As the Chinese lawyer Jiang Tianyong painfully realized, a belief in the rule of law is commendable in one context but deplorable in another. While a belief in the rule of law has traditionally been honored in the dominant American ideology, the same belief is suspect given the dominant Chinese ideology.
Jiang had been a prominent human rights lawyer in Beijing and represented a large number of Chinese dissidents, often with surprising success. His most famous client was perhaps Chen Guangcheng, an activist who fled house arrest and received asylum in the American Embassy. Most recently, Jiang represented a group of other human rights lawyers, who were being prosecuted for criticizing the government.
In late August, 2017, Jiang himself was convicted of inciting subversion and attempting to undermine the Chinese Communist Party. His trial as broadcast live on Weibo, a popular Chinese social media network, and highlights of the trial appeared daily on Chinese network television.
Jiang’s conviction was hardly surprising since, late in the trial, Jiang confessed. In his confession, Jiang apologized for the harm he had done and, indeed, admitted he was part of a conspiracy to topple the Chinese Communist Party. His confession ended with an emotional plea for mercy and for “a chance to become a new person.”
What’s surprising, at least for an American, is that Jiang said he had stumbled into subversion because of a misguided belief in the rule of law. Jiang pointed at “the bourgeois Western constitutional system” and claimed that it had a “subliminal influence on him.” Because of his belief in the rule of law, Jiang said, he rejected China’s political system and worked to replace it with the type of system that reigns in the United States. Continue reading “Jiang Tianyong, Subversion, and the Seductive Rule of Law”
Bill Cosby has made two distinctly different splashes in American popular culture. He starred in “The Cosby Show” (1984-92), a sitcom that was America’s most highly rated television show for five consecutive years. Then, his trial for sexual assault in the spring of 2017 became the most recent “trial of the century.” Ironically, the immense success of the former prevented the latter from attracting the attention many had predicted.
As for “The Cosby Show,” it featured the Huxtables, a fictional upper middle-class African American family living in a brownstone in Brooklyn Heights. Cliff Huxtable, played by Cosby, was a jolly obstetrician, while his wife Clair Huxtable was a successful attorney. The Huxtables has four daughters and one son, and although each episode had its tender tensions, they always dissipated by the end of the hour. “The Cosby Show” was about a happy, loving ideal family, and Cliff Huxtable became the nation’s fantasy father. When TV Guide ranked the 50 greatest dads in television history, the magazine named Cliff Huxtable “The All-Time Greatest Dad.”
While the show rarely addressed race directly, it was what the show left unsaid that was important. Cosby and the show’s producers consciously set out to “recode blackness.” They turned stereotypes upside-down by presenting a tightly-knit African American family that was affluent, had friends and neighbors of different races, and was headed by a married couple, with each member belonging to a learned profession. In the midst of the Reagan-Bush years, Americans took to the portrayal, and it, if only for a moment, obfuscated the nation’s shoddy racist inequality.
When twenty-five years later in time two dozen women claimed Cosby had drugged, sexually assaulted, and raped them, America was shocked. When Cosby went on trial in the spring of 2017 for sexually assaulting Andrea Constand, many thought the public would be obsessed with the proceedings. Coverage of the trial seemed likely to equal that for celebrities such as O.J. Simpson in 1994 and Michael Jackson in 2005. Trials of the rich and famous, after all, have been pop cultural delights since the days of the penny dailies in the early nineteenth century. Continue reading “Bill Cosby and American Popular Culture”
It is my impression that a good rock ‘n roll band can help a lot in law school. If listened to at the “appropriate” volume, the band can reduce the stress of the first year and relieve the tedium of the second and third years.
My band during law school was the Allman Brothers Band. It released an extraordinary string of vinyl albums in the early 1970s, with “Eat a Peach” (1972) being my personal favorite. My friends and I didn’t think of the Allman Brothers as progenitors of southern rock but rather as countercultural southern musicians able to blend the blues, jazz, and even a little country. The Band compared in our minds to Cream, Jimi Hendrix, and, of course, the Grateful Dead. And who knew that an aspiring Georgia politician named Jimmy Carter was also a fan of the Band’s incredible improvisational jams?
The Allman Brothers song that I played the most was “Whipping Post.” Gregg Album wrote the song and also sang the lead vocal. Its studio version appears on the Band’s debut album, but even better is the live version on “At the Fillmore East” (1971). I realized from the start that the song was about lost love, but I chose to think of it in relation to my existential condition: “Tied to the whipping post. Good Lord, I think I’m dying . . . .”
During the 1970s, the Allman Brothers Band lost two of its original members in separate motorcycle accidents. (The Band members loved Harleys.) Afterwards, Gregg Allman struggled to hold the Band together, but alcohol and drugs were mean nemeses. He also had six marriages, including an ill-fated and much-ridiculed union with Cher. But still, he continued to make music and to tour. Elise Papke and I caught his tremendous performance at the Northern Lights Theater in the Potowatomi Casino from second-row seats in 2015, and yes, “Whipping Post” was on his play list.
