Organised Labour and the Future of Jobs


1. Jobs, Jobs, Jobs
2. Labour Strikes and Other Zero Sum Games
3. Peace In Our Time

1. Jobs, Jobs, Jobs

We tend to take for granted some of the things that organized labour has given us. Eight hour days, lunch breaks, week-ends, disability insurance, etc... But perhaps the thing that we took most for granted was a job. Not just work but a job. With a stable salary and a set wage, some benefits and some security. Yesterday, the New York Times reported that the ratio of job seekers to full-time jobs was at an all-time high. As of July there were 14.5 million people in the United States competing for only 2.5 million jobs.

But that doesn't even begin to tell the whole story. The number of job seekers is always under-reported and the number of jobs is always inflated so the problem is worse than it first appears. But most troubling, the character of the jobs being lost in this economy is different than that of the jobs being added. This is not accidental on the part of companies.

For most large trans-national companies, good jobs cost a lot. If you have a union shop or are forced to provide salaries and benefits equivalent or close to union rates the costs of acquisition of new employees, the cost of maintenance and the costs of severance provide a drag on efficiency. A massive economic downturn affords the opportunity to shed these jobs and replace them when times get better. But when the smoke clears, there are always, mysteriously, fewer domestic jobs and fewer union jobs. Since 1983, after waves of expansion and contraction, American manufacturing is dead, the number of well-paid blue collar jobs is vanishing and the rate of union participation has dropped from 20% to just over 12%.

While some efficiencies are important, this approach is short sighted and sacrifices long-term wealth and stability for the sake of short-term bottom line gain. Without a culture of jobs - good jobs - wealth will erode in the United States and other developed countries. The goal should be to sustain moderate growth that distributes wealth across the socio-economic spectrum over time, not a cycle of boom and bust that develops and reinforces structural inequities.

Who's to blame? Well, there is a lot to go around - greedy corporations, impotent shareholders, grasping politicians - but organised labour needs to step up and accept its share of responsibility. Unions have become ossified, conservative and reactionary and have not developed alternative strategies to combat the dogma of short-term economic efficiency. There are a few exceptions, but unions are lousy at creating jobs and, more troubling, they are losing their ability to protect them.

So, while politicians across the developed world, make vague promises about a green collar jobs revolution, it is time for organised labour in the developed world to reassert itself and demonstrate the innovation and creativity that were the hallmarks of its golden age. Otherwise, we will continue to see jobs - real jobs - slip away. - Beta

2. Labour Strikes and Other Zero Sum Games

Far be it from me to opine on the definitive causes of the recent unemployment and the net loss of blue-collar union jobs in our economy. Beta, rushing in where angels and nobel laureates fear to tread, himself acknowledges that there is lots of blame to go around. But he settles on organized labour as a party being particularly worthy of blame.

Yet he does not tell us exactly how unions have contributed to the short-termism and prioritizing of efficiency, which he suggests is the ultimate cause of this job loss, other than to decry the unions' "ossification", "conservatism" and lack of creativity. It does seem correct, however, to suggest that there is something inherently problematic with the overall strucuture of the organized labour relationship with employers. The bunkruptcy and restructuring of General Motors earlier this year illustrated some of the fundamental problems. The health care and pension costs per unionized employee at General Motors was extraordinarily high relative to those of such competitors as Toyota and Honda. The inability to restructure those arrangemnets, short of by way of a bankruptcy proceeding, reflects an inflexibility that will lead over time to the destruction of jobs and indeed whole industries.

How is this the fault of organized labour? Allow me to suggest that one source of the problem may lie in how we have structured the relationship between labour and management. The hostility between labour and management is legendary and deeply historical. There was a time when such hostility on the part of labour was necessary to claw out basic rights to minimum benefits and security.

But it also perhaps reflects the more general propensity in the Anglo-American world to place significant reliance upon competition and adversarial systems to resolve problems and attain optimal solutions. It is a characteristic of the ecnomomic system itself, the judical process of the common law, the competitive dynamic within our meritocratic organizations, and often our "realist" approach to foreign relations. It is based on the premise that it is a dog-eat-dog world, that the fittest will survive, and that competition will lead to excellence.

