Weekly Round-Up for March 30th

As always, here are the links to the weeks best and most interesting stories:

There were, conservatively, 74,205 different columns this week on the Affordable Care Act, and I can't link to them all.

Here's Slate's page with ALL their stories on it. 

Salon explains that in landmark cases, ideology often trumps precedent. 

David Franklin suggests Roberts will maneuver the Court into a narrow avoidance of the real issues in the healthcare cases being heard this week. 

The New York Times has a handy interactive guide to the three-day hearing here, if you want background.

Andrew Koppelman gives his take on the healthcare cases. 

As does Rebecca Buckwalter-Poza.

Representative Dave Camp's aide won't give his wife a get (a religious divorce in Orthodox Judaism). Mark Oppenheimer explains why Rep. Camp probably can't force him to do it unless he wants a Civil Rights Claim on his hands. 

Does Congress have the authority to allow Americans born in Jerusalem to claim Israel as their birthplace? The Supreme Court doesn't want to decide, so they're going to let a lower court figure it out. 

At Salon, Linda Hirshman describes the New Hampshire GOP's evolving relationship with gay marriage. 

In Canada, the Ontario Supreme Court struck down restrictions on sex work, legalizing brothels in that province. 

A Federal Judge in Michigan acquitted militia members of sedition.

Andrew O'Heir writes a really interesting piece at Salon about the MPAA's strange decision to give a documentary called "Bully" an R rating, and the fight brewing about it. 

As you may have heard, a conservative organization had official plans to pit gays and blacks against each other. 

Violence, Vigilantes, and the Tragedy of Trayvon Martin

So much has been written and said about Trayvon Martin that I worry I can't say anything new. That the killing is tragic is obvious, that it was senseless seems clear to me too. I have no shortage of opinions on or anger against George Zimmerman. A ton has already been put out there about gun control and racism, more than I can either cover or adequately contribute to. Instead, I'd like to take a few paragraphs to speculate on the circumstances that make us want to take matters into our own hands. If the following seems to forget the inherent tragedy, I'm sorry. Possibly it's because I don't think I can do that part of it justice. But I do think I can say something about our relationships with institutions and how it instructs our senses of crime and justice. What would drive an electorate to enact something as radical as Florida's "Stand Your Ground" law, or to form an armed Neighborhood Watch, or - tragically - kill an innocent person while on that watch's patrol?

Looking to both our history and our fiction, some patterns emerge about vigilantes, self-help, and extra-legal justice. Let me suggest at the outset that, as a general matter, we turn to these measures when we find weakness or fault with our formal institutions. If "The Law" cannot or will not do what we want it to do, we find other ways to get done what we think needs to get done. Let me start with a quasi-historical example. What happens when the police won't take care of your people? If you belong to an ethnic group that gets ignored, that doesn't get fair legal protection? This happens:

I'm not exactly a mafia expert, and there are any number of explanations for the rise of the Italian-American branch (not least being the influx of immigrants affiliated with the Sicilian originals). But part of the emergence of protection rackets is the need for, well, for protection. The Irish in Boston and New York felt cut out of the formal institutions of law and politics, and lo and behold Irish gangs emerge. 

Consider too cases where battered wives kill their abusive husbands. Part of what constitutes Battered Woman Syndrome is a belief that your husband is untouchable, that the police cannot or will not intervene on your behalf. In such situations, with their backs against the wall, abused women take matters into their own hands and kill their husbands. I'm not saying either that they shouldn't have or that their husbands deserved it, but rather that something that contributes is the belief that the formal institutions of law cannot be trusted to bring about the appropriate outcome. 

This doesn't necessarily imply that the institutions are weak. In the case of battered wives, the police department may be quite strong, but (at least perceived as) unresponsive. Moving back to fiction, think about Unforgiven. Gene Hackman's sheriff isn't weak, he runs the town with an iron fist. But his concept of appropriate punishment for the men who mutilate a prostitute at the movie's outset doesn't mesh with what her friends and co-workers consider just or fair. The result?

They get together a purse and hire bounty hunters to track down and kill those responsible. In the face of an institution they believe is unresponsive to their calls for justice, they take matters into their own hands and aim to achieve the result they think best represents justice. 

