amirault, 677 N.E.2d 652, 665 (Mass. 1997) ("[O]nce the [criminal] process has run its course . . . the community's interest in finality comes to the fore."). We will assume, for the sake of argument, that K. did not commit the crime for which he was convicted and executed. Can we be sure that K. did not commit some other, worse crime, that was overlooked? To ask the question is to answer it. The law works in mysterious ways and that which should be done is presumed to have been done. It follows that that which was done needed doing. K. was convicted and executed after a legal process that, as we have seen, is unimpeachable. He must have deserved what he got.
The opinion concludes:
K.'s overarching complaint, that "the Law should be accessible to anyone at any time" and that he has been denied entry to it, T.R. 216, "rings hollow." Alex K., Scholarship of the Absurd: Bob Bork Meets the Bald Soprano, 90 Mich. L. Rev. 1578, 1583 (1992). The very existence of these proceedings has provided an entrance for K. to defend himself. K. has consistently refused to cooperate with court officials' repeated attempts "to straighten out his complex case, regardless of the time and cost." T.R. 251. No one else could gain admittance here, because this entrance was meant solely for him. If he nevertheless remained outside, he has only himself to blame.
This opinion is in flagrant disregard of the law. I am especially outraged that Judge Godot never attended oral argument, and the opinion has been written without any indication he has read the papers or discussed the case with the other panel members. Such a disregard for justice is Kafkaesque, to say the least.

Perhaps the most ironic opinion pertaining to Josef K. is a real one by the U.S. Supreme Court. In Joe Kafka v. United States, 121 S. Ct. 1365 (2001), the U.S. Supreme Court issued its typical one-sentence order, denying certiorari without explanation: “The petition for writ of certiorari is denied.” Recall the parable in The Trial: “Before the Law stands a doorkeeper. . . . The doorkeeper sees that the man is nearing his end, and in order to reach his failing hearing, he roars to him: ‘No one else could gain admittance here, because this entrance was meant solely for you. I’m going to go and shut it now.’” A one sentence denial of cert., without explanation . . . how appropriate for Josef “Joe” K.

Billy Budd Resource

For those interested in Herman Melville's Billy Budd, there's a terrific online resource to the text. It provides a complete text of the work with hyperlinks that contain illustrations, definitions of nautical and other terms, and additional resources.

Law & Literature Syllabus

I've been teaching a seminar in law and literature for many years, and I thought I'd provide a link to my syllabus if it will be of use to anybody. The basic pedagogical approach to my course is to teach it in a jurisprudential manner, illustrating how literature contributes to elucidating enduring philosophical issues in the law. There are, of course, a myriad of different approaches to the course, but for those interested in mine, the syllabus is very detailed and might be of interest.

The Beginning

This blog will cover law and humanities topics. It is still in the early stages. It will be a group blog, with a variety of contributors from different fields. Right now, it is still in its infancy, but it is my hope that it will blossom over time into a leading resource for scholars, students, lawyers, and anybody else interested in the intersection between law and the humanities.