It is a useful coincidence that the 119th anniversary of Emile Zola’s J’Accuse occurs exactly a week before the inauguration of Donald Trump as the 45th president of the United States. As viewed by the greater French writer, Anatole France, the trumped-up Alfred Dreyfus case (Zola risked his career writing in support of the Jewish artillery captain) was all about the creation of “false facts” towards political ends.
Anatole France
The Dreyfus Affair, as it’s inevitably styled, roiled France at the turn of the twentieth century, exposing a brutal French dialectic, pitting the often anti-semitic and anti-Republican Establishment against those who came to be called, mostly derisively, “intellectuals.” The upshot, following two trials and the rehabilitation of Dreyfus after it became irrefutable that he had been framed by anti-semites (never mind that the culprits were still regarded as heroic and never prosecuted), was the 1905 Law Concerning the Separation of Church and State, an anti-dialectic at the state level, now enshrined in the French constitution and rigorously enforced as official laicité. Of particular interest, especially given my theory of justice as nostalgia for an Edenic paradise,* is Anatole France’s “Crainquebille,” a short story (available in translation here) that some readers say grew out of the author’s almost obsessive interest in the Dreyfus case.
Unlike the army captain, who never flagged in his stoic patriotism and dignity, an Other who would be Establishment, Crainquebille is dirt poor, a street-hawker who knows his place, which is compliant and humble. He lives in a closet, with chestnut sacks as bedclothes. One morning, his regular customer, a sour cobbler on the rue Montmartre, decides to buy some of his leeks, “the asparagus of the poor.” She takes the stalks into her shop to get Craniquebille’s money, but is distracted by a customer of her own. As Crainquebille waits at his cart, he causes a traffic jam. Police Constable Matra, Agent 64, tells him to move along, and Crainquebille explains that he is waiting to get paid. Inasmuch as he regards civil authority as godlike, he is anxious about talking back in this way, but “does not understand that the enjoyment of an individual right does not excuse one from the fulfillment of his social duty.” Twice more, the police officer tells him to move along. Tearing at his hair under his cap, in “despair more than rebellion” Crainquebille hollers: “But I told you I’m waiting for my money! Just my bloody luck! God help me!”
Agent 64 takes this personally, “and as, for him, all insults took on a traditional form, regular, sacred, ritual and, so to say, liturgical,” he hears it as, “Death to the pigs!” (“Mort aux vaches!”) He arrests Crainquebille, who realizes that he said no such thing, but accepts that he must have done so insofar as an agent of the state says he did. Although an educated passerby, a prominent physician and officer of the Legion of Honour, intervenes to contradict the officer and testifies for the accused at the trial, Crainquebille is convicted, never mind that the courtroom is reduced to laughter when Agent 64 contends that the physician – whose surname, Matthieu, happens to be the first name of Dreyfus’s brother, an ardent advocate in Alfred’s defence – also yelled, “Death to the pigs.” Crainquebille is sentenced to two weeks in jail and a 50-franc fine, which latter is paid by an anonymous patron (presumably Dr. Matthieu).
The disdain for “intellectualism” as against custom and ritual (in the Dreyfus affair, the artistic community against the bourgeois establishment and its church) is satirized twice more. In a section entitled “Apology for Mr. Justice Bourriche” (the trial judge), a lawyer argues that facts are dangerous sophistry and perfidious enemies of civil justice and military justice. Mr. Justice Bourriche is too much of a jurist for his decisions to depend on reason and science, given that these would be subject to eternal dispute. He bases his rulings on blind dogma and the foundation of tradition, such that they are equal in authority with those of the Church. His judgments are canonical, ex cathedra.
Humanity (justice) doesn’t enter into it. It is not Matras the man who makes the accusation against Crainquebille, but a number, Agent 64, and numbers are incorruptible, “pure idea.” “Justice is force,” finally; all society depends on this. (Arguably, this is true even of earthly “paradisal” justice, if we use Eden as a model.) Otherwise, it has no power to impose itself. Society, law and order, are incommensurate with empathy or compassion. Justice is “administered with fixed rules and not with shuddering flesh and intelligent clarity. Above all, it does not ask to be just; as justice, it has no need, and I will tell you that the idea of a just justice could take root only in the mind of an anarchist.” As with Dreyfus, les raisons d’état (state interests) trump individual rights and freedoms.
Crainquebille finds prison cozy – clean, nicely designed, with regular meals. While incarcerated his only concern is for his pushcart, his living. He is otherwise content: “Just as a little boy who goes to catechism recognizes that he is guilty of the sin of Eve, this poor old man believed himself guilty of having mysteriously [mystiquement] offended Agent 64. His arrest has taught him that he had cried ‘Death to the pigs!,’ so he must have cried ‘Death to the pigs!’ … He had been transported to a supernatural world. His conviction at law was his apocalypse.” Under both religious and secular law, sin and crime, human suffering is not just a part of God’s and Caesar’s plan, but a matter of ecstasy. And at the apocalypse, we are redeemed by absolute justice from the grip of mortal law. We must be patient.
The coup de grâce, of course, is that if prison has become a sort of substitute paradise, a reconstituted, poetic vision of justice for Crainquebille, there is no going back. After his release, all is ironic nostalgia. As an ex-convict, he has lost his customers and is sleeping in his cart. In his attempts at Paradise regained, which is to say another arrest and jail-term, he seeks out a gendarme and deliberately hollers “Death to the pigs,” dealing this time with no Agent 64 but a world-weary cynic, who simply tells him to move on. Crainquebille is stranded outside the barred gates of Eden, constituted as a prison cell. His “free will” is ironically more circumscribed than ever, just as we find it to be in a world where increasing technocracy, and sometimes our own political choices, constantly impinge on the freedom they pretend to improve.
Thus are the lies at the heart of injustice normalized, or even made to seem perfect justice, lies “factualized” – something to keep in mind in light of the political sea-change seven days from now.