This is reflective of a fairly common practice in the early days of our Republic and on the frontier, what Larry Kramer has termed "popular constitutionalism." When a judge handed down a punishment that was considered too light, too heavy, or not in accordance with popular perception of the Constitution, mobs would release prisoners from jail, or - in the opposite scenario - hang them. Yes, vigilante justice, but not unprincipled vigilante justice. It was popular interpretation of what the dictates of law and justice demanded, and seen as a corrective for the failures of formal institutions. 

This trope is popular not just in Westerns  - though I could rattle off half a dozen Westerns premised on violence and vigilantism and faulty institutions without batting an eye - but all over fiction. What do the following have in common?

They all responded to corrupt/weak institutions by providing their own brand of justice. In fiction it's tended to be men, but not exclusively:

In movies, fiction, and history, violent self-help and vigilantism are often responses to weak, rigid, corrupt or unresponsive formal institutions. Police can't get the job done? Step into their shoes. 

Which, in a roundabout way, brings us back to Trayvon Martin. I don't want to speculate too much about George Zimmerman, but his history of 911 calls and the specifics of the call he made before ignoring the advice of police and shooting Trayvon Martin strongly suggest that he felt the police were not doing what he felt they ought to do. In this case, it seems clear - at least to me - that Zimmerman's view was uninformed, inflected by racist beliefs, and amped up by delusions of grandeur. That he didn't even have to spend a night in jail is utterly inexcusable, and that Florida's law claims to be incapable of punishing such happenings tragic, misguided, and dangerous. We should be having the conversations we are having, about racism, gun-control, self-defense, etc. 

I hope, however, that we don't lose sight of the institutional angle. I suspect that many people who supported the Stand Your Ground law in Florida did so because they felt they needed to be able to take matters into their own hands more. I think the Neighborhood Watch to which George Zimmerman belonged was formed in part because its members felt the police weren't doing enough to protect them. And I feel certain that George Zimmerman felt the police weren't doing their jobs (whether he's wrong, and whether his views are as impacted by racists beliefs as I suspect doesn't change the fact that his perception of this truth contributed to the tragedy).

In political science, we tend to define "the state" as the monopoly holder of legitimate coercion and force. But anecdotally and historically, this isn't especially clear; I don't think it passes theoretical muster, frankly. And we ought not to ignore the fact that people step in to correct perceived institutional problems. If we do, we ignore the motivations of the world's George Zimmermans, and run the risk of more tragedies like that of Trayvon Martin. 

Weekly Round-Up for March 23rd

Some of the best and most interesting stories from the last week:

Emily Bazelon writes about the end of the Dharun Ravi/Tyler Clementi tragedy at Rutgers. 

Becky Supiano at the Chronicle of Higher Ed gives her take on the same case. 

At Salon, Amy Benfer reviews Jeannette Winterson's new book that touches on the social assumptions we make about male and female authors. 

At The Atlantic, a critique of Kenneth Arrow's famous critique of free-market healthcare. 

In Northern California, the Yurok tribe tries to maintain and rebuild it's own society (in a space created by our laws, but there's bound to be conflict, sadly).

Brian Palmer on neighborhood watches, crime rates and Trayvon Martin.

The New York Times on Trayvon Martin and the national response. 

More New York Times: "Stand Your Ground" and the Trayvon Martin killing. 

Salon on society, sexuality, and female power in Twilight and The Hunger Games, 

A lawsuit against law schools for inflating employment rates has been dismissed, reports the Chronicle of Higher Ed.

The Root argues that the Trayvon Martin tragedy ought to spur debate - and action - on stricter gun control. 

Lies! LIES I say!

I missed my opportunity to write about US v. Alvarez and the Stolen Valor Act when the Court heard oral arguments about a month ago, but I'll take a swing today at the idea of penalties for lying, more broadly. In keeping with the spirit of this page, I'd like to take some space to write about the ways in which we variously punish, tolerate, and even valorize lying in different social contexts. This is - obviously - an enormous topic, but let's give it a quick go.

