LawCulture

The Value of Torture

       In teaching constitutional law, a theme I develop throughout the course is whether there are anchors for our interpretation of the constitution's text, whether there are stable values or ideals that guide our application of the constitution to the new facts presented such that we can both evolve over time as well as recognize in the interpretation a societal identity, a continuity of community that was founded on these central principles in 1776 and 1789. 

       In Justice Holmes' famous dissent in Lochner, he wrote that the constitution is made for "people of fundamentally differing views," speaking, of course, of various theories of economics and social justice debated between the majority and dissents in that case.  But Holmes' comment begs the question that I find myself asking over and over this past day as I contemplate how the U.S. House of Representatives could have passed the so-called "torture bill" by a majority of 253 to 168.  Although sufficiently capacious to maintain differing views of "equality," "free speech," and "commerce" can we really say that the constitution makes room for the purposefully threatening, degrading, humiliating and violent treatment of prisoners of war? (As Marty Lederman writes here, the treatment may apply to more than prisoners of war, but to any "enemy combatant" so designated by the Commander in Chief.)

       On September 11, 2001, I felt vengeful. I felt violent. I recognized in me a common human reaction to hate-motivated violence: a like response of hate-motivated violence.  I wanted the terrorists who killed the September 11 victims and the terrorists' loved ones to die.  But as much as this might be a common human response, it seems to me obvious it is not the right response. It is not the good response. It is not the moral response. It does not promote peace or justice. It repeats and continues hatred and violence.

       And so why would we, as a society founded on liberty, opportunity, fairness, a society that has grown into the value of equality -- all of which are manifested in the constitution -- why would we condone the tactics proposed by the torture bill? (In addition to being so vague on what constitutes prohibited torture, the bill also removes the right to petition for liberty -- the right to file a writ of habeas corpus -- for anyone so detained. Can you imagine being held against your will indefinitely with no way to contest your detention because someone in the executive department has labeled you an enemy combatant? If that isn't tyranny, I am not sure what is. Cf. US Const. Art. 1, Sec. 9, cl. 2 (“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it”) and Ex parte Milligan, 71 US 2 (1866) (only the privilege, not the writ itself, is suspended, such that a court can pass on the constitutionality of the suspension).  Due process of law, prohibitions on cruel and unusual punishment, these terms might be vague, but certainly they prohibit waterboarding and sleep deprivation.  (Were police ever to use such tactics against criminal suspects there would be no question of a constitutional violation.)  There are lots of good arguments as to why these kinds of tactics are futile and bad policy -- they produce unreliable information and excludable evidence, they model a behavior we have criticized other countries for employing.  But isn't the best reason for saying "no" to the torture bill that our society's values as embodied in our constitution require we treat even the most vile of human beings as human beings? Except for losing control over our impulses and letting our hatred and fear get the better of us, why would we destroy the reputation and identity of the United States that is embodied, hopefully, in the promise that is our constitution, by condoning the violence that is being done to these prisoners?

Policy in the form of a Comic Strip. Why not?

         I genuinely enjoy reading through the piles of reprints I am sent colleagues over the year (truly, I do!). I tend to fetishize the reprint, the mini-books with their mottled binding and neat lettering. I recently received a very unusual reprint, one that I already covet but am so impressed with I am already sharing it with others. For those not on the reprint list, Keith Aoki, James Boyle and Jennifer Jenkins have authored and designed “Bound by Law? Trapped in a Struggle She Didn’t Understand,” a comic book treatise on copyright law and fair use published through the Duke Center for the Study on the Public Domain. It is fantastic – not only because it clearly lays out the historical evolution of copyright and the problems of “permissions culture,” but because it explains the basics of copyright doctrine in terms that any interested reader will understand. This is, the authors tell us, part of their project. They write in their Afterword “For some strange reason, none of our intended audiences seem eager to read scholarly law review articles. What’s more, there is something perverse about explaining an essentially visual and frequently surreal reality in gray, lawyerly prose. Finally, what could better illustrate the process we describe than a work which ahs to feature literally hundreds of copyrighted works in order to tell its story, a living exercise in fair use? Hence this book.” 