* See, e.g., last week’s post, here, and the related posts and materials mentioned there, as well as the Justice page of this website.
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Perhaps the most worrisome risk of the new nativism – Brexit, Trumpism, and the nationalist, protectionist, and racial-purity movements generally – is the potential that the gap between law and justice will widen. The gap widens because of a commensurate narrowing in our concept of duty, legally and morally – duty to others and to ourselves being the bridge between our legal systems and ideal justice.
Legal duty is generally material: I clear the ice from my walk so that my neighbour doesn’t slip and fall. Given that 
justice adds a moral component to law, a just duty is both legal and moral: I give to the food bank so that my neighbour doesn’t starve (although there is no legal requirement that I do so). In the last several decades, the community-centred concepts of honour, duty, and even everyday civility have given way, popularly, to unrelenting self-assertion and self-promotion. This is corrosive of the civilizing instinct: in narrowing duty to ourselves and our immediate circle (even if it is a wide one, as with protectionist nationalism), we are adopting a sort of tribalism that otherwise expresses itself in cults and gangs. We obliviously plump for devolution to smaller, contentious groups – survival of the fattest.
How might we address this fundamentally at law? Happily, there exists a comprehensive “perfectionist” definition of justice that neatly combines law and morality without the need of fundamental overhaul to our existing legal systems or of Rawlsian intellectual legerdemain. This approach does not concern renovation, revolution, or complex philosophical formulae; it simply engages human capability or capacity, at its highest, most flattering, contractarian reaches. I am thinking of the approach Harvard law professor Lon Fuller sketched in the 1940s, in his The Morality of Law, elaborated in some respects in Belgium by Chaim Perelman.
Fuller juxtaposes formal legal duty – undifferentiated rules by which “like is treated alike” – against “the morality of aspiration,” what Perelman would call substantive or concrete justice and what I propose as integrated or perfected justice, utopian in principle but proffered here as, ultimately, a practical original position (as opposed to John Rawls’s more complex, artificial, and ultimately impracticable original position for a just society). For Fuller, aspirational or substantive justice is “the morality of the Good Life, of excellence, of the fullest realization of human powers.” It precedes rules of duty, informing them at their heart. The importance of this is that legal duty can be the bulwark of an unjust society, as with Hitler’s Nuremberg laws or racial-segregation legislation in the United States. Therefore, justice must precede and integrate with law, not be dictated by it.
For Fuller, legal duty is material, “pressure” which “leaves off where the challenge of excellence” – the morality of aspiration – begins. (As I wrote in my first post here, however, my own view is that excellence in justice implies duty at a level more demanding than that of conventional legal “reasonableness.”) Aspiration is perfectionist, utopian, the reach that must exceed our grasp. The requirement that justice reflect the most highly evolved standards of civilization (that we pay justice at least the same attention we accord science, technology, sports, and entertainment in our everyday lives) is the absolute in the equation, and therefore more or less predictable and objective. Otherwise, the standard of “perfected justice” would be too subjective or vague – and yes, idealistic – to be of any value. Its actual form is flexible, within the absolute category of civilization, to meet the practical, reasonable limits of human capacity and society.
“The morality of aspiration,” Fuller explains, “is most plainly exemplified in Greek philosophy. It is the morality of the Good Life, of excellence, of the fullest realization of human powers. In a morality of aspiration there may be overtones of a notion approaching that of duty… . Generally with the Greeks, instead of ideas of right and wrong, of moral claim and moral duty, we have rather the conception of proper and fitting conduct, conduct such as beseems a human being functioning at his best.”
Obviously, such a vision of justice cannot help but be stuck in the aspirational, incapable of absolute achievement. But this impossibility should be the motive force in modern developed societies, a motive force behind civic duty. It is the striving, the “audacity of hope,” to use Barack Obama’s phrase, that has built great democracies across the world, including, we must recall at this signal “populist” moment, the United States. Each attempt to realize the ideal brings us closer to it, even as it avoids us. Recall again an earlier post here on playing Beethoven aspirationally, and consider my own theory of perfected earthly justice as nostalgia for an Edenic paradise. (See, e.g., my The Structures of Law and Literature. In addition to the link, see the “Books” page on this website.)
In an era when more people can read and write than ever, of immediate access to the world’s greatest art, music, and literature, we have come, bizarrely, to attribute success (more than ever) with material acquisition and self-aggrandizement. Donald Trump and his nativist cohort are icons for this. (It is no accident that both Mr. Trump and Mr. Berlusconi are media and development tycoons.) We can only hope that our experience with Mr. Trump as a world leader will bring us to our senses, reminding us of what civilization, and justice, really consist. Otherwise, what the founders of North American democracy called “the pursuit of happiness” will amount to nothing more than starring in our own very grim reality show.
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For many of you, the idea of kicking back over the holidays with “lawyer shows” might seem a busman’s (airline pilot’s?) vacation. But I’d submit that what follows – my picks for the best English-language TV shows about lawyers and law practice – transcend the genre: they’re excellent dramas (mostly comedy-dramas) simpliciter. Besides, even when they’re about barristers behaving badly, they remind us that the law can be a profession of champions. They’re all about bridging the gap between law and justice.
Such a ranking is of course a matter of personal taste. So here’s my “qualification of ‘experts’” submission as a
John Thaw as James Kavanagh, Q.C.
preliminary to my boob-tube advocacy: I offer up these suggestions as a lawyer who has practised at firms small and large, and who has spent most of his career writing about law and society and law and culture, teaching law and culture in law faculties, and laying out a whack of his savings as an unusually avid consumer-collector of these shows. (I even own DVDs of the obscure and fluffy “Law and Disorder,” starring Penelope Keith (of “To the Manor Born”), which never made it beyond its first season (despite an auspicious if fluffy beginning), “Garrow’s Law” (a slow-moving, often awkward dramatization of William Garrow’s practice at the Old Bailey in the late eighteenth century), and the pre-Rumpole Rumpoles, from the origins of the “Old Bailey hack” in John Mortimer’s play, The Dock Brief.)