It is not the only approach. Westerners scoff at the union tactics in Japan. Workers go on strike over their lunch hour during the negotiation season, often demanding little more than better work conditions. Wildcat strikes or any other real hostility to management is virtually unheard of. The relationship is seen by both sides as more cooperative and collaborative than competitive. Both are part of the same team, not combatants locked in the death struggle of a zero sum game. Yet for decades this cooperative approach was an important part of a system of life-time employment and great job security, low unemployment rates, nimble companies with lower labour-related costs in manufacturing, and excellence in quality control.

There is of course no panacea to some of the problems attending the onset of "globalization", and now Japan too is suffering increasing job-insecurity, flights of jobs to cheaper markets, and the erosion of the lifetime employment system. I do not have the answers to how to prevent such dislocations.

But their approach bears some thought. Our tendency to approach societal problems as zero-sum games best resolved through the development of hostile adversarial relationships can be fundamentally counterproductive. As we head into global negotiations on the issue of climate change and green house gas emissions, perhaps mankind's greatest challenge and the broadest of collective action problems, we would do very well to ponder this carefully. - Gamma

3. Peace_In_Our_Time

Lunchtime Strikes? Ooooh...what's next? Refusing to water the plants? How about we steal the urinal cakes from the managers' bathroom? (And before we celebrate the Japanese as being the paragons of Pareto inefficiency, let's recall their original Zero-sum strategy.)

I think you're missing the point. It is a competition. The fit do survive. You can get all Neville Chamberlainly about it and call for peace in our time but that is naive and disconnected. This is not just a minor skirmish, it is an important fight that we need to win. Without better jobs, our economy will never really grow. It will just distend at the top until it collapses in on itself. (Jobs! The Ultimate Stimulus Package...)

Private enterprises are under intense pressure to adapt and innovate to survive - Schumpeter's creative destruction in action. Yet unions cling to outdated modes and structures and rhetoric. We've seen some evolution in fast moving industries where labour is re-conceptualizing their relationship with their members and with business. A good example is the film industry in Toronto. Union members get a decent living wage, film projects come and go, and over time the build-up of experienced and talented labour has become one of the City's competitive advantages. Everyone wins.

The flexibility that the Canadian and American Autoworkers showed in the restructuring of the automobile industry was a promising - if painful - start. But most organized labour still has far to go. And those of us who aren't super-rich need them to re-invent themselves and redefine their role. There are huge opportunities. There are massive workforces still unorganized and new industrial paradigms coming on-line, but without someone speaking - and more importantly thinking - for workers and their future, we'll find ourselves on the wrong side of a global zero sum game. - Beta

Honesty in Public Discourse


1. The Absence of Truth
2. - The Presence of Lies: The Long and the Short of It
3. - Giving Truth and Democracy Short Shrift

1. The Absence of Truth

"You Lie!" There has been endless debate over Rep. Wilson's uncivil outburst during President Obama's speech to the joint session of Congress. Most agree it was uncivil, it has been clearly established that Wilson's allegation was incorrect, and now we are into the question of whether it was motivated by racism. But there is another issue that deserves to be discussed, and this incident brings it to the fore.

President Obama was not lying, but the fact is that there is an increasing disregard for the truth by public figures, and indeed the media. That is actually putting it politely. Politicians and those engaging in the public discourse increasingly lie, shamelessly, outrageously, and most important, with apparent impunity. From allegations about "death panels", that President Obama is Muslim, right through to much more important lies, like those that grounded the case for the invasion of Iraq. President Bush and Dick Cheney may protest until the cows come home that it was just faulty intelligence, but it has been close to proven that there were some facts, such as the claim that Iraq had sought Uranium from Niger, that were known to be false when solemnly represented to the American people and the world.

Aside from the blatant lying, there is the related distortion of history, science, and every other rational pursuit in the effort to advance positions and undermine the arguments of political adversaries. And of course, the media, particularly the TV media and the bloggosphere, are increasingly playing the role of combatants in the political forum, rather than objective reporters and analysts of news. So we had the Bush administration itself single-mindedly sabotaging the science surrounding global warming, and now we have the conservative elements, including Fox News, likening President Obama to Hitler, Stalin, and Mao, insuinuating that he is liberal, a communist, and a fascist, exploiting the ignorance of viewers who don't understand the difference.

