By: Matt Gautier

Thane Rosenbaum thinks “atrocity is different” and that artistic license hits its bounds when confronted with events it just can’t handle, such as the Holocaust. The first reaction is the old saw, “We need to know our history to avoid repeating the past . . . in the future,” but Rosenbaum has an antidote to that. He thinks the Holocaust’s victims own their story and that it’s a moral crime to misappropriate that story to create art. And even worse, he worries that the Holocaust story will be tweaked during the fictionalization process in a way that necessarily trivializes the horror of the actual events. In novels, short attention spans require tales of heroism and redemption. In film, logistics alone require the facsimile be sanitized. Even Steven Spielberg’s cast of thousands were helpless to portray the nightmare-scape of half-living Muselmanner and shit-smeared corpses. So, representing the Holocaust, in any format, inoculates future
generations against repeating, not the historical atrocity, but a fictional one made palatable for the purpose of entertainment.

But, come on. Do artists really have a duty to stand silent? I would think not, and two reasons spring to mind. First, artists don’t operate with the filtering mechanism that Rosenbaum’s philosophy requires.. Although he’s a novelist as well as an academic, the latter must be governing because he overlooks the emotional spontaneity that births much art. It’s up to academics and politicians to ponder the societal impact of a work, while the artist creates based on internal impulses that he often can’t even formulate into words. Wassily Kandinsky describes the artistic process as a “difficult task,” and a “cross to bear” since “every one of [the artist’s] actions and thoughts and feelings constitutes the subtle, intangible, and yet firm material out of which his works are created . . . .” It’s one thing to advocate state sponsored censorship, but it’s simply antithetical to the artistic process to propose that artists have a
duty to limit themselves. An artist’s duty is to his work, not society, and to deny the pure artistic impulse is to sully the authenticity of the work.

Second, the fact that “atrocity is different” should elevate the importance of art. Art operates on an emotional level that cold, hard facts and primary historical documents can’t attain. It’s true that Hollywood blockbusters fail in this regard, but then again, it’s reasonable to adopt a definition of ‘art’ that doesn’t encompass, ‘The Reader,’ ‘Atonement,’ and ‘Valkyrie.’ The story of the Holocaust wasn’t heroism and redemption, but neither was it six million dead and video of mass graves. The Holocaust was desperation, pain, and terror in the face of absolute evil, but nothing I’ve read by Des Pres or Primo Levi brought me to the tearful recognition I experienced on hearing Jeff Magnum, haunted by Anne Frank’s fate, singing, “I know they buried her body with others. Her sister and mother and five-hundred families,” on Neutral Milk Hotel’s Aeroplane Over the Sea. A childhood of history lessons, and the distance of decades, has numbed my generation to the atrocity of the Holocaust. Thank God we have art, not to distort, but to rouse.

By Ilana Ofgang

“A great artist… must be shaken by the naked truths that will not be comforted. This divine discontent, this disequilibrium, this state of inner tension is the source of artistic energy.”
- Goethe

“The purpose of art is to lay bare the questions which have been hidden by the answers.”
- James Baldwin

“Art is the Queen of all sciences communicating knowledge to all the generations of the world.”
- Leonardo da Vinci

Over the past few weeks, I have been thinking about three of the themes of our Law and Literature class: 1) the importance of public trials and truth 2) the rational/reasonable man 3) the artist’s commentary on the legal system. About a year ago, I watched a film called The Lives of Others, which was set in 1980’s East Berlin. In this film, a playwright and his girlfriend (an actress) are under the secret surveillance of the Stasi. For me, after having taken Law and Literature, the film provides insight into the failings of the reasonable man. It also shows the dichotomy between the passive and the passionate in its portrayal of the spy and the artists. The spy in this film would be a great model for the ‘reasonable’ man –he is totally, passive, logical, cold, and rational. He approaches both his task and his entire life without emotion. In contrast, the artists on whom he is spying are emotionally complex, passionate, sexual, creative and troubled in a very human way. In one of the scenes the Stasi spy hears Beethoven being played on the piano while he is listening in on the lives of the artists. Tears inexplicably stream down the spies’ cheeks while he listens to the music coming through secret microphones hidden within the playwright’s apartment. He is experiencing Beethoven not through his own personal experience, but for a moment he is listening through the lens of an emotionally complex human being –effectively perceiving this moment as if he is in the shoes of the very people he is spying on. I feel like this scene is a beautiful depiction of the way in which art not only comments on issues of morality and moral justice (in this instance through film) but can also have a transformative effect on the listener (here, the spy) subconsciously. In this film, the lives of those being watched and of the watchers are changed forever through the course of this secret surveillance. Slowly we see the cold hearted spy come to understand the spectrum of emotions that he, by his conformity to the system, is being deprived of. This moves him later in the film to act morally rather then rationally or reasonably. There are subtle comparisons made between the artist couple and the spy, and those comparisons are very relevant to our Law and Literature discussions of the moral versus the legal, the emotional versus the rational, and the idiosyncratic versus the reasonable.