Four of my five picks are from the U.K. (three from England, one from Ireland), with an Australian production tied for first. Certainly Canada and the U.S. produce entertaining shows in this crowded genre – “Street Legal,” “This Is Wonderland,” “Boston Legal,” “Allie McBeal,” “L.A. Law,” “The Practice”), but they are self-consciously quirky, extravagantly BIG and bizarre, never mind that the producers have selected litigation as a natural theatrical setting that in itself focuses our most challenging experiences down into dramatic tension and catharsis. Really the North American shows don’t achieve the aesthetic quality of even the British and Australian second tier – “Silk,” “The Accused,” “Criminal Justice,” “The Jury,” “Janet King,” and so on. (To my mind, these latter stand up to repeated viewing but are a little too anxious to attain pop appeal.)
One further bias I should specify: I can’t watch the “Law and Order” shows; for me, they’re too Hollywood and stodgy-stagey. The top (in my view) British producers show us law practice pretty well as it is, with modest allowances for the greater, more focused truth of fiction. Of course in their heroism or tragicomedy the protagonists are bigger than we are, but close enough to us that the narratives really resonate. That’s what good drama is.
My top five, in reverse order:
5: “North Square” This engaging show, set in a Leeds barristers’ chambers, ran for only one season, in 2000. But it features Phil Davis, riveting in everything he does, usually with his id barely under control (as here), which quality makes him a favourite of the film director Mike Leigh. Davis plays the clerk to this group of young lawyers (the administrator who in Britain runs the law office and curries favour with solicitors to get his bosses work), running their chambers as though it were a Mafia family. He is desperately loyal, and expects the same from his barristers and staff. In this respect, he is a bit of an archetype in law practice drama, the “support staff” who’s often the real force behind the enterprise. But this iteration of the archetype has added depth insofar as the lonely, manipulative clerk tries to compensate for his shambolic personal life by inserting himself into the private doings of his barristers and underlings. The writer is Peter Moffatt, who also created “Silk” and “Kavanagh, Q.C.” Expect franker representations of sex and street language than we get in North America. At this writing, Amazon.co.uk has boxed sets at competitive prices.
4: “The Irish R.M.” And now for something completely different. Although the cast features many fine Irish actors, the scripts, based as they are on the Somerville and Ross stories of the early 20th century, do not cater to 2016 notions of social correctness. They depend heavily on stereotypes – horse-trading, drunkenness, laziness, poetry – all in the service of setting the rural Irish against the toffy-nosed, “colonial” magistrate from London, played by Peter Boyle (Guthrie Featherstone, Q.C. on the “Rumpole of the Bailey” series; he is even more benign and sympathetic here). While embodying every one of the stereotypes as co-starring drunken roustabout, Niall Tobin – whom you might recall as the bishop in “Ballykissangel,” – implies in the DVD extras that they put even him off a bit. Then again, while playing the magistrate’s crafty landlord, Bryan Murray manages archetypally (if not stereotypically? – think “Ballykissangel” again) to work both sides of the undeclared war, usually to the benefit of the locals, and especially of himself. In other words, the locals generally get the best of things, and the real archetype is the overlord as arrogant dupe. The adaptation is faithful to its cozy literary source, the stories are unfailingly funny and entertaining, and the acting, direction, and photography are first-rate. Even the theme music is appropriately artful, setting the jig “Haste to the Wedding” against a military-style fanfare, complementing the archetypal folk versus overlord narrative. One episode includes a great Irish traditional band featuring Jackie Daly on button accordion. Adapted for television by Rosemary Anne Sisson.
3. “Rumpole of the Bailey”This long-running series (1975-1992) of hour-long episodes shows us the eternal junior barrister as champion of the little guy, convinced that crime is largely a creation of the class system, albeit while Horace Rumpole more or less comfortably (and often ruthlessly) exploits that system himself, never mind that it constantly turns on him. Can there ever be another Rumpole after Leo McKern, who inhabits the character as an alter ego? I have it directly from creator Sir John Mortimer that McKern was for some time afraid of the role’s ruining his career by typecasting him. In any event, I, for one, awaited every new Rumpole book and series with the highest anticipation, no matter that they’d become clichéd and predictable, and no matter that at trial Rumpole was (unrealistically) too often opposed by members of his own chambers. The stories remain comfortable and comforting – a reminder that though life is largely frustrating and disappointing for the (self-declared) idealist, when he sticks to his principles he can do some good, if rarely getting credit for it. (Interestingly, every barrister in my top three views himself, and is viewed in his legal community, as a rebel.) Rumpole’s conservatism, despite his pretensions to being a revolutionary, in some ways dates him; but if that troubles you, you won’t enjoy anything on this list except probably the next entry. (None of the others is for historical revisionists, although the next two picks are very modern indeed.) Amazon generally has boxed sets available at a good price.
Richard Roxburgh in “Rake”
2. – tied for first (more or less) “Rake”If you haven’t seen the original Australian version of this show, set in Sydney, you’re in for a rare treat, with enough vulgarity and brashness that you know it would not get made in North America or even Britain (probably not even on cable or by the new digital producers). Richard Roxburgh is superb as the coke-snorting, whore-mongering, gambling, bad-lot-associating, tax-dodging, contemptuous (but not really contemptible: he’s the original charming rogue) barrister. “Rake” has been through four series now, with a hint that another is on the way, in which Roxburgh’s character, Cleaver Green, will (unavoidably) take on a new line of work, one step nearer the Law writ large. (It looked as if it were all going to end with the spectacular accident that concludes the third series, but no one would have that. Mind you, the fourth series is probably the weakest of the lot, although still very well crafted.) As with the other series on this list, the brilliant scripts and the wonderful ensemble cast help make it all possible. Written by Andrew Knight and Peter Duncan (and created by them with Roxburgh). And yes, talk about sex and foul mouths. You’ll be shocked, but laughing. (At this point, you can get boxed sets of seasons one through three, with season four available separately.)