It was with great sadness that I read of Gregg Allman’s death due to liver cancer on May 27, 2017. R.I.P. old friend, and thanks for your help along the way.
The extraordinary success of the Broadway musical “Hamilton” has spiked renewed interest in the accomplishments of the actual Alexander Hamilton (1757-1804). And indeed, Hamilton was a genuine military hero in the Revolutionary War, George Washington’s unofficial chief of staff, author of two-thirds of the “Federalist Papers,” the nation’s first Secretary of the Treasury, and the leading architect of the Early Republic’s market economy. His accomplishments as an attorney have attracted less attention, but legalists in particular might remember that in his era, he was New York City’s pre-eminent attorney.
When Hamilton returned to New York City after the defeat of the British in 1781, he qualified for a veteran’s exemption from the requirement that aspiring attorneys complete an apprenticeship. He studied law on his own for only six months, concentrating his studies on Lord William Blackstone’s “Commentaries on the English Common Law.” He then passed an oral bar examination and was admitted to practice in 1782. Continue reading “Alexander Hamilton as Attorney”
I had the opportunity in August to spend a day at the Litchfield Law School in Litchfield, Connecticut. Although several universities enrolled students in law departments during the final decades of the eighteenth century, almost all lawyers of the period prepared for practice by completing apprenticeships in lawyers’ offices. Attorney and Judge Tapping Reeve thought that education at a formal law school would be a better way for lawyers to prepare, and therefore he founded the Litchfield Law School in 1774.
More than 1,100 students attended the Litchfield Law School before it closed in 1833. Two of Reeve’s students (Aaron Burr and John C. Calhoun) went on to become Vice President. Fifteen of the students became governors. Three of the students became Justices of the Supreme Court of the United States. Twenty-eight students became United States Senators, and another ninety-seven served in the United States House of Representatives. Clearly, the Litchfield Law School was important in educating and credentialing a significant portion of the era’s most accomplished lawyers. Continue reading “America’s First Law School”
Among Donald Trump’s many provocative statements, his recent claims that a specific federal judge with a “Mexican heritage” and Muslim judges in general would be biased against him have apparently struck a special chord. Even Trump’s fellow Republicans have been highly critical. Senator Mitch McConnell of Kentucky, for example, completed disavowed Trump’s claims, noting “All of us come here from somewhere else.”
Most of the criticisms deplore Trump’s lack of respect for American diversity and also his racism. House Speaker Paul Ryan said in this regard that Trump’s comments amounted to “textbook racism.” However, I wonder if some part of the strong negative reaction also relates to Trump’s challenge to an American belief in law and in the courts’ ability to apply law in a fair and objective manner.
I have argued in several of my writings that a belief in law should be recognized as an important tenet of American ideology, with “ideology” being understood as a normative expression of dominant beliefs rather than as a manipulative falsehood. Americans have traditionally believed in law, which is presumably understandable, made in public, and useful for one and all. In addition, law is supposed to be applied without bias, and independent courts in particular are expected to adjudicate disputes fairly and to decide similar cases in similar ways. “Ideologues” — that is, believers in and promoters of this ideology– routinely assure us that Americans live by the rule of law more so than any other nation. Continue reading “Donald Trump and the Belief in Law”
Most law school classes in Property begin with the venerable bundle of sticks metaphor. The “bundle” includes those rights and interests held by the owners of property. The assorted “sticks” take on different shapes and sizes, and owners invoke one or more of them to a different extent as the times change. In the opinion of many, the right to sell one’s property has supplanted the right to use one’s property as the most important “stick” of in the present.
The recent efforts of George Zimmerman to market the gun he used to shoot Trayvon Martin is a particularly distasteful example of an attempt to sell one’s property. While patrolling as part of a self-styled neighborhood watch in a gated community near Orlando, Florida, Zimmerman confronted and fought with the seventeen-year-old Martin. In the midst of the struggle, Zimmerman fired his 9 mm Kel-Tec PF-9 pistol and killed Martin.
Zimmerman was tried for the murder in early 2012, and the media absolutely feasted on the courtroom proceedings. Zimmerman and his attorneys successfully argued the shooting was in self-defense. Zimmerman was acquitted in February, 2012, and he publicly delighted in his victory at trial. What’s more, the United States Justice Department at that point returned the weapon to Zimmerman.
This past week, Zimmerman put the gun up for sale on several gun auction sites. Continue reading “For Sale: George Zimmerman’s Property”
American letters lost one of its legendary figures when Harper Lee died at 89 on February 19. Lee’s beloved To Kill a Mockingbird won the Pulitzer Prize for fiction in 1961, and it was the most popular of all twentieth-century novels by American authors.
Lee’s work also ranks at the top in the more specialized world of law-related popular culture. Atticus Finch, the novel’s protagonist, inspired many to become lawyers and to work for equality for African Americans. Gregory Peck won the Oscar for Best Actor in 1963 for his portrayal of Atticus Finch in the film version of the novel, and the respected American Film Institute has ranked Peck’s Atticus Finch as the greatest hero in the history of the cinema. Heroism is hard to rank, but Atticus Finch is surely popular culture’s most important lawyer.