Coincidentally, espionage was the subject of an instance in which the themes of Law and Literature came up in current events this week –the tragic difference here is that this is not literary fiction or a movie but reality. In our first class, we listened to a reading of A Month in Kislev and we learned of the importance of public trials and the necessity of community involvement to achieve morally just results. The public-ness of a trial lets the truth be told, and allows not only the clients but society to take part in the judgment. Through our discussion of the trial scene in Billy Budd, we saw the negative effects of a trial that was held in private, without any community involvement or jury. This contrast speaks to a suspicion we naturally have of things taking place behind closed doors. If one has nothing to conceal, then why hide? This theme of public trials took on frightening significance for me yesterday when I read about the journalist in Iran who was just sentenced to 8 years in prison on a charge of espionage. Her trial was conducted in private, no evidence has been presented to the media or the public, and the conviction occurred after only one day of secret deliberations. The news people who were covering this story kept emphasizing the private-ness of the trial and their emphasis reminded me of our discussions in class. There is something embedded deep in the fiber of our emotional beings that tells us that the meting out of justice should be a matter of public concern and never conducted in secret. This 30 year old woman was buying a bottle of wine when she was arrested; the next thing she knows is that she will be facing 8 years in prison with no evidence presented as to why. Her story plays out like the nightmarish trials of the novels we have been reading. It is Kafka-esque –the similarities with Joseph K. in The Trial easily come to mind because of the lack of public information about both the evidence and the charges against this journalist. This is one of many tragic reminders that art is an ever relevant comment on life, and occasionally we should heed the warnings of the artists – who somehow often see the true reality of life so much more clearly then those supposedly rational, reasonable men.

By: Tanner Rouse
In the movie Fracture we see a fascinating and often under-publicized moral debate that lawyers must face.  Do they take the job that can often times yield a more rewarding legal career or do they pursue the higher-paying, less fulfilling career?  Ryan Gosseling’s character is a hot shot district attorney that possesses the option to maintain a presence at the DA’s office where he is a star litigator, or move on to a private firm where he will be handsomely rewarded for his services.  Again, this is a fascinating and under examined element of the lawyer’s career.  Where do we draw the line between moral fulfillment and legal prestige?  This is a very similar issue to the one faced every day by prosecutors that wish are forced to choose between representing their clients best interests and successfully prosecuting a case by accepting a plea bargain.  Where does the lawyer draw the line?  On the one hand he has a moral duty, on the other he needs to consider his own career and personal satisfaction.

In the movie the lawyer, somewhat predictably, chooses the role of the prosecutor only to win the case and depart the law forever.  It seems his dismay at nearly losing the case will never leave him.  But before he makes his decision, he is reminded by actor Bob Gunton that the thrill of the law, sometimes, only sometimes, can be driving a stake in the heart of a bad guy.  It would be very interesting to read or hear just how many lawyers know this reality and leave this form of the law regardless, for more money.  Ultimately is a fascinating battle between moral duty and financial security that has many implications for the legal profession.

By: Anna Krutaya

Movies depicting trials and the events surrounding trials have been around for ages.  In its countdown of the 25 Greatest Legal Movies, the ABA Journal has a movie dating all the way back to 1939 (The Young Mr. Lincoln). Regardless of what the plot is or what year the movie was made, the general concept is always the same; it is a battle between good and evil. Those who represent the good are seeking to expose the truth about something that the evil side is attempting to conceal.  If the good wins out in the end, the audience is left with a sense of satisfaction and fulfillment after seeing that the justice has been served. If evil prevails, the audience walks away saying that the film truly portrayed the shortcomings of our legal system. However, I find that if one focuses only on which side prevails, you will miss seeing the bigger picture and will thus be missing out on the true message that the writers and the directors are trying to convey.

One of my favorite movies growing up was The Miracle on 34th Street. Fred Gailey played by John Payne portrays a young attorney who leaves his job in a prestigious New York firm in order to represent Kris Kringle who claims to be the real Santa Claus.  The case seems to be a lost cause from the beginning. How could a court of law which is supposed to be logical and reasonable, sanction the existence of what most deem to be a fictional character? When Mr. Gailey wins the case it is considered a miracle (thus the name of the movie), but I would argue that the bigger miracle goes completely unnoticed. When Mr. Gailey decides to quit his job in order to represent Kris Kringle, those closest to him are skeptical to say the least.   Doris, who is the female lead and Mr. Gailey’s love interest, calls his resignation an “idealistic binge” over some “lovely intangibles.” His reply is that one day she might discover that those intangibles are the only worthwhile things in life.