1. “Kavanagh Q.C.”John Thaw (who died at sixty in 2002) is probably best known for his TV interpretation of Colin Dexter’s Inspector Morse, but to my mind he’s just as good, if not better, as the successful barrister James Kavanagh. The show is notable for many strengths, most remarkably for how it manages to be first-rate drama (each episode feels as if it’s an intelligent film) never mind its fidelity to the law of evidence and Anglo-American trial procedure. As with the other series in this ranking, the compelling, timely stories (by Peter Moffatt) intermingle the characters’ personal and professional lives, making graphic the sometimes stressful interplay, including the resulting tensions in chambers. Nicholas Jones is wonderful as the infrequently sympathetic Jeremy Aldermarten, an upper-class twit-barrister who, in one memorable episode, plays the judge in a bar-and-bench production of Gilbert and Sullivan’s “Trial by Jury” while juggling a deeply compromising relationship with a former client. Several episodes include skirmishes over “workplace diversity.”
This program ran for six series of movie-length productions (1995-2001), with not a clanger in the bunch. Again, it features a top-notch ensemble cast, many of whom you’ll recognize from other series (e.g., “The Jewel in the Crown’s” Geraldine James), and, sure enough, with Cliff Parisi playing that archetypal front-line clerk (as in “Rumpole” and “North Square”) who keeps the firm on the straight and narrow while quietly struggling with personal life-crises. Several boxed sets are available.
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[Note: This is a cross-post on both my music and law blogs, with minor changes mutatis mutandis.]
Where sometimes we despair of justice, our culture can provide a magical solution. In my law and literature course we consider supernatural rescue in the work of the French writer Marcel Aymé. His story “Dermuche,” for example, concerns a poor simpleton who murders some pensioners for a recording he covets. On death row he exhibits an obsession for “the baby Jesus” (who to his mind conveniently dislikes pensioners), and on Christmas eve he transmogrifies into an infant himself. The authorities guillotine him anyway on Christmas day – only for his lawyer to discover that the pensioners are back among the living. Everyone except, perhaps, the state is redeemed, never mind that the pensioners suddenly can’t find that recording they used to play every Sunday lunchtime. (Read my translation of this unusual Christmas story here.)
Then, too, we look at Cynthia Ozick’s The Puttermesser Papers, tracing the history of the magical golem as a champion 
of justice for persecuted Jews, and at traditional British ballads – “The Twa Sisters,” in which the fairer, jealous sister drowns the darker and looks to get away with it until travelling minstrels visit the court with a harp they have made out of the corpse. The harp sings out the details of the crime as the murderer and her family listen. Then again, in “Bruton Town,” brothers murder their sister’s suitor: he is a servant and supposedly beneath her. The suitor’s ghost visits the girl in a dream, to report the crime.
As the winter holidays approach, I have been thinking about another instance of justice as magic, in a lovely traditional carol, an antidote to the commercial pap we’re subjected to each December. Over the years, “The Cherry Tree Carol” (a.k.a. “Child 54,” for its appearance in the second volume of Francis James Child’s The English and Scottish Popular Ballads) has enjoyed popular attention, although you don’t hear it these days. Said to have originated in medieval “mysteries,” and based on an apocryphal account of the Virgin Mary’s pregnancy, it has featured on recordings past by Joan Baez, Judy Collins, PPM (Peter, Paul, and Mary), Shirley Collins… . But my personal favourite is the Pentangle version, on their album “Solomon’s Seal,” featuring Jackie McShee on the vocals, and John Renbourn and Bert Jansch on guitar.* (These recordings are all on YouTube. As at least token solidarity with the musicians and their copyright, I don’t provide links. Oh, as it’s the holidays, go on then: https://www.youtube.com/watch?v=ps6sHgbqQSQ.) In fact, another law-and-literature element about this song has lately occurred to me, larger than the magic justice element, or at least more immediately resonant in our times: it gives another archetypal dimension to Mary by making her a disbelieved woman at trial.
Like most modern versions, the Pentangle performance more or less condenses that printed in 1852 in William Sandys’ carol collection. As Child points out, it’s not surprising that this version should be anglicized such that Mary wants a cherry instead of a fig (or a Clementine?). The folk culture adapts material to context. (Other popular versions feature an apple, but the apocrypha give a palm tree.) Apparently heavy with child, she asks Joseph to pluck her a fruit, only to be rebuked, “Let him pluck thee a cherry that brought thee with child.” In the folk tradition, the depiction of Joseph is not without compassion, at least by inference: understandably, he’s an evidence-based guy, a not unreasonable man: even Galileans can be from Missouri. The line resonates as an undertone, a drone note, to the ballad, human but also accusatory of Joseph as much as of Mary. He has convicted Mary without a trial. It’s a sort of victim-blaming, if at the most rarified level, and with a more reasonable excuse than we find often in legal history.
In any event, then comes justice as magic: “Oh then bespoke the babe within his mother’s womb:/ Bow down the tallest tree and give my mother some.” The defence rests, with a cherry on top.
Of course at this time of light festivals we find that same justice-as-magic element in the Chanukah story: the candle oil miraculously burns for eight days so that the Jews can restore the Temple after a campaign of ethnic cleansing by the Greco-Syrians. The light glows even at the solstice. The justice aspect in the carol suggests cultural evolution in itself (which is why I call the treatment of Joseph folk empathy). In the Pseudo-Matthew, Joseph doesn’t use Mary’s craving as an occasion for bitter sarcasm. Rather, he snaps, “The tree’s too high. Anyway, you should be more worried about finding water.”