While everyone goes on about "civility", I want to suggest that we should be even more concerned about the lack of honesty. Sure, there are mechanisms like, and CNN and others from time to time subject political assertions to scrutiny - but there is seldom any real condemnation of lying and distortion. Only the likes of Jon Stewart really hammers people. So politicians, and the likes of Lou Dobbs and Glenn Beck, will continue to lie, based on the cynical calculus that there is little downside and lots of upside.

There is a wonderful scene in Orwell's 1984, in which Smith is morosely sitting in the cafeteria when the announcement is made that, due to sound government policy and recent progress in the war, the chocolate ration "will be increased from 5 ounces to 3 ounces." Smith is incredulous as people all around him cheer at the news, and wonders if there is no one else who recognizes the lie, or whether they are all just too scared to let on. What's our excuse? It is time to find ways to demand the truth, and effectively raise the costs of lying, in our public discourse. - Gamma.

2. - The Presence of Lies: The Long and the Short of It.

The Long of It:

If only I could tip my chair back, pipe in hand, cardigan pulled tight and lament the decline of the old ways of honesty and civility. But that is all bunkum, hokum and humbug. Deliberate falsehoods and nasty personal attacks have been used in politics forever to derail the conversation from ideas to insult, and to do mischief to well-intentioned plans.

The truth is that untruth has a hallowed place in our political and civil discourse. It reflects our commitment to freedom of expression and the marketplace of ideas. Over time, the truth should win out and it usually does.

Lack of civility is equally ingrained. While the clash of ideas and ideals is exciting and can reshape nations and cultures, the clash of personalities can be ever more potent and lasting. Minor hurts and slights can lead to greater schisms which can have dramatic effect on world events. What if Trotsky and Lenin could have just gotten along? All politics is personal, deeply personal at that.

I can't help but to wonder if dishonesty, incivility and insult are not an essential part of democratic discourse. They are part of the package. Maybe it is as simple as that an idea or political movement or cultural force that has been tempered by a nasty fight emerges as stronger and better respected. And maybe the inverse is true as well, ideas that can't withstand these scurrilous attacks aren't worth having around. I sometimes wonder about the the theory of evolution, not because it is not a great and true idea, but simply because it keeps getting bitch-slapped by creationists.

It is, like most things of importance, a little like hockey. The nifty passes and fancy footwork are great. We all love watching them, but sometimes you have to get your hands dirty. This is sometimes referred to as the John Tonelli principle. Watch him at :30 of this clip of the 1984 Canada Cup. Marketplace of ideas on ice, baby! But I digress...

The great leaders get this. They can take a punch - some even relish it. And they can deliver one when necessary. It is one of the things I have liked about Obama from the early days of his campaign. He is hard to hurt. And he is a very skillful, if subtle, counter-puncher. Watch him take out Clinton by talking about Reagan. It's the political equivalent of Bruce Lee's one inch punch. It is also, in its own way, a lie. But it is a good one and it was skillfully delivered.

Transformation, the essence of leadership, is a challenge to the status quo and it can hurt people and destroy the lives and the structures to which they cleave, notwithstanding the rightness of wrongness of the issue. Asking them not to lie is clearly anti-democratic. Asking them to be civil may be similarly at odds with essence of our democratic institutions.

The Short of It:

Grow a pair, Sally. - Beta.

3. - Giving Truth and Democracy Short Shrift

So Beta concludes that "asking leaders not to lie is clearly undemocratic". This is reached via a rambling saunter through premises ranging from the value of tradition ("but its always been like that!"), through some kind of intellectual Darwinism ("ideas that can't survive dishonest attacks are worthless"), and the related promotion of the market place of ideas ("the truth will emerge victorious"), to utterly ludicrous analogies to the game of hockey ("lying is like digging the puck out of the corner"?!).

The notion that lies serve to somehow temper the truth is just silly. The market place of ideas, on the other hand, is a more valid argument, being part of the justification for freedom of expression that dates back to Mill. But the Supreme Court of Canada, in examining the balance between freedom of expression and the criminalizing of hate speech, accepted that untruths can prevail, looking in particular at how systemic lies, packaged by the sophisticated propaganda machine of Nazi Germany, were important features of a process that ended in the Holocaust. The truth does not always win out, and some intervention is sometimes warranted.

But my initial point was not that we should somehow outlaw dishonesty generally. I was focusing on lies by political leaders and the press. Which brings us to the conclusion: "asking leaders not to lie is clearly undemocratic". This is rubbish. Democracy, in theory, relies upon the exercise of public choices based on sound information about the options available. That is why the role of the fourth estate is considered so important.