It is only after taking Law and Literature that I find myself being able to appreciate the true importance of this statement. Even in 1947 the writers and directors understood the necessity of exposing the law’s focus on the physical and the tangible. What are these intangible things that Mr. Gailey believes to be the only worthwhile things in life? I would argue that they are all those things in a moral justice universe that are necessary to discover the truth. Mr. Gailey knows that without truth, there can be no satisfaction in life. He knows that attainment of the truth is the only real justice. He knows that no matter how ludicrous a defense may seem, every person deserves to have their story heard.  What the legal profession needs today is another miracle. We need our attorneys to learn the importance of truth and back-story. We need our attorneys to be willing to lay their own future on the line so that the truth may be discovered. But most of all we need our attorneys to understand that the intangibles really are the only worthwhile things in life.

By: Remy Lapidus

In the New York Times on Sunday, U2 singer Bono wrote an editorial urging charity even during times of hardship.  He explained that going to Church on Easter provides him with a new feeling of rebirth, and that our current recession should provide each person with one as well.  Just because people in the United States are facing hardship, it does not mean we should abandon our obligation to help others abroad living in extreme poverty.  He suggested that today people are volunteering more, because they have less money to give.  And although this is in itself beneficial, giving foreign aid remains a necessary investment, not just as a good deed.  Poverty-stricken countries that become more self-sufficient through aid will eventually be able to participate in the global economy making all countries wealthier.

Peter Singer, a philosopher, discusses the moral obligations of what Bono describes as a spiritual requirement.  What makes someone a good person?  Not committing horrible atrocities?  Or is it simpler than that?  Can you be a good person just by avoiding hurting those you love, trying to give some money to charity and working hard?  Peter Singer emphatically says no.  He argues that if you are not giving away a significant portion of your wealth to foreign aid, you cannot say in good conscience, that you are a “good” person.  What can make someone good in Singer’s eyes? Giving away as much of your wealth as is possible to leave you modestly comfortable.  In Human Rights and the Holocaust class, we talk about how ignoring a homeless person on the street is committing a spiritual crime because you are devaluing their existence.  Singer explains that about half a million children a year in developing countries die from the rotavirus—a disease that no longer exists in the US.  He tells the story of Bill Gates, how upon learning this statistic, realized that in today’s world, some lives, those of children in developed nations, seemed to be valued more than those of children in other, poorer countries.  Singer argues that by not giving away some of your wealth to helping those living on less than one US dollar a day you are committing a moral crime.  This crime is valuing your own comfort, or a new yacht, for example, over a thousand times more than the lives of poverty-stricken people you can save by giving your money to aid instead of spending it on yourself.

By: Diego Galindo

In The Myth of Moral Justice Professor Rosenbaum argues that the law focuses too much on the physical aspect of crimes and ignores the internal world where pain and injustice also exists and where wrongs are left unresolved and unaddressed. Thousands of people go through our legal system each year and are left, whether monetarily enriched or not, feeling spiritually and morally empty. Rosenbaum condemns the fact that the law offers no remedy for this and rarely attempts to acknowledge the internal world.  He believes that through awareness and conscious effort the law can evolve to encompass this necessary aspect of human justice. But the problem is that while the existing legal system has clearly defined standards (for the most part), a similar moral structure would almost be impossible to set up. Not only because of differing internal worlds between people but because of the ever-changing emotions within one person. What might feel like a horrible injustice today might feel differently tomorrow under different considerations or repose or any other of the millions of reasons why people change how they feel. There must be some guidelines then so that there is some possibility of precedent and reliability. To achieve this, the first order of business has to be the drafting of basic moral rules that we all share as a species from whence the rest can spring forth.  But is this possible? Can we really come together and set religious, ideological and cultural differences aside to find common ground? If we cannot do this, I believe Professor Rosenbaum’s ideas will unfortunately never manifest themselves out of the internal world into the physical world where they can have their deepest impact.