The evolutionary element should give us hope during this season of light in the dark (all the darker this year, in “light” of socio-political developments in the U.S. and Europe) – that while perfect justice might exceed our grasp in this material world, it is within our reach if only we keep the faith. At least that’s what I tell my students.
* The Pentangle also have produced very nice recordings of “The Twa Sisters” and “Bruton Town” (sure enough, available on YouTube). For more detail on justice as magic, see my The Structures of Law and Literature: Duty, Justice, and Evil in the Cultural Imagination.
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In my last post, about how the law might evolve (devolve?) under a Trump presidency, I forgot to mention the promise that inspired it: Mr. Trump’s pledge to reform libel law:
I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.
I assume that he is talking about the so-called Sullivan defence, although whether he is aware of that is another matter.
New York Times v. Sullivan concerns an ad placed in the paper by four African-American pastors from Montgomery, Alabama, under the signature of 64 prominent supporters, including Harry Belafonte, Nat King Cole, and Sidney Poitier. The ad, which appeared on March 29, 1960, alleged that civil rights protesters of the day had been “met by an unprecedented wave of terror by those who would deny and negate that document [the U.S. constitution] which the whole world looks upon as setting the pattern for modern freedom.” Among other things, it sought funding for the defence of Martin Luther King, Jr., whom it claimed Montgomery police were persecuting, illegally.
The ad did not name Sullivan, a Montgomery commissioner, but he sued on the argument that he was accused by innuendo. While there were inaccuracies in the ad, the U.S. Supreme Court held that (as the headnote to the case puts it) a public official could not succeed in an action “for defamatory falsehood relating to his official conduct unless he proves actual malice – that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.” In later cases (see, e.g., Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)), the rule was extended to include public figures generally, notoriously, Jerry Falwell in his lawsuit against Hustler magazine (485 U.S. 46 (1988); see my Ardor in the Court: Sex and the Law, pp. 246-47, 251).
Note that if the impugned words are “purposely negative and horrible and false,” or “a hit piece that is a total disgrace,” no reform of U.S. libel law is needed: such “articles” would exhibit actual malice. The defendant in such a case is not “really protected.” (For somebody who is in court so much, you’d think Mr. Trump would know this.)
The barriers to striking down Sullivan are not insurmountable, however, although they include formidable and consistent precedent in the U.S. regarding free expression. In Falwell, for example, in his judgment for the court, the very conservative Chief Justice, William Rehnquist, ruled against the reverend, never mind some really foul if deliberately absurd allegations about his supposed sexual conduct with his mother. (The piece in issue was a parody of advertising about “My First Time” drinking Campari liqueur.) The article was disgusting (to many of us, anyway), but was not created with actual malice.
For more detail on Sullivan see Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment, Random House, 1991.
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In the West, we tend to locate our idea of perfect justice skywards. Hence the idea of Heaven. Below that we install priestly interpreters, Moses, Jesus in his human iteration, judges and other such arbiters sitting above us on the dais, but also the “reasonable person” or pater familias of civil law (the caring parent), the more perfect standard by which we judge human conduct. At level three is the ordinary world of experience, where most of us go about our business. At the bottom is the underworld, the locus of sin, crime, evil, and Hell.
Falstaff: charming rogue or evil clown?
As I outline in The Structures of Law and Literature, this is the basic Northrop Fryegian landscape of all our culture, including our law. Sometimes it gets turned on its head, which presumably is the subtext of what commentators are saying about the election of Donald Trump – the evil clown’s revenge, Berlusconi point two, with a bigger army – as U.S. president. The paradigm turns Orwellian, with darkness on top, the world of experience just below in the constant dusk, and so on. Language is twisted as a matter of politics so that the lie is normalized: Hate is love (with Trumpery, of country, of one’s race…), war is peace (as a supposed instrument of how we pacify), ignorance is strength. The populace is kept off-balance and under control by continuous fear-mongering and war, class versus class, peoples vs. peoples.
Of course there is shifting and blurring at the boundaries. The reasonable person, Moses, the human Christ, all have a foot in our daily world, in their own rarified realms, and they climb to that mountaintop interface between us and Heaven, to commune with perfect justice. (This is where justice is the end of law, where we move back to a perfected Eden in “the next world.” Martin Luther King, Jr., uses this idea, equating himself with Moses in his “I have been to the mountaintop” speech.). At the lower levels, we find the moral outlaw, such as Robin Hood or Quentin Tarentino’s “Inglorious Basterds,” TV’s “The Fonz,” Arlo Guthrie reporting to the military draft. These are self-appointed revolutionaries who work outside Establishment law to “fight the good fight” for smaller groups, the oppressed, against unjust establishments and often unjust laws. Sometimes they have a social point, but the smaller the group, the more the focus narrows toward the cult and away from social conscience.
Until we reach the charming rogues, selfish people who lack a moral compass or have a broken one but who can be rebelliously attractive. Generally, they do not wreak serious harm. A notorious example is Shakespeare’s Falstaff, and you find them a lot in popular culture and song (think, even, of Bonnie and Clyde). Toronto Mayor Rob Ford was charming-ish, sometimes (but only –ish), in this way. For many people, so is Mr. Trump, although given his calculation he is loathsome where Rob Ford was ignorant-pathetic and occasionally well-meaning. That is, Mr. Trump enjoys strolling on the dark side, deliberately casting a deep shadow over the mountaintop and any pretense of charm.* And now he has the office for it.
Probably even for supporters of these politicians, they are not so much charming as serviceable, a poke in the eye to the rest of us, who they believe lord it over them. So what will law and justice look like under this topsy-turvy Trump presidency? It seems already clear that Mr. Trump won’t be able to accomplish, or even want to accomplish, much of what he has provocatively promised (so as to exploit mass fear and loathing) – banning Muslims from travelling to the U.S., deporting 18,000 “aliens,” building a free wall across the southern border, prosecuting Hillary Clinton. His ravings on international relations mostly are non-starters, it seems, although he probably will succeed at trade protectionism and imperialistic militarism.
