LawCulture

Brief Thought for the 4th

I was pleased to see that the Fourth of July fireworks display on the National Mall will conclude, according to tradition, with Tchaikovsky’s “1812 Overture,” complete with carillons and cannons firing. Tchaikovsky’s famous work of course does not commemorate our somewhat abject War of 1812—when the British burned Washington, and all we got in return was Francis Scott Key’s “The Star Spangled Banner.” The Overture, composed in 1882, celebrated the 70th anniversary of the Russian victory over Napoleon at the Battle of Borodino.

So it’s an entirely appropriate symbolic celebration of victory over the French that we will have on the Mall. Never mind that they were right about the non-existent WMD’s. Never mind that they might actually win the World Cup, a competition in which the USA collapsed early on. We can join hands with Vladimir Putin (looking into his eyes, perhaps) in celebration of the rout of the French. And maybe we can at the same time express our astonishment that five justices of our Supreme Court still give weight to international treaties and conventions. Meanwhile, Bill Frist will take care of that star-spangled banner for you, never fear.

Peter Brooks

Hamdan and the NSA issue: How Congress Should Respond to yesterday Ruling

Justice Stevens' very important opinon in Hamdan -- which reads to me very much like a cri de couer from the Greatest Generation, of which JPS is a proud member, to the curent administration and its relatively youthful legal operatives, about just how this nation should conduct itself in wartime -- constitutes a challenge not just to military tributnals but to the theory of presidential war powers that the Bush White House has been pressing since the September 11 attacks.  So far, most of the post-decisional focus on the political ramificaton focuses on what Congress will now do about authorizing military tribunals since the opinion places no constitutional limits on the congress giving the president everything he wants.  That's no doubt just the post-Hamdan focus the Administration wants, figuring it can get pretty good legislation, and make the Dems look weak if they fight him.  But precisely because the decision is a historic one on war powers generally, it also has direct implications for the NSA wiretapping program's legality.   And Congress should press the White house on just that point.

Judging Performance

A new book has just come out from Princeton Press entitled Judges and Their Audiences: A Perspective on Judicial Behavior. Written by Lawrence Baum, it claims to show how decision making by judges is motivated in large part by how judges imagine their audience will regard their judicial decisions. Based in social psychology as well as empirical evidence, Baum shows how the potential or actual response by a variety of audiences (public, bar, court colleagues) influences a judge’s decision. This seems to be yet another example of legal literature that takes as its premise the situational performance that is the stuff of law.  See Law as Performance by Jack Balkin and Sandy Levinson; De-scribing Law: Performance in the Constitution of Legality by Bernard Hibbitts; Your Second Life? Good Will and the Performativity of Intellectual Property in On-Line Digital Gaming by Andrew Herman, Rosemary Coombe and Lewis Kaye. Struggling with this concept myself these days, I wonder what exactly the term “performativity” adds to the discussion about law as an enacted practice, as a discourse of gestures, language, choreographed position and power. But perhaps that is enough.

The Washington Post likes it, too

Their headline:

U.S. Identifies al-Zarqawi's Successor

What is it with these people?

Because we'd hate to see the position remain empty...

An extremely peculiar headline from today's NYT:

U.S. Identifies Successor to Zarqawi

Why Can't a Legal Academic Be More Like a ...?

So classes are finally over. I've finished grading and my summer writing projects are staring me in the face. I've been working on an article about filmed confessions and autobiographical film, thinking through the similarities and differences, and how the contrast might illuminate criminal justice norms. I happened to be at a wedding this past weekend where I was seated next to the film critic David Denby, who writes for the New Yorker. I was humbled to be in the presence of what I considered a true film guru. I have always admired his writing (about film as well as other things, see his Great Books, for example). Talking with him about film (we spoke mostly about the new film Road to Guantanamo) made me ache for a writing voice more like his. Why don't academics write more popular pieces, shorter articles, that get to the point faster, are just as insightful and detailed, demonstrate acuity of mind and are read and understood by more than just a handful of other clubmembers?  I don't do it now because I don't have tenure, and I want tenure. Tenure requirements don't include (in fact, I think they may all but explicitly discourage) popular press pieces. But law professors more and more are public intellectuals (or try to be) – writing op-ed pieces on a regular basis, writing more popular books (or trying to). What would be the harm if professors -- in the legal field or elsewhere -- were more engaged with the popular media? Would the "intellectual endeavor" of our fields suffer? Would the "discipline" in which we engage loose its rigor?

More on Zarqawi, GTMO, law and war....

In this op-ed by David Luban in today's LA Times:

At war with Iraqi law

Killing Zarqawi robbed Iraqis of the chance to bring him to justice.

Was it something we said?

[The NYT reports on the latest Pew Research Center poll]:

"Global Image of the U.S. Is Worsening, Survey Finds"

Oops.

The bad news: "As the war in Iraq continues for a fourth year, the global image of America has slipped further, even among people in some countries closely allied with the United States, a new opinion poll has found. "

For instance, "Support for the fight against terrorism led by the United States is also down, Pew found. Although strong majorities in several countries expressed worries about Iran's nuclear intentions, in 13 of 15 countries polled, most people said the war in Iraq posed more of a danger to world peace."

The good news: "Many respondents distinguished between their largely negative feelings about President Bush and their feelings about Americans in general."

Docs say: get more vitamin D!

So, does this mean we are allowed to sunbathe again?

Violence here and there

The op-eds can’t say it because it can’t be proved. And I would not even know how to go about proving it. I’m nonetheless convinced that the daily violence in Iraq and the uptick in violent crime in American cities have an intimate connection. It’s not direct cause and effect, to be sure. And it does not bear rational explanation. But a society that lives in the experience and the exercise of violence in its daily imaginative experience may be bound to enact it.

We have come to live by the sword in a kind of daily imaginary, tensing ourselves to the latest report of roadside bombs, young Americans blown to bits (not to mention Iraquis, whose slaughter rate is stupifying). The violence numbs us. Witness the official reactions to the Gitmo suicides: no one could even utter the decent word of regret, not to mention sorrow or shame.

Freud taught us that sadism is the outward manifestation of the death drive, which is otherwise largely undetectable but nonetheless at work in the human psychic apparatus. War, Freud also said, revises our attitudes toward the death drive. The renunciation of death-dealing that civilization brings is sloughed off. We deny the reality of death in our own lives as we mete it out to others.

Civilization to Freud—Kultur—is a kind of living beyond one’s means, in that it demands a large effort of instinctual renunciation. Culture and morality depend on renouncing the instinctual recourse to violence. Our political leaders’ irresponsible, violent, and immoral Iraq war has left us morally bankrupt. Of course there has been a real, material neglect of urban America as well. We’ll be discovering the prices of all this for many years to come.

Peter Brooks