By: William Burke

As the son of a Luzerne County (PA) judge, I have vicariously experienced a small measure of the enormous stress my father has endured in his professional life for roughly the past year.  You see, my conversations with Dad have reflected the fallout of a judicial scandal that has engulfed the Luzerne County court system during that time.  This scandal formally ended on February 12th, when two county judges plead guilty to charges of tax evasion and defrauding the public of their honest services, each receiving 87 months in federal prison.  And although my father was by no means implicated, you need not stretch your imagination to conceive of the angst induced in all county court employees as they watched and sometimes participated in the lengthy federal investigation that spawned the plea agreement.

The full scope and details of the scheme that landed these two jurists seven-plus years of hard time are still somewhat unclear, but the short of it is this: together Judges Mark Ciavarella and Michael Conahan received some $2.6 million in kickbacks in return for illegally facilitating the development of two privately owned juvenile detention centers in Pennsylvania.  They first helped ensure that the county entered a lease agreement to use the centers to house the county’s sentenced juveniles, and subsequently Ciavarella, who presided over the county’s juvenile court, incarcerated juveniles at a rate far exceeding the state average.  In doing so, they attempted to guarantee the financial viability of the two centers, in which a business partner of theirs had huge stakes, in return for their own pecuniary gain.  Of course, the countless indiscriminately sentenced youths were the scheme’s victims.

As we know, the path to moral righteousness in the legal world is under constant assault from various fronts, its assailants fueled by political influences, the rigid demands of legal formalism, and above all, money.  If this incident does not prove as much, then I don’t know what does.  However, in this particular instance, the moral result was not trampled by the bench’s inability to depart from ill-fitting precedent that demands overtly unjust but legally sound result; nor did the moral result fall victim entirely to the plea agreement, seeing as the publicity of this disgraceful story was unprecedented in its extent.  Rather, morality was betrayed here, most shamelessly, with the backroom winks of the very individuals in whom the Luzerne County public had placed its greatest trust.  Was it the first such incident?  Certainly not.  Will it be the last?  Doubtful.

And yet, despite the history and prospective future of immorality in the law, I truly believe that the “myth of moral justice”, as unequivocally supported as it is by greed-inspired tragedies such as this, can only be remedied through recognition of its existence.  For although the follies of human nature will remain timeless, and men will at times succumb to the enchanting pipe dreams conjured by the vision of a dishonest shortcut to success, I do think we learn and grow as a society, and as a legal system, when the moral bankruptcy of individuals in power is itself put on trial for all to see.  Professor Rosenbaum is certainly doing his part in this endeavor, but it will be up to us, the future fabric of the American bar, to heed the wisdom gained through moral critiques of the law.  Sometimes the learning process through which we gain this wisdom is, as here, quite depressing.

So while we may never know just how many youthful lives were irreversibly altered by the self-motivated sentences imposed by Judge Mark Ciavarella, my hope is that in light of this case and its national exposure – as evidenced by its appearance on the front page of the New York Times online – future cases in Luzerne County and elsewhere are now all the more likely to be decided within an impartial paradigm guided by integrity, honesty, and true moral justice.  After all, that ideal is at the core of what Professor Rosenbaum and my father have strived to impress upon me as I near a legal career myself.

By Ilana Turko

In recent times we have witnessed an enormous increase in pirate attacks, especially off the coast of Somalia.  After one of the most recent attacks, where Captain Richard Phillips risked his life by volunteering to be held captive in an effort to protect the crew of the Maersk Alabama, President Obama approved of the use of military snipers in an attempt to rescue the captain.

International military response to these terrifying pirate attacks has varied.  In our Human Rights, the Holocaust, and the Law class, we often discuss the fixation of the law on the tangible, such as physical damages or money lost, and contrast this with the lack of focus on spiritual and moral harms.  In response to the captivity of Captain Phillips by Somali pirates, the US military was given public approval to intervene.  This can be viewed as a reflection of our legal and moral disapproval of the acts of the Somali pirates.  However, the Royal Navy was recently warned by the British Foreign Office that they should not intervene or detain Somali pirates because those pirates may be able to make asylum claims in Britain.  Why?  Because the pirates, if convicted in their native country of Somalia, could be subject to human rights violations such as beheading or having their hands chopped off.

This scenario presents an interesting example of how the concept of moral/spiritual harm can be so easily divorced from legal “justice.”  Although the British authorities may theoretically recognize that the terror that the pirates impose on their victims is very real and horrifying, they render their military officials impotent because of a legal technicality (an important legal technicality in the realm of human rights, but a technicality nonetheless).  Their military personnel – those who are actually in a position to intervene and put an end to the appalling spiritual and legal injustice that the victims of pirate attacks suffer – are unable to act in a way that fully recognizes the range of suffering to which the victims are subject.  The British government says the military mustn’t detain the culprits.  Although there is a legal reason for disallowing their military personnel from getting involved at this level, the lack of intervention is tantamount to a tacit approval of the moral and spiritual harm that the pirates impose on their victims.  This disparity in results – between a legal technicality and government condemnation of moral/spiritual harm – is a perfect example of the injustice that manifests when a legal system is presented with a legally correct result that conflicts with a morally correct result.