And there is a good chance he will manage to overturn Roe v. Wade, the basis for abortion-on-demand in U.S. law. The conservative element on the U.S. Supreme Court has had several bashes at this already, narrowing Roe’s impact but failing to overturn it mostly because Republican appointments such as Sandra Day O’Connor didn’t fall into line. It looks like, during the next few years, Trump will have as many as four opportunities to appoint high court justices sympathetic to his views on such matters. And that, as they say, will do the trick.
No doubt such a court will be similarly cool, at law, to LGBT interests. Black lives won’t matter as much as they should, which is to say I, for one, don’t see a brake pedal on the downhill bandwagon to militarize civilian police forces, materially and conceptually. And unionists likely will be sorry that they abandoned the Democrats, particularly in Wisconsin, with its own anti-labour government.
Of course it was a deeply cynical lie to claim that a Hillary Clinton administration could have repealed the second amendment (the right of militias to bear arms, interpreted irrationally in recent years to stretch to the individual right of possessing military-grade weapons), and beyond despicable to threaten her with “the second amendment people.” (How is it that many characterize this arguably criminal incitement, coupled with his regular endorsement of violence against his political opponents, as just another There he goes again?) But, after Sandy Hook, the Aurora and San Bernardino shootings, Columbine, the Trayvon Martin debacle, it is hard to see how the gun lobby can get much stronger, albeit its capacity for brutal lunacy seems infinite. Heaven help us, indeed.
When Barack Obama ran against Hillary Clinton in the primaries of 2008, I supported Ms. Clinton, writing (in The Lawyers Weekly) that Mr. Obama couldn’t possibly live up to his captivating rhetoric and the expectations it created. I amended his campaign slogan to “Yes, but can we?” And though I seem to have been right, for all he has been through (including his failings, such as not closing down the Guantanamo prison, failing to spur gun regulation), he is persistently a compassionate, intelligent, indeed lovable idealist. He’s a true pater familias of honour and principle, a role model who, more often than not, has done his country proud. President Obama’s light will shine all the more brightly in the days ahead, if only we can see it at the end of the tunnel
*For more on the structural scheme of law and culture, see my The Structures of Law and Literature, described here and available here.
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Washington logo
As I mentioned in my last post, in 2003 and 2010 I published newspaper columns discussing racist names of professional sports teams – columns that still resonate given Douglas Cardinal’s recent failed attempt to enjoin the Cleveland Indian baseball club from using its name and logos in Toronto during the American League Championship series against the Blue Jays. Here is the column first published on September 3, 2010. (Read the 2003 column here.)
In support of the proposed mosque and Muslim community centre near “ground zero” of September, 2001, President Obama noted that freedom of religion was fundamental to U.S. history, values, and law. When critics and the usual gleeful troublemakers characterized this as a further insult to the memory of people who died in the terror attacks, the president said he was not talking about the project’s wisdom; he was remarking on the right of the American Society for Muslim Advancement and the Cordoba Initiative to undertake it. Some accused Obama of backpedalling, but of course he was making a legitimate distinction between law and social niceties. Correspondents to newspapers have put it more plainly: the fact that you have a right to do something doesn’t mean it’s the right thing to do.
American law is particularly alive to this distinction regarding the associated right of free expression. Over the years, however, it has reversed the “it might be your right but it ain’t right” homily, permitting all sorts of nastiness as protected by the First Amendment: in politics and entertainment, you have the right to say pretty well whatever you want, never mind that it’s hurtful and unusually rude. The notorious example is the mock Campari ad in Hustler magazine, a parody relating that Reverend Jerry Falwell’s “first time” was with his mother, drunk in an outhouse: Falwell v. Hustler, 485 U.S. 46 (1988). Then there is what has come to be known as “the Redskins case.”
It is not surprising that the controversy is a child of the 1970s. What remains remarkable is that it has not only survived the cacophony of political correctness since (including the idiot insistence that “I’m entitled to my entitlements” is the same thing as having rights) and particularly that it has survived the increasing sensitivity – and newfound decency – regarding racial stereotyping. Twenty-eight years later, we still have a football team of mostly African-Americans, and notably bereft of North American aboriginals, called the Washington Redskins. Then, of course, there are baseball’s Cleveland Indians and Atlanta Braves, hockey’s Chicago Blackhawks, and so on. It’s no wonder native North Americans have come to feel singled out for public ridicule.
I last wrote here about such commercial stereotyping in 2003, when Colleen Kollar‑Kotelly of the U.S. District Court struck down a ruling by the Trial Trademark and Appeal Board that the mark “Washington Redskins” was unlawfully disparaging under the Lanham Act. Since then, the matter has shuttled between Judge Kotelly’s court and the U.S. Court of Appeals, the upshot being that the complaint was dismissed on the basis of laches: the plaintiffs had sat too long on their right to object – Pro-Football Inc. v. Harjo, 565 F.3d 880 (2009, U.S.C.A, D.C.).
Recently, the U.S. Supreme Court refused to hear a final appeal. Still, while progress has been spotty on the “right thing to do” front, and moribund on the legal front, the battle remains joined. A recent edition of CBC Radio One’s “Revision Quest” renewed the debate in Canada. In 2005, the National Collegiate Athletic Association (NCAA) ruled that, if any of its members use aboriginal imagery or team names, they cannot host NCAA championships. And to get around the laches argument, in 2006 a younger group of plaintiffs filed a new mark-cancellation petition against the Redskins organization. It now becomes active, at the ultimate failure of Harjo.