[Background: The Stolen Valor Act criminalizes lying about military honors. Alvarez is a case before the Supreme Court wherein a California man lied about receiving the Medal of Honor, was convicted, and is now challenging the law on First Amendment grounds. Dahlia Lithwick did a really excellent job writing about it at Slate.]

Lies We Hate
As a first cut, it seems to me that the lies we truly despise are the ones that are aimed at either intentionally injuring someone, or are at least told without consideration for others. In the criminal context, we call it fraud.

When you intentionally deceive another for the purpose of your gain (or another's loss), the law may get involved (perhaps not as much as many wish it did...) But not all malicious lies are actionable, and even those that are don't usually result in suits. How many dirty rumors have been spread without a slander suit?


The dividing line doesn't appear to be hurtful/harmless. We can imagine lots of very hurtful lies that either aren't actionable or are at least rarely actioned. You could cruelly deceive a child - or adult, but child feels more visceral - into any number of things (I started typing some examples and just got depressed). This would make you an unquestionably terrible person, and anyone who was caught doing something like this would be ostracized. They would be duly socially punished for their lies, even though the formal law wouldn't deign to be involved.

Nor, as the previous example also illustrates, can we say that the formal law jumps in when lies reach some sort of morally repugnant Rubicon. Again, lying to a child with intent to disappoint or emotionally harm is - to my mind - obviously morally appalling. And yet many of us would shy away from criminalizing it.


Lies We Begrudgingly Accept
I'm certainly not breaking any new ground when I suggest that people may not be entirely honest when they are... let's say amorously motivated. I'm actually not sure if such lies are better put in this section or the next; after all, we went en masse to a movie entirely about lies two men tell to get women into bed and made heroes out of them.

But more to the point, we seem to accept the lies and exaggerations that make up singles bar flirtations as part of the cost of doing business. We discount what people say in situations where they have an incentive to bend (or break the truth)

We punish these lies, but not all the time nor often severely. A cad who develops a reputation as such will be punished by having the efficacy of his or her lies diminished, by having the veracity of even true statements questioned (pretty sure there's a story about this... a boy, a wolf, crying about it... something), and by just generally being considered a sleazebag.

Particularly in the age of instant information, big lies about things like the Medal of Honor (the issue at the heart of Alvarez) are just so easily caught out. If you tell me you won the Presidential Medal of Freedom, I'm going to ask what for, act impressed, and then google it when you go to the bathroom. The point is that these lies are treated like the fisherman who tells you she caught the big one.

Whenever someone tells you the size of the fish they caught, you subtract inches. (Whether we subtract inches from other boasted figures is... come on: this is a family blog.) But we don't think less of the fisherman most of the time, we just treat it as par for the course; it's an accepted lie. But it's not that these "accepted" lies don't hurt anyone. Maybe not the fish, but I think a compelling case could be made that telling some sorts of lies to get someone into bed "hurts" that person. I don't think that's the appropriate dividing line. As we'll see below, we occasionally valorize lies that hurt others.

No, I think we mostly draw the line at motivation. It's when a lie aims to hurt someone - or to enrich yourself with wanton disregard for others - that we judge the liar for his or her malicious intent, rather than for the lie itself. The lies we accept I think we accept because we understand the self-interest of the liar but don't attribute a devious or malicious intent to hurt others. We would judge Owen Wilson and Vince Vaughn's characters a lot more if they lied to women to get them into bed with the express intention of breaking their hearts later, rather than in an effort to find some no strings attached sex.

Lies We Like
There are times when lying is socially acceptable, even the preferred path. Lies to spare someone's feelings - white lies - might save someone needless angst. There are lies with noble purposes; few people - with apologies to Kant - would say it is never morally acceptable to lie.

Two final examples. First - and with an admittance that this is trite - bluffing. Because it's sanctioned by both the official rules and informal practices of poker, intentionally deceiving others with the aim of self-advancement is an admired skill.

On a more serious note, the ability to mislead others as to your aims and needs to secure an advantage is a taught a valued skill in the business world. Negotiators assume that not all is revealed and that misrepresentation will be a part of the game. And yes, fraud and negotiating in bad faith may lead to concrete legal action. But a certain degree of artful misrepresentation can be an admired - and lucrative -  trait.