Sadly, Lee’s final years were full of controversy. Continue reading “R.I.P. Harper Lee (1926-2016)”
Harper Lee’s Go Set a Watchman has an undeniably odd publication history. Ms. Lee wrote the novel in the 1950s, well before she wrote and published her beloved To Kill a Mockingbird. When she finally agreed to publish Go Set a Watchman in 2015, it registered on critics and readers as a sequel of sorts for To Kill a Mockingbird.
Go Set a Watchman involves the moving rebuilding of a parent-child relationship after the child has lost respect for the parent, and this account deserves contemplation and reflection. However, the novel as a whole is only mediocre. Furthermore, many readers will be shocked and disappointed by the novel’s suggestion that Atticus Finch is not the heroic man they thought he was.
In particular, Finch is hardly a staunch defender of civil rights for the people he calls “Negroes.” He tells his daughter Jean Louise, who was known as Scout as a young girl, “Negroes down here are still in their childhood as a people.” He also reveals he is taking the case of an African American defendant so that the case does not fall into the hands of NAACP lawyers. In Finch’s opinion, the latter are too eagerly seeking cases they can rush into the federal courts.
If Finch is not the champion of civil rights people took him to be in To Kill a Mockingbird, his attitude about the law has supposedly remained consistent. Uncle Jack Finch tells Jean Louise: “The law is what Atticus lives by. He’ll do his best to prevent somebody beating up somebody else, and then he’ll turn around and try to stop the Federal Government if it is breaking the law . . . . [B]ut remember this, he’ll always do it by the letter of the law. That’s the way he lives.” Continue reading “Atticus Finch Revisited”
Next year is the quincentennial of the publication of Thomas More’s Utopia, and celebrations of the book and its author have already begun. More, of course, is a darling of Western culture and politics. He was canonized and is considered the patron saint of politicians and statesmen. Essayist C.K. Chesterton said that More may be “the greatest historical character in English history.”
It therefore comes as a bit of a surprise to learn that More also has a following on the political left. None other than Marx and Engels praised More’s thinking, and Lenin honored him by listing his name on a monument erected in Moscow’s Aleksandrovsky Gardens.
More’s description of an ideal society in Utopia is what leads to the leftist lionizing. His society has no private property, state ownership of the means of production, and extensive welfare programs for the poor and elderly. Because of these public policies, More seems to some to be a “proto-Communist.”
None of these policies are even remotely possible in the contemporary U.S., and the collapse of actual Communist regimes of the late-twentieth century is well-documented. However, More deserves credit for reflecting on what type of socioeconomic structure might produce what type of consciousness. More thought that the population of his utopian society would avoid alienation and adopt a genuinely social worldview rather than a greedy, self-interested individualism.
More was a dreamer. Yet his variety of dialectical materialism remains appealing 500 years after he teased it out – in Latin no less!
In recent decades, awareness of narrative and of stories in general has increased in many fields and academic disciplines, law included. However, it is nevertheless surprising to see that even law enforcement specialists in the Justice Department have developed an appreciation of the workings and importance of narrative.
This heightened sensitivity surfaced in the recent Justice Department report on police conduct in Ferguson, Missouri following the shooting of Michael Brown. Issued by the Department’s “Community Oriented Policing Services” office, the report outlines no fewer than 113 lessons that police in Missouri and elsewhere might learn from developments during the seventeen days following Brown’s death and funeral.
Much of the report is predictable. It criticizes such police tactics as the use of dogs, tear gas, and so-called “overwatching.” With the latter, police use rifle sights to survey a crowd from positions on top of police vehicles. Overall, the report warns that “militarization” of a volatile situation will probably make things worse.
Toward the end of the report, its authors turn to what they label “lost narrative.” In their opinion, Missouri law enforcement was too slow to provide information about the shooting of Brown and thereby created an opening for alternative representations of the incident. Supporters of Brown and his family seized the opportunity and offered an alternative narrative, one conveyed largely but not completely through the social media and one stressing that “Black Lives Matter.” Continue reading “Narrative and Social Control”
The highly regarded World Justice Project, an independent organization in Washington, D.C. that promotes the rule of law, has used 47 indicators organized around nine themes to generate a so-called “Rule of Law Index.” Using this Index, the World Justice Project then ranked 99 of the world’s nations according to the extent to which the rule of law was truly operative in those nations’ daily life. The United States ranked nineteenth.
This ranking is surely respectable. Americans could conceivably be pleased the United States compares so well to nations such as Zimbabwe, Afghanistan, and Venezuela, which do in fact appear at the bottom of the World Justice Project’s ranking. But at the same time Americans could be disappointed that the top four nations are, in order, Denmark, Norway, Sweden, and Finland. What’s more, other nations with a common law heritage such as Australia, Canada, and New Zealand also rank higher than the United States.
The ranking is especially surprising given familiar American boasting that their nation lives by the rule of law rather than by the rule of men and that their nation is exceptional in this regard. A belief in the rule of law, in my opinion, has been a central tenet of American ideology since the earliest decades of the Republic. However, all ideological tenets should be subject to vigorous critique, lest they be used for political purposes.