Often the counterargument in these cases is that the team names and the associated artwork and activities – even the so-called tomahawk chop and woo-woo “war cries” among fans – are homages not insults. And sure enough, though I see “Redskins” as a racist stereotype, as a “European” I don’t feel anything visceral against team names such as Blackhawks, Fighting Sioux, or Braves. But first peoples rightly point out that the bigger, cumulative picture is all monochrome, all martial, the picture you’d get by insisting the New York Yankees could as easily be called the New York Village Bombers while the Giants became the IED Disablers.
This might sound simplistic, but for me it all comes down to Chief Wahoo. As I said in 2003, viscerally I find the logo-man for the Cleveland Indians, deliberately cartoonish with his toothy smile and single-feather headdress, attractive and amusing. But, again, “he’s gotta go, along with the Redskins mark. As one view puts it, Chief Wahoo has become the ‘little red Sambo’ of the 21st century.”
When I am tempted to say it’s all just in fun, I put myself in the other guys’ footwear (whatever that might be): I imagine a team called the New York Israelites, whose logo-man is Rebbe Oyvey. Rebbe Oyvey is a dancing chassid with an ecstatic, otherworldly smile, his eyes closed, his sidelocks and long beard bouncing under his black hat, his long black coat flying around his shins.
Would I find it offensive? Not really. It’s dumb but sort of happy-making. There’s no offensive mens rea. But what if there were also, I don’t know, the New Jersey Cardiologists, featuring a brow-furrowed M.D. and his stethoscope? And the Los Angeles Media and Entertainment Barons and their plot to conquer the world … of baseball, and the Chicago Professors with a similar aim regarding basketball?
Even if there were only the New York Israelites and Rebbe Oyvey, would I find them a heartfelt homage? No. I would find them a caricature that has nothing to do with either Judaism or sport. That would be my right. Seven years later, in 2010, what a shame we have to go to law to make the right thing to do a thing that’s a right.
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Yesterday (October 17, 2016), Douglas Cardinal lost his bid to enjoin the Cleveland Indian baseball club from using its name and logos in Toronto during the American League Championship series against the Blue Jays. In 2003 and 2010, I published columns in The Lawyers Weekly on this controversy over racist sports team names. As some readers of this blawg will not have seen those pieces, I reproduce them here. Sadly, they remain timely. Here is the column first published on October 17, 2003. The 2010 column follows in the next post.
The Houston Honkies. The Pittsburgh Pale Faces. The Oklahoma Ofays. The Washington Whiteys. Surely Colleen Kollar‑Kotelly tried some of these on for size. Which makes it all the more baffling how the U.S. District Court judge overturned a ruling by the Trial Trademark and Appeal Board (TTAB) that the mark “Washington Redskins” was invalid under the Lanham Act.
Chief Wahoo today & yesterday
In 1992, seven native Americans complained to the TTAB about the mark as used by the professional football club headquartered in the District of Columbia. On Sept. 30 Judge Kotelly ruled that there was insufficient evidence for the TTAB to decide (in 1999) that the mark “may disparage native Americans or bring them into contempt or disrepute.”
Probably the judge is right not to rely on judicial notice (her own experience and opinion). But that is no reason to abandon common decency and sense.
It is difficult to know which irony to cite first. There is The Language Police, for instance, Diane Ravitch’s recently-published study of the guidelines educational publishers and governments apply in U.S. textbooks and school testing. Ravitch found “huts” banned as “ethnocentric.” Calling a spade a manual excavating implement, the authorities suggest “small houses” instead.
On similar reasoning, “fanatic” and “extremist” are taboo in favour of “believer” or “follower.” “Soul food” shows bias, and “elf” must replace “fairy” because sometimes “fairy suggests homosexuality.” “Middle East” is Eurocentric and “boys’ night out” sexist.
Yet Judge Kotelly rules that the linguistic evidence is ambiguous on whether “redskin” is derogatory. The TTAB wrongly concentrated on the general public’s purported view, she says, instead of on how the “referenced group,” American first nations, felt about the term. The plaintiffs’ survey sample was too small, the seven plaintiffs did not represent native Americans in general, the dictionary evidence did not explain how the compilers determined what was offensive or racist. And so on.
Her honour does not consider that the Redskins began life as the Boston Braves, or that sports franchises change their names all the time, with no commercial damage. Not long ago, the Washington Bullets basketball team became the Wizards. Some consider even “Braves” offensive. Schools in several U.S. states have stopped using it in sports team names, along with Warriors, Chieftains, and the like – never mind that, unlike “Redskins,” such names pay genuine homage, relying on historical fact. They tend to stereotype less than the Fighting Irish, say, or even Vikings or Trojans. Yet Redskins persists while Braves is banned.
Nor did the district court consider that in 2002 the California Department of Motor Vehicles recalled the vanity licence plates of former Redskins fullback Dale Atkeson. The DMV explained that Atkeson’s 1REDSKN and RDSKN2 plates were “offensive to good taste and decency.” Too bad Redskins lawyer John Paul Reiner didn’t feel the same when he argued before the TTAB that “redskins” was no more offensive than “colored,” as in the National Association for the Advancement of Colored People.
In my own lifetime, in the name of inclusiveness “colored people” evolved into “Negro,” then “black,” and now “African-American.” The fact that the same respect is denied the continent’s first peoples suggests that we are not so civilized as we think. Like an ugly boil, it tells us that racism subsists in our body politic. In this respect, it is hard to credit Judge Kotelly’s companion ruling that the time for native Americans to object was in 1967, when the Washington franchise first registered the mark. That was 36 years ago, when racial segregation was a part of everyday life.
Today’s Canadian Oxford Dictionary takes a descriptive approach to language: it does not prescribe usage as correct or incorrect. However, even it characterizes “redskin” as dated and offensive, just as “colored people” is. And it takes pains to show why we cannot say the same of “Indian,” despite the fact that the term derives from history’s worst navigational boner – made, of course, by a pale face. In a special note the COD explains that while the use of “Indian” has “declined because it is thought to reflect Columbus’s mistaken idea that he had landed in India in 1492, it is common in the usage of many Aboriginal people and embedded in legislation… . It is also the only clear way to distinguish among the three general categories of Aboriginal people (Indians, Inuit, and Metis).”