The Problems with Alvarez
Just a few points to recap and tie this all to Alvarez. First, not all lies were created equally. Some are good, some are bad, some are really bad; some are illegal, some are irritating, some are celebrated. But the law at issue in Alvarez doesn't really do much to say why we ought to put lies about military decorations in one box rather than another. Much has been made of the fact that it doesn't hurt others, as we require of other criminalized lies like fraud and slander. But I'm not totally convinced this is a fruitful angle. While that does seem to make the Stolen Valor Act an anomaly, it skates right over the fact that there are hurtful lies we don't criminalize. Things are more complicated that might otherwise appear.

Congress seems to have just assumed that lying about such honors is a repugnant enough act that we would all agree it out to be outlawed. This is certainly debatable, but even assuming it is that repugnant, it seems pretty clear that mere moral repugnance isn't usually enough to criminalize speech. In fact, we have a pretty long, storied tradition of free speech in this country that indicates the contrary. Without getting any deeper into the tangled web of First Amendment jurisprudence, let me leave it at this. Lying about military honors seems to fall into the category of speech that we find troubling enough that we punish it socially, something akin to rampant lying at the bar that is bound to catch up to you. We also tend to err on the side of allowing speech when we aren't sure about criminalizing it. I'm not as concerned with the line-drawing that's consumed the legal commentariat, but I do think the conversation is lacking awareness of the social rules that surround lying. Take this as a small step in the other direction.

Weekly Round-Up for March 16th

As always links, to some of the most interesting stories from the week:

Stanley Fish writes a great, provocative piece in defense of double standards at the New York Times.

At Salon, an interview with author Julie Berebitsky about her new book on the future of sexual harassment. 

Richard Zack's new book details Teddy Roosevelt's efforts to clean up vice in New York, and the usually futile efforts of moralistic legal crusades.

Dahlia Lithwick takes Virginia to task for dragging its heels in failing to tell ex-cons that DNA evidence exonerates them after all. 

David Brooks explores some of the challenges we face with an aging world population. Surely some legal challenges loom as well.

Why do corporations fight disclosure regulations so hard? David Sirota tells you. 

Fascinating exhortation from Patrick Hruby for NCAA players to go on strike. Very provocative.

Law and Society in a microcosm: Amanda Erikson explains how rules and attitudes around playgrounds shape us.

Eight law firms added 20 new law schools to the list of those they are suing for deceptive practices in reporting job placement rates. 

Irin Carmon discusses the law, rhetoric, politics and society surrounding contraception. 

At the Atlantic, Julie Barnes explains how our laws are making us sick - not just of politics, but actually sick. 

Un-Saintly Behavior in the NFL

For those of you who haven't heard, it appears that the New Orleans Saints defense offered its players cash rewards for injuring opposing players. $1,000 for taking a guy out of the game, another $1,000 if they were carted off on a stretcher. Players like, say, Brett Favre.

So far, it seems almost all of the conversation can be summed up as either "this is utterly despicable" or "this happens on almost every team in the league." Let's brush past the fact that it's almost certainly both. I'm not interested in discussing whether this is okay or whether it's widespread; I don't want to pass judgment on the practice or determine how pervasive it is. I'm over it, and other people have done it better than I have anyway.

But there is another facet I haven't seen discussed that I'd like to take a look at. We have lots ways to resolve our disputes, ranging from rigid and institutionalized to loose and informal. We use one set of practices when we have a disagreement with a friend, and entirely another when we discover our employee has been embezzling money from our corporation. But the boundaries between these systems aren't always clear; in fact they're rarely clear. In, for example, a sexual harassment case, there might be legitimate claims to informally discuss the matter, to engage a corporate or university policy, and to invoke the official laws of the land. We have to navigate and negotiate the boundaries between these varied mechanisms.

The Saints bounty scandal sits in a space overlapped by three different frameworks of dispute resolution. Though it won't be invoked here, black-letter law is lurking in the shadows behind. There is, of course, the NFL's semi-formal institution and disciplinary body - which will have something to say about the scandal, and soon. And finally - but maybe most interestingly - players will impose their own brand of justice and dispute resolution on the field when the league resumes play in the fall.