By: Maurice Collada

Thirty-two years ago in Skokie, Illinois a small Jewish community was threatened with the horror of being reminded of the atrocities committed upon them and their relatives in the Holocaust when a neo-Nazi organization planned to march through their town. After the town’s Counsel attempted to place administrative blocks to prevent this affront, a battle ensued in court over the neo-Nazis’ freedom of assembly as protected by the First Amendment. Eventually, the Supreme Court determined that Illinois could not prevent the neo-Nazis from marching. Despite the obvious intention to inflict psychological trauma upon the Skokie Jewish community, the Supreme Court was able to come to a conclusion that was constitutionally sound.

The following was the crux of their holding: “If a state seeks to impose a[n injunction in violation of First Amendment rights], it must provide strict procedural safeguards, including immediate appellate review. Absent such review, [a stay must be granted].”

Over thirty years ago our legal system continued the tradition stripping all moral considerations from the issue at hand. Nowhere in their holding did the Supreme Court mention the offensive nature of the free speech they were protecting. They failed to mention that not only was this community targeted because of their Jewish affiliation, but because they were a known community of Holocaust survivors. While the march never actually materialized, the outcome of the case provided another clear example of our legal system’s inability to realize that sometimes the morally right decision requires legal creativity, and if that doesn’t work then legal revision.

The Village of Skokie case did not produce total disappointment however. The failure of the Court to incorporate the bigger, moral picture caused the Skokie Jewish community leaders to realize that they could not rely on our justice system to sufficiently protect or even voice their side of the story. In their holding, the Court told the world that the government would not take sides on a story regardless of which one was obviously morally reprehensible and which one was necessary to protect to effect moral justice. The justice system’s commitment to being a bystander clearly communicated that if the Jews of Skokie were to have their story be told, then they would have to do it themselves. So they did.

This weekend the Illinois Holocaust Museum and Education Center opened. Thirty years after the “Supreme Court of the Land” failed them, and $45 million in fundraising later, the Jewish community of Skokie, Illinois made sure that their story would be told, the atrocities they endured would not go forgotten, and the spiritual and moral strength that got them through it all would be memorialized for future generations.

Their message: “We can rise and be up-standers,” in the telling of our story – we do not need to be bystanders. While our justice system may fail us in this regard, we will not sit by and be silenced by those who speak with more aggression, and hatred filled fervor.

This message, I think, is important for us to remember when we try to reconcile our justice system’s legal limitations with humanity’s moral imperatives. It is not the scope of this entry to explore the philosophical debate over granting any particular institution the power to determine the stories to be told and the ones to be restricted. The dangers of that type of system are self-evident. It is my hope that this story, thirty years in the making, reminds us all that while we may be disappointed, discouraged, and even at times distraught by our “justice” system’s moral failures, we have the power to do something about it. The Jewish people of Skokie reminded us this weekend that we can tell our own story if need be: we need not stand by and wait for the justice system, we can stand up and do it ourselves.

By: Rachel Turner

The movie The Reader unfolds the aftermath of an affair between a sixteen-year-old boy Michael, and an older woman, which takes place in post-holocaust Germany. The two cross paths later in life when Michael, then a law student, attends the trial of some former concentration camp guards, one of them being his aforementioned lover, Hannah.

Law school in that era scarcely resembles the well-populated institutions of our time, presumably since the law had failed to prevent the atrocity they all lived through. It is hard to imagine maintaining faith in a system which failed so notoriously. Michael and his few classmates, however, remain committed to the justice system.

Their learning process is surprisingly much more moral as opposed to legalistic. The Professor probes beyond the narrow view of the law. The morality of the law is displayed during the trial when the judges interrogate Hannah’s position as a guard and are particularly interested in her backstory.  It is important for the panel of judges to discern how the guards selected people to be sent to the ovens, and how they in fact locked the doors with people clammoring to survive.  Hannah accounts her role as though it were completely obvious and understandable.  It is a particularly painful scene to watch as the judge earnestly attempts to find some humane reason for Hannah’s behavior, after which she pointedly responds, “well, what would you have done?”

In the American justice system, Hannah’s testimony alone would have been enough to guarantee sentencing and punishment, but in post-holocaust Germany there was a need to figure out why.  The procedure went beyond our narrow rules of evidence to discern how people can partake in true evil.