Of course, the same cannot be said of the Indian trademark used by another sports franchise, the Cleveland Indians baseball club. I’ve always found the team’s logo, the big-toothed, smiling warrior dubbed Chief Wahoo, friendly and fun, but there’s no two ways about it: He’s gotta go, along with the Redskins mark. As one view puts it, Chief Wahoo has become the “little red Sambo” of the 21st century.
Anyway, the real question is why this issue ever got to the courts. Why do we have to go to law, cap in hand, for common decency? Walter Goldbach, the creator of Chief Wahoo in those less inclusive days of 1946 (when Goldbach himself was only 17) has suggested that the Cleveland franchise approach native American artists for a new logo. Vernon Bellecourt, president of the National Coalition on Racism in Sports and Media in the U.S., proposes that the team hold a contest in which the public provides a new name. The Redskins could follow, making it clear that the sports field is where people of all backgrounds put their differences aside in the spirit of fair play and mutual respect.
Doing the right thing could be a golden PR opportunity, if only the moneyed interests would embrace it. If only U.S. law were truly colour blind. They could trademark it across the world.
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Someone rushes into the room and fires a gun at the prof., or stabs at him with a knife. The attacker flees into the corridor.
Given our era of global terrorism and school shootings, Evidence Law profs wouldn’t stage this “crime” in class these days. Up to maybe a couple of decades ago, the idea was to impress law students with how unreliable eyewitnesses can be: everybody has a different narrative, disparate and sometimes wildly inaccurate. And if witnesses get to talking to one another, they can reinforce misconceptions, or cause each other to experience what nobody actually experienced.
I was reminded of this just yesterday (from when I write), melodramatically, as I sat in the waiting room of my 
ophthalmologist’s office in Yorkville. It was about three in the afternoon on a warm, sunny day, and my eyes stung with dilation drops. The large room was full. I was squinting at Maclean’s, trying to discern how Justin Trudeau is feckless as a feminist, when I heard three loud pops. After ten or fifteen seconds, there were three more loud pops. Looking up from her cellphone, one of the other waitroomers said, “A gun?” We all had wooden half-smiles on our faces. Then a woman we couldn’t see screamed. The cellphone lady left her seat, looking worried now, to see what was happening.
I’ve had to revise these events even as I describe them, never mind that they occurred just a few hours ago. Because of intervening circumstances – talking with eyewitnesses and other “earwitnesses,” hearing and watching broadcast news, reading the newspaper – I thought at first I remembered wrongly: that, in fact, the second volley of shots came after the scream. This doubt arose because the office receptionist had seen a plainclothes policeman approach a car and fire at the shooter. It was she who had screamed, although some of the waitroomers had thought the scream came from the street.
Once the receptionist had told me she saw the officer shoot the shooter, I had imagined that the second volley came from the police officer’s gun. News reports revealed later that both volleys likely were the shooter’s: he fired three times at criminal defence lawyer Randal Barrs, who had just exited his Yorkville office. Hit in the leg (police later said), Barrs crawled back toward the building, when the shooter fired several more rounds.* So, yes, your honour, I’m ninety-something percent sure the scream came after the second volley, as the police approached the gunman in his car.
Soon after the scream, anyway, I imagined we were safe, because I heard the roar of a car, and I assumed the shooter had fled.
Wrong again. True enough, the shooter was by then in a car, just outside my doctor’s building, where he had fled after the first volley. But the roaring vehicle I heard must have been the plainclothes officers using their unmarked cars to box him in. You perhaps saw the resulting configuration of vehicles on the evening news.
But of course, that is conclusory after the fact, without corroboration. What else was notable to this long-toothed legal academic and former barrister is that, with the first three shots, I went into denial, in a split second. Although I’ve lived in Toronto for 43 years and the last couple of decades here have been like inhabiting serial episodes of “Gunsmoke” (yes, it really is a disgrace, all of us at the Bochner Eye Clinic agreed), and although I started my legal career with criminal law, my first thought was, Gun. Then: Nah, not in Yorkville in broad daylight. Must be construction. But my body was thrumming, my breathing shallow with the effort of such wishful thinking. At least a couple of other people in the waiting room felt the same, it turned out, and had the same impression of rationalizing: “Nah. Can’t be. Could be?”
With the second volley we all lost our grip on denial. We began feeling something like mild hilarity, looking at each other with deadened half-smiles, shrugging, creating scenarios, having them altered by what we were told by others who had seen some of the street activity, giggling in disbelief and shock, then reminding each other that, the more we learned, the less amusing it was. We stopped waiting and started roaming, thinking out loud, peering outside. We were never amused, of course, but found ourselves dumbfounded by inexperience of such things in, as one woman reminded us, “Toronto the Good.” Smiling made us feel safe, betraying that reflexive denial. This stuff happens somewhere else, to someone else.
With the scream, it got serious. In fact, just after it, somebody’d had the presence of mind to holler, “Lock the door,” never mind that it was glass. Still, it took us at least five minutes (ignorant that by then the danger had passed) to decide we should probably move away from the windows. Denial, incredulity, shock, assisted by the fact that the window-shades were drawn against the sun. Out of several varieties of fear and wilful ignorance, we hadn’t raised them. Had the receptionist not seen most of what actually happened, our individual surmises were all we had to reckon with, themselves tweaked and twisted again and again as we talked about what we thought had happened, or not.
It was a good lesson, anyway, for all of us, never mind every police officer, barrister, judge, and expert witness. Be skeptical of the circumstantial. Even earwitness accounts can be coloured by our idiosyncratic experiences, physiology, and psychology.
*The good news is that both Mr. Barrs and the shooter survived. The news today is that Mr. Barrs is home from the hospital and recovering in good spirits at his home.
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