The Not-Quite-That-Long Arms of the Law
Chris Kluwe (@ChrisWarcraft), Vikings punter: "You're talking about paying someone to INTENTIONALLY injure someone else. They put people in JAIL for that."

Generally, you can't sue someone when you get hurt playing football. In legalese, you "assume the risk" of the possibility of injuries inherent in the game.

A hard tackle, a wrenched ankle, broken wrist, torn ACL, concussion: these are things that happen to football players in the course of playing the sport, and there's no legal remedy against the person who hurts you.

But this is only true when what happens is within the bounds of the game. A broken nose from an in-game collision in touch football is one thing, but it's quite another if it's in a fight that breaks out in the middle of the game. That's not "part of the game" and might lend itself to legal remedies. This raises tough questions about actions at the boundary. How long after the whistle would a tackle have to be for  us to think that it might be outside the boundaries of the game? In hockey, fights are a part of the game. Oddly enough, the fact that there are penalties and rules that address its illegality is evidence for the fact that it's contemplated by the game. A few years back, when Todd Bertuzzi punched Steve Moore in the back of the head in an NHL game

one question in the resulting tort litigation wasn't "is fighting part of hockey?" It was assumed that it was (can you imagine a suit for battery after a hockey fight?); the question was whether this kind of fighting is part of hockey, and thus immune from suits. (The suit was dismissed as a matter for Canadian courts; it's still pending in Ontario).

The courts won't get involved in the Saints fiasco, but we wouldn't have to change to many things for that to be a possibility. As far as I can tell, the Saints were trying to injure people within the confines established by the rules of the game; what if they weren't? What if there were hits either egregiously late or well out of bounds?  And, regardless of legal doctrine, you had better believe that if someone had been seriously injured (like, "career ending injured") or possibly even killed (perish the thought), that lawsuits would ensue. There would be suits against individual players, against coaches, against teams, and against the league. The dispute would spill over into our official legal system. This is something the NFL obviously doesn't want to happen. Which brings us to...

The Shield. No, not the TV Show; the OTHER Shield
This one:

The National Football League, as a private organization, is ceded deference by courts to run its own authoritative disputing process. Which is to say that when a team does something against the rules  - as the Saints have done here - the NFL gets to punish them and the Saints don't get to do anything about it. This is not the law of the land (the NFL can't tell you what to do except when you use their product in some way), but it exists in part because the law of the land allows it to exist. It wouldn't be much of a disciplinary system if a team like the Saints could run to the courts every time the NFL did something it didn't like. But they can't. The courts will say "no, turn around; you've agreed that Roger Goddell has authority here, and you have to live with it."

So, what will Roger do here, with his quasi-legal executive authority?

He's going to bring the hammer down, and he's going to do it soon, I would bet. He's made such an issue of player safety (whether or not it's just a pose is a different conversation), that he can't let this go. The New Orleans Saints are going to be fined, maybe seven figures. Saints coach Sean Payton may be fined, may be suspended, ex-defensive coordinator Gregg Williams is going to be fined and suspended. Defensive captain Jonathan Vilma is going to be fined and suspended, maybe other players too.

It's not the law, but it's law-like. It has a legalistic process, and it has real consequences. As a dispute resolution mechanism it's not that different than police and courts, and it owes some measure of its authority to the fact that the courts have its back. But importantly, choosing between the "official" disputing institution and the NFL isn't an either or proposition. Not only does one prop up the other, but you can use both at the same time. They're overlapping legal systems (so long as we use the term broadly).

It Makes Sense that there are Teams Called the Vikings and the Cowboys
Why? Because this has all the elements of a brewing feud, of frontier justice in the making. The NFL at least has the trappings of a formal institution: a process, and executive authority, etc. When people take things into their own hands, it's not necessarily anarchy; sometimes it's just an informal institution. This happens in sports all the time. Anyone who's a baseball fan knows that if your team's star player show's up a pitcher after hitting a home run

he's probably going to get a baseball thrown at him the next time he's at the plate.

