Jurisprudence

Whenever we talk about law we espouse a particular jurisprudential philosophy whether we know it or not. For instance, someone who believes Marijuana should be legal, but does not smoke it because he or she is afraid of getting in trouble, is expressing a certain philosophical view about the law; namely, that law is to be followed because of the possibility of punishment. On the other hand, someone may believe the marijuana laws are wrong but not smoke it because the law as it is written down by the legislature should be followed because it is the law or because his or her particular religious beliefs require one to follow the law. No matter what someone’s opinion is on law, there is a philosophy underlying it.

To talk about the abortion debate as it pertains to the United States without reference to the law of the United States is to espouse a dangerous jurisprudential philosophy. It is a philosophy that a particular interest is so important that the law is not wrong or misinterpreted, but irrelevant. The consequences of this view are obvious; who determines what interests are so important that the law is no longer relevant? Is it those who argue for a woman’s right to choose? Is it President Bush when he authorizes wiretapping or claims that there is no right to habeus corpus?

I can understand why people do not talk about the law when it comes to the abortion debate. First, the law is, to most people, nowhere near as interesting as the underlying moral issues. Second, most people never take the time to learn abortion law. They may have a vague sense of “rights” and “amendments” but no real understanding of just how the Constitution restricts states form banning abortion. It is rare to run into a non lawyer who understands that if Roe is struck down it does not automatically make abortion illegal (though that will be the practical effect in most states).

I spoke to my Constitutional Law professor about this issue today, and he said something that was interesting: to hold the view that the democratically elected legislature should decide the issue is certain political death. Those on the pro-life side will be disgusted that you would stand for a state keeping abortion legal. Those on the Pro-Choice side will be disgusted that you would stand for a state criminalizing abortion. For instance, I think that Roe is an extremely weak decision, but I am afraid to say that around pro-choice people because it is tantamount to saying “abortion should be illegal everywhere and anyone who engages in it should be put to death.”

I could accept someone coming out and explicitly stating that they hold the uber-pragmatic view that they think their interest is so important that they will pay any price to protect it. The problem is that many people are impliedly espousing this view without even realizing it. If you are willing to accept the view that a woman’s autonomy is so important that the law is irrelevant, then accept the consequences of your view; don’t refer to the Constitution next time President Bush authorizes wiretapping or when someone’s right to speech is being infringed upon. Be philosophically consistent.

The talk I have seen on both sides of the abortion debate since Gonzales v. Carhart has been maddening. No one thinks the law is relevant. People think that if the Supreme Court allows the legislature to decide something is the same thing as the Supreme Court deciding it themselves. It is not the same thing. It places the issue back in the hands of the people. If you think that this particular issue should not be in the hands of the people, then point to legal authority about why this is so, and if you cannot (or don't want to) point to legal authority, explain why we don’t have to and then understand the implications.

We do not live in a society where the law is not written down and impossible to know. The benefit of having a written law is that we as a nation know what the law is, and if we disagree with that law we can change it. It provides us with a kind of consistency, so that over time we can determine what the strengths and weaknesses of the law are and adjust it accordingly. It is not something we should ignore when it is convenient for us.

24

I wish I had time to edit.

Occasionally I rent TV shows from netflix, and since I have been hearing a lot of people talk about “24” I decided to get it. I have to admit that on some animal level I was entertained by it, but that is not saying much. Aesthetically speaking, the lowest form of success a story can achieve is making you want to see what happens next. I say this because it is not different from playing a game with a child wherein you hold a box in front of him or her and you pull something out of it to excite the child. You can do this over and over again – what is in the box? THIS IS IN THE BOX!!!! Wanting to see what happens next appeals to our animal nature, but when the story is over we do not reflect upon ourselves or our world in a different way. We have just wasted some of our time on earth (necessary in small doses).

On another level “24” is bad because it is cliché ridden. I would like to go through the show sometime and catalog them all (I would actually like to do this with all movies and form a kind of genealogy of the cliché). One of the clichés that stood out to me was that of the girl from the nobility losing herself amongst the underclasses only to be rescued by her aristocratic father. I saw this at least once before in Traffic. In traffic the cliché was more egregious because there the girl not only loses herself among the underclasses but, of all things, the black underclass. I mean what could be more entertaining, pure light haired white girl is lost among the brutal underclasses only to be saved by her father. Part of the reason I believe that Americans have an instinctive respect toward nobility is because of this cliché. People can’t seem to get enough. See also The Virgin Spring to find this in an unadulterated and self conscious form.

The show also takes a cartoonish view of the criminal. When the young daughter is lost in the underworld the criminal characters she runs into while trying to escape her captors are all cold blooded people who refuse to help. In real life criminals are capable of kindness. Not in 24. In this and other senses 24 is extreme right wing propaganda.

24 also employs a cliché that is among my favorites (meaning in a sense my least favorite) – that of the government agent gone bad. I am amazed that the American public never tires of this character. One could probably find one hundred examples of this guy in a suit with a deep voice and no conscience (always made clear to the audience). People’s ability to watch cliché over and over again is disheartening. I think it speaks to the intellectual level of most of the American public. How is it that they never tire of seeing the same character over and over again? On some level cliché can be good – it can bring out a sense of nostalgia in us, but when a work of art is made up solely of clichés strung together, it is aesthetically indefensible.

Law School People - Parts A & B

A

Theft

A woman embezzled 6.9 million dollars from a construction company. This is what she bought with the money:

"Among the items prosecutors say Platt bought were a four-bedroom colonial-style house on five acres of land in Foster, R.I.; eight show horses; a fleet of motor vehicles including a 1964 antique Ford Thunderbird; Hollywood-grade cinematic props to decorate her home for Halloween; a life-size ceramic statue of Al Capone (seated, smoking a cigar), and six talking trees.

Platt bought the talking trees, which were Hollywood-grade cinematic props, for $3,000 each to decorate her home for Halloween, the U.S. attorney's office said. She also splurged on a 20-foot-tall smoke-emitting dragon called "The Slayer," which sported hydraulically powered wings and a "booming dragon roar," authorities said."

I had to laugh. I think this shopping list is a somewhat accurate picture of what most of my friends would do with seven million dollars.

How to Portray Yourself

I read something brilliant today. It is a guide to getting published in poetry. I am not interested in getting published in poetry or even writing it. I stumbled on the page while looking for webpages about scansion. However, the page is hilarious, and it is applicable to more than just poetry. I think if one follows the advice that page gives when dealing with anything remotely related to academia, one would be much better off. The page shows, indirectly, just how hollow academia’s concern about the less well off is.

If you want to deal with Academia, this is how you have to portray yourself.

My Experience at the Bar the Other Night

"Dr. Hornstetter, the lady doctor who drops in on me almost every day...keeps insisting that I suffered from isolation in my childhood, that I didn't play enough with other children.
Well as far as other children are concerned, she may be right. It is true that i was so busy with Gretchen Scheffler's lessons, so torn between Goethe and Rasputin, that even with the best of intentions I could have found not time for ring-around-a-rosy or post office. But whenever, as scholars sometimes do, I turned my back on books, declaring them to be the graveyards of the language, and sought contact with the simple folk, I encountered the little cannibals who lived in our building, and after brief association with them, felt very glad to get back to my reading in one piece."


Gunter Grass "The Tin Drum" p. 96