         This got me to thinking more about various forms a law review article could take other than the predictable one symbolized by the “road map paragraph.”  There has been plenty of blog traffic on the variety of legal scholarship (what’s in, what’s out, what counts, what doesn’t, see here and here and here, to link to only a few). But what about thinking more deeply about why we do legal scholarship. Who are we trying to reach with our arguments? Are we trying to reach an audience at all? Assuming we are, why not tailor our arguments for those readers? Other academics? Judges? Lawyers? Elected officials? Certainly, sometimes that means aiming to publish in the top journals in a fairly conventional way. But sometimes that might mean making a comic book; it might mean making a short documentary; it might mean creating podcasts; it might  mean writing across the disciplines; it might mean writing novels. There are some law professors who are more actively engaged in a popular journalistic enterprise and some who are novelists. Aoki et al are the first law professor comic book creators that I know of. Any filmmakers out there? Visual media seems the natural evolution of things, but that may be my own bias.

Everything Bad is Good For You

Last week Steven Johnson spoke at my university and it got me to wondering what people on this list might think of his book, Everything Bad Is Good For You:  How Today's Popular Culture is Actually Making Us Smarter.  Apart from having a great title, Johnson has an interesting thesis.  Contrary to the likes of George Will who argues that we are becoming an "increasingly infantilized society," Johnson argues that the growing sophistication of contemporary popular culture (in the form of games, television, film, and the internet) actually serves to sharpen our cognitive processes.  What do LawCulturers make of this thesis?  What import might it have for the study of law and culture?  For understanding the relationship between law, culture, and democratic authority?

Parody and Pop Culture

Thanks for the warm welcome.  I've been an avid (if lurking) reader of LawCulture for some time now and am very happy to be upping the ante by becoming a regular contributor.

I'm interested in parody and pop culture as tools that can help to disrupt discourses that are stuck or recalcitrant to change.  The humor behind parody has great disruptive potential, as does the populist sensibility that informs certain sites of culture.  In the piece of mine that Jessica mentioned in her post, I use a soap opera's parody of patriarchal authority to send up and disrupt the attachment to the founding fathers that arises again and again in contemporary constitutional interpretation, even amongst liberals like Ronald Dworkin.  That the disruption comes from a populist source in the form of a soap opera is a great bonus, as scholars have long been concerned that a lack of democratic authority in contemporary constitutional discourse seems to undermine judicial legitimacy. 

Here's another example I've been thinking about lately.  In a class I taught recently, I used three rock videos to show how pop culture and parody can both support and subvert sex and gender norms.  (Each of these videos is available on youtube.com) We started out with Robert Palmer's classic 80's video "Addicted to Love," (click here to view) in which Palmer fronts a band of seemingly identical, heavily made up women, "playing" instruments behind him, looking vacant and passive, occassionally licking their lips seductively or just appearing as legs, and other body parts, with Palmer singing about how they're gonna have to face that they're, well, addicted to love.

We then looked at Michelle Shocked's parody of Palmer's video, "On the Greener Side," (click here to view)which turns the Palmer video on its head by fronting Shocked and objectifying the boys in the band, showing them posing in bathing suits and so forth, while she sings about how their love is always greener on the greener side.  While Shocked's video highlights the absurdity of the sex and gender norms foregrounded in the Palmer video by exagerrating them and placing them in a different context, her reversal can't hold a candle to Shania Twain's "Man, I Feel Like a Woman."  (That's right, Shania Twain.)  (click here to view) In her video, Twain starts out as the frontman, wearing clothes and adopting poses similar to Palmer's in the original video. By the middle of the video she has stripped off the male costume and transformed into a female, looking much like the women in the original video, perhaps suggesting the absurdity not only of the male and female identities portrayed there, but also of the stability of gender identity itself.  How many more identities might be lurking beneath that costume?  Maybe we'll find out in a subsequent video!  Anyway, doesn't Twain's transformation have the effect of destabilizing identity more fully than Shocked's reversal?