Sometimes that's the end of it, sometimes the opposing pitcher throws at the other team's star player. Usually it ends with the "official" justice system - the umpire - getting involved and warning both teams to cut it out. In hockey, fights are part of the culture, and there's absolutely a set of rules that govern who you fight and when you do it. Someone blind sides your star, you go after their star, you settle it with a fight, and much of the time that's it. Penalties are issued and they call it even. But sometimes bad blood persists and a longterm feud erupts.

Happens in football too. Here's what former NFL safety Nick Ferguson said in the wake of the Saints scandal:

"[Pittsburgh Steelers WR] Hines Ward was going out, taking out unsuspecting defensive players, and I didn't need anyone to tell me... I knew that the next time I played the Pittsburgh Steelers, I owed Hines Ward."

The language here is really interesting, because it has all the hallmarks of a feud. For one, the formal institution is insufficient. What someone like Hines Ward does is not illegal - he's not going to get fined or suspended - but it's against a "code" and he needs to pay for it, it's "owed."

There's one more thing. In a feud, whether it's in baseball or the Hatfields and McCoys, you don't have to hit the guy who hit your teammate. You just have to hit one of his teammates. Again, in baseball, if your guy get's thrown at, you don't throw at their pitcher, you throw at someone else on their team that's the rough equivalent. It's about balance. The point is that these feuds have their own rules and practices. They are also a form of dispute resolution, one that exists alongside the more formal ones outlined above. The Saints scandal exists in a space where all three "legal" systems govern some part of it or another. The "real" legal system tells us what kind of behavior is within the NFL's purview and what's not, and gives heft to the NFL's reaction. The NFL is going to impose sanctions to try make sure this doesn't happen again, and impose suspensions and fines on the wrongdoers. But that won't satisfy players. They know their guys were targeted, and probably don't think that justice has been quite fully done.

Which means this: next year, the Saints are going to get paid back on the field, and it won't just be the defense. Right or not, the Saints offense is going to get hit for this. And if I were this guy

I would be nervous.

Weekly Round-Up for March 9th

Here are links to some of the week's most interesting legal-ish stories:

Phenomenal blog post by Aaron Bady at "The New Inquiry" about privilege, the public space, and what Rush Limbaugh's attack on Sandra Fluke is really about. 

You may have a right to an attorney, but you don't necessarily have a right to nit-pick his/her tactics. 

Laura Miller at Salon reviews a new book by Elaine Pagels that puts the Book of Revelation in its political context. 

Another Salon review (Brooke Allen reviewing Lucy Worsley's If Walls Could Talk) discusses - among other things - the role that social and legal understandings of privacy have literally shaped the homes we live in. 

The Virginia Supreme Court has rejected the Governor's request - demand - for documents from a prominent climate scientist. 

Great TED talk by Bryan Stevenson about racial injustice in the American judicial system.

The Colorado Supreme Court says state law requires the University of Colorado to allow those with permits to carry concealed weapons on campus. 

At Slate, Nathaniel Frank examines social change and resistance to gay marriage reform (and the evidence about its effects). 

New technology, same anti-trust law; the Feds may sue apple for jacking up e-book prices. 

Sometimes too many laws slow down innovation, or so says Jim Cooper in The Atlantic. 

A school district in Minnesota has settled an anti-gay bullying case and agreed to change it's policy. Social change?

Not so much with the social change? Over in Egypt, the LGBT movement is fading. 

It turns out that laws affecting the cost of contraception affect how much sex we have, or at least how much contraception we use. The results aren't what Rush Limbaugh thinks they are. 

Aaron Bady at The New Inquiry

This post on privilege, the public space, and what people like Rush Limbaugh are actually upset about is too good to leave until Friday's round-up.

http://thenewinquiry.com/blogs/zunguzungu/the-deep-resentment-of-having-to-think-about-it-rush-limbaugh-and-sandra-fluke/

Why George Clooney Wants You to Read This Blog

In honor of last weeks Oscars - we had last week off here at Michigan - today's post tackles law at the movies. I want to give you a better feel for what this blog will more typically be about, and to do so I aim to convince you that The Descendants is not just influenced by law, but is in fact ALL about law.

[There's discussion of a TON of plot details below, so if you haven't seen it, you've been warned.]

George Clooney is Matt King, descendant of Hawaiian royalty and socialites, heir to a land-trust on Kauai worth a half a billion dollars, father to two young girls, and husband to a comatose wife. He's a real estate lawyer, but don't get me wrong: the movie isn't really about law - it's not a legal thriller, not a courtroom drama. But law has it's fingerprints all over the film. Clooney knows law is everywhere you look.

More specifically, two of the movie's three major plots are not simply influenced by law: their narrative arcs take place in a space that is totally constructed and constrained by the law. For one, the extended King family is deciding whether or not to sell their 25,000 "pristine" acres. For another, Matt and his two daughters - not to mention all of their friends and family - have to say goodbye to their dying wife/mother, make their peace with her faults and misdeeds, and forgive her for them. Again, neither is necessarily about the law, but both stories occur in a framework that is not simply touched by law, but constituted by it. Let's take a look at each.

I Tried to Make This Heading Amusing, but Land Use and Estate Law Just Isn't Funny


Matt King and his relatives are trustees to land in Kauai worth $500 million. It's really pretty.



That's a lot of dough, and many of the relatives are happy to sell a) because they've squandered their inheritance and are eager for the cash, and/or b) the trust dissolves in seven years and they'll have to sell anyway. Matt is the sole executor of the trust - after all, he's the real estate lawyer (he even mentions the Rule Against Perpetuities early in the film). So though he's involving his family in the process of hearing and evaluating bids on the land, it's his decision.

Here's the thing: when he decides not to sell, the decision is a personal one, an emotional one. He's clearly been moved by the fact that his youngest daughter doesn't feel she has ties to it. He also notes - this is interesting  - that they were "entrusted" with the land but have "done" nothing to own it. It's an expansive - and definitively extra-legal - definition of "ownership," one that speaks to stewardship, conservation, care, family ties, and mixing one's labor/love with the land (shout out to John Locke). The reasons he gives for wanting to keep the land are about kin, they are sentimental... they are personal, not legal.

But there's no doubt that his choice is made in space bordered by legal reasons. For one, his very ability to unilaterally make the choice is predicated on his status as the sole legal voice of the trust. Without this simple legal construct, it would have been a very different movie. Put that in the hopper with a few other considerations: he must, as a real estate lawyer, believe he can convert the trust at some point in those seven years and preserve it for his family (otherwise his climactic speech would make a lot less sense); his relatives, spearheaded by Beau Bridges

make it clear that they have legal resources at their disposal as well. Beau tells him "just because you're a lawyer doesn't mean that the rest of us will be afraid to come after you."

My point is that as a lawyer, George - I mean Matt - knows all this. Heck, even if he weren't a lawyer, he would probably know all or most of it. The legal terrain moulds the options that are open to him, and influences how desirable those options look. He knows it will be rough with his relatives when he decides not to sell and that he may face lawsuits from them, but that that's okay. It may be tough to negotiate and alter the legal status of the land so that he can keep it, but that's okay too. It's worth it, at least to him, to face down these troubles if it means owning up to his family legacy and preserving the memory of his ancestors to pass on to his descendants.

Again: it's not that this constitutes a legal drama. It's rather an urge to see that the all-too-human dramas that unfold do so against a backdrop structured by legal rules. His legal status, the legal status of the land, the possible legal claims of his relatives, these all inform, shape, and influence the personal and emotional aspects of the decisions he and others make about their inheritance.

A Funny Heading About End of Life Decisions Would be in Poor Taste


With the exception of the first 30 seconds of the film, Matt King's wife Elizabeth is a coma for the whole movie (after hitting her head in a boating accident). Now, let's put aside the questions of who might be liable for injuries during a speedboat race (Were there waivers? Are they good ones? Is it the driver? The person who was supposed to be driving? The club hosting it? Was something wrong with the boat? Any Torts prof is salivating right now at the wealth of possible exam questions). What I'm after here is the fact that another of the movie's central dramas is structured by a legal rule. In this case, it's the Advance Healthcare Directive Matt's wife executed that requires her physicians to pull the plug if she's in a vegetative state (no matter what her family would prefer).