In any case, these videos opened the door for a wide ranging conversation about sex and gender norms that might not have been as available to the class without the assistance of these performances drawn from pop culture.  Thanks to the students for putting me on to the Shania Twain video.

Welcome!

We welcome Susan Burgess, a political scientist and legal scholar who teaches at Ohio University, as the newest contributor to our blog. Susan and I met years ago at a wonderful short course on law and popular culture hosted by the American Political Science Association. She gave a talk called "Who's Your Daddy? Legitimacy, Parody and Soap Operas in Contemporary Constitutional Discourse," which is forthcoming in the Law, Culture and Humanities journal. Her humor and insight into all things law and culture precede her. We are very glad to have her aboard.

Appeal of the Real

Yesterday, the New York Times reported the revelation that "Lonelygirl15" is a New Zealand actress Jessica Rose and not a homeschooled teenager named "Bree," who has a computer obsession and time on her hands.  For the past four months, "Bree" has been uploading videos of her trials and tribulations onto YouTube.com, drawing fans (many of them) from all walks of life.  "Bree" had so many fans, that the YouTube Lonelygirl15 videos spwned a fan site devoted to Lonelygirl15 gossip, which yesterday was expressing feelings of loss and disappointment at the exposure of "Bree" as a fictional character.  "Bree" and Lonelygirl15 was a film project of Creative Artists Agency and seem to have been some sort of test drive for a major motion picture.  The New York Times reports that the revelation was in part due to a fan finding a trademark application for Lonelygirl15 that reveals the enterprise as a commercial endeavor. 

Whether because of its commercial nature or its "fraud" (as one contributor to the project worried), fans admit that the appeal has burst. The fantasy and intrigue was sustained because "Bree" was believed to be real. Now that she is truly fantastic, the site -- its draw -- has waned significantly, if almost entirely. "Part of the appeal of the series was that the serious-minded, literate Bree offered an unbeatable fantasy: a beautiful girl who techy guys had something in common with. On learning that Ms. Rose was an actress whose interests, unlike the scientific and religious issues that fascinated Bree, ran to parties and posing, one fan wrote, 'Very cute, but she's realy not into Feynmann and Jared Diamond! (I'm heart-broken ... But a wonderful actress, had me fooled into thinking she was a geek like me.)'"

So I have these two thoughts about Lonelygirl15. For readers of this blog, I may sound like I am repeating myself (see "More on L'Affaire Frey" and the A3Groopie expose). But the repetition in life is worthy of repetition on this blog (not to assume there is a distinction, mind you).

One point is a trademark issue: who's to say that a trademark application can't be for a person's moniker, their call-sign, or whatever you call your "stage name" on-line. Certainly, that is how trademark's function -- as a source identifier that is distinctive of you or your goods and distinguishes your goods (or you) from those of another (or others). Use in commerce is a prerequisite, but how much use and how much commerce is a much debated question. And, thanks to the anonymous source doctrine, it doesn't matter that people don't know the source of the good (it doesn't matter that people don't know who "makes" Lonelygirl15), as long as they understand the source is consistent. It seems Lonelygirl15's trademark application shouldn't necessarily have been a tip off of "Bree" fictional nature. The fact that it was a tip-off says something interesting about how her fans think of the role of commercialization in peddling "fantasy" versus the "truth."

Another point is this: the reality of "Bree"'s fictiveness is only less of an attraction if her fans thought that her physical reality and theirs would someday collide. Given the irrationality of that fantasy (that someday some intriguing and good looking superstar will walk into my life, befriend me and adore me), isn't the more realistic play the game where we give into our imaginative capacities and create fantastic worlds where Bree and her fans can chat on-line about books like "Guns, Germs and Steel" and string-theory? Who is to say that the community of fans she gathered around her isn't real enough? Why sustain the unreasonable fantasy of someday meeting and becoming fast friends with Lonelygirl15 and accept the gift of a community of fans and stories and thoughts about the world that she has given you?

Hat-tip to my indefatiguable friend, Bill McGeveran, for this story.