Which means that Matt and his daughters


must say goodbye, and that Matt must make his peace with the fact that his wife had an affair. Not to get too repetitive, but these emotional dramas are once again predicated upon a particular legal reality. Without the legal obligation the Directive places on Elizabeth's physicians, it's possible the drama wouldn't play out at all, and it would certainly play out differently.

Matt and his daughters don't especially care, I wouldn't think, about the legal vagaries and niceties of an Advance Healthcare Directive. Nor should they in this instance. What rightly matters to them are their emotional entanglements with their wife or mother, or with each other. My point - again - is rather that these emotional dramas bubble to the surface because of the Directive Elizabeth executed. That legal reality grounds the entirety what comes after.

Of course, if the Directive didn't exist, a different set of legal rules would impose themselves on the situation. Matt would presumably have Durable Power of Attorney, and would have to make some medical decisions. This legal construction would not only affect his life in a real way, but would certainly color the relationships he has with his daughters, with Elizabeth's father, with Elizabeth's lover, with her friends, etc.

And also etc., etc., etc...


Other legal influences abound. Matt finds his daughter drunk and out after curfew at her boarding school. Did the school breach their duty of care? To her? To him? She's also perhaps trespassing and certainly breaking school code and state law. Her friend Sid tells Matt that he "always has weed." State (and federal) law again. In one of the most satisfying scenes of the movie, Matt's father in law punches Sid.

Battery, for sure, but I can imagine a 1L Torts discussion where we argue whether or not the fact that he tells Sid "I'm going to punch you" constitutes assault, or rather mitigates the fear required for assault (for those of you who haven't been subjected to a 1L Torts class, Assault is being subjected to a reasonable fear or apprehension for your personal safety). Heck, if I wanted to be really silly, I'd wonder whether or not Angelina Jolie has a case against Descendants screenwriter Jim Rash for copyright infringement.


My aim here is not to try to make everyone look at everything like it's a Torts exam - I'm not that cruel - but to consider the ways in which law shapes the terrain of our everyday life, even (or especially) when we're not looking. There's almost always some aspect of a scenario that is in some important way inflected by our laws. In the middle of the movie, Clooney has this exchange with the man who slept with his (Clooney's) wife:

"It just happened."
"Nothing just happens."
"Everything just happens."

No matter who's right, no matter whether things "just" happen or not, one thing's for sure: they always happen against a background woven by our laws. 

Weekly Round-Up for March 2nd

Be sure to check in on Monday, when I'll explain why George Clooney wants you to read this blog.
Here are some of the best and most-interesting law related stories from the last week:

Hollywood-FBI crossover? You got it: Gordon Gekko is doing white-collar crime PSAs. The Wall Street actor helps the FBI fight crime with publicity.

Something involving The Alien Tort Statute could easily be a little too "law" and not enough "society" for my tastes, but here Stephen Wermiel does a great job looking at a new SCOTUS case and the way that international norms wiggle their way into our laws and courts.

At Slate, Dahlia Lithwick takes her angle on the same case. 

Also at Slate, Richard Thompson Ford argues that the Court should never have taken Fisher... or Grutter, or Bakke... in fact, it should stay out of affirmative action altogether. 

The Chronicle of Higher Education reports that a new paper suggests law school deans may be liable for mail and wire fraud, conspiracy, racketeering, and making false and misleading statements in US News and World Report. Here's a link to the paper's abstract at SSRN. 

Is Obama's Department of Justice intentionally letting the Voting Rights Act wither on the vine? Will Oremus thinks so. 

Don't be fooled by the changes to the Virginia ultrasound bill, says Dahlia Lithwick: it's still well beyond the pale. 

At Salon, Justin Elliot suggests the NYPD has broken state and federal law in spying on mosques. 

Robert Andrew Powell wanted to write a book about soccer. In this interview with Steve Almond, he explains why the book is about Ciudad Juarez and the proliferation of violence in a city with weak formal institutions, and strong, warring informal ones. 

Professor Thomas Schaller writes at Salon that formal law and politics haven't kept up with social change over the last decade.