The fact that we are so often lied to by both politicians and the press, frequently on issues as dire as war and peace, is reason to question the legitimacy of our democracy, not a justification for dishonesty in public life. And if one really must have a sporting analogy for the harms of dishonesty to democratic discourse, it is surely Maradona's "Hand of God" goal against England in the 1986 World Cup. - Gamma

The Ten Best Law Movies of all Time


1. The Ten Best
2. The Failure of a New System
3. The Scientific Method

1. The Ten Best

Some people just list movies they like. So amateur. I have, instead, used a complex scientific formula that gives independent weight to seven critical features: acting, story, direction, courtroom scenes, air of reality, transcendent legal principles, and degree of hotness of actors. Each is scored out of ten. A perfect law movie would have 70. This is a copyrighted system. You can try it at home but please be very, very careful. It is not for the faint of heart. This is science.

In reverse order:

Acting (5): The brilliant Marisa Tomei won an Oscar for best Supporting Actress... but this is balanced by Ralph Macchio really sucking the life out of every scene in which he creepily appears.

Story (6): Good, crisp, funny, never insults the intelligence of the viewer.

Direction (4): Couldn't tell you who directed it. But the movie never lags. Funny is harder than serious. Kudos.

Courtroom Scenes (8): How can you top Everything this guys says is bullshit, thank-you and the almost perfect hostile expert witness scene.

Air of Reality (5): Obvious the plot is sheer farce, but anyone who has ever litigated has been, in one way or another, a version of Joe Pesci's character. Not quite ready, awkward, arrogant determined to do it on our own, and lucky. And often poorly dressed: I once conducted a preliminary inquiry in mismatched shoes.

Transcendent Legal Principles (3): When in doubt, call your girlfriend to the stand.

Hotness of Actors (10): Joe Pesci is not my cup of tea, but are you kidding me?

Acting (4): Tom Cruise, underactor, meet Jack Nicholson, overactor, meet Demi Moore, non-actor.

Story (7): A young Aaron Sorkin. "I'm going to rip out your eyes and piss in your dead skull." Great stuff.

Direction (7): Rob Reiner kept the pot from boiling over - barely.

Courtroom Scenes (8): Iconic.

Air of Reality (5): Tom Cruise is a snotty little bastard (see clip above) but real witnesses are lousy speechmakers.

Transcendent Legal Principles (6): "Deep down in places you don't talk about at parties, you want me on that wall, you need me on that wall." (see clip above)

Hotness of Actors (5): There is a principle called the Kevin Bacon hotness drag co-efficient that casts a pall on all other actors. And then there is this.

Acting (6): Gregory Peck does almost all of the heavy lifting. Extra points for a young, hirsute Robert Duvall as Boo Radley.

Story (7): Horton Foote was one of the greatest screen writers of his time. The source material was pretty good too. But there are some passages that clunk.

Direction (5): A little heavy-handed.

Courtroom Scenes (7): A little strained in hindsight, but this is a great scene.

Air of Reality (5): In real life, the mob would have pushed Atticus aside and lynched Tom Robinson. And what the hell is a chiffarobe?

Transcendent Legal Principles (8): Justice is both universal and colour-blind.

Hotness of Actors (7): Again, Gregory Peck does the heavy lifting. If only I could wear a white suit like that.

Acting (7): Gene Kelly. Spencer Tracy. Frederick March. They just don't make 'em like this anymore.

Story (7): Funny, serious, lively and important. "I am more interested in the rock of ages than in the age of rocks."

Direction (7): Stanly Kramer. One of the greats.

Courtroom Scenes (7): The story is complex and nuanced and unfolds primarily in the courtroom. There are some brilliant passages that are as relevant today as they were in 1960. It should be required watching for all Americans.

Air of Reality (6): Based on a real case tried by William Jennings Bryant and Clarence Darrow.

Transcendent Legal Principles (8): Freedom of Expression.

Hotness of Actors (4): If you like Spencer Tracy....

Acting (8): Edward Woodward and Bryan Brown and a whole lot of men with odd accents handlebar moustaches.

Story (7): Tight, taut and intelligent.

Direction (7): Brian Beresford balances the sterile courtroom with great action shots and beautiful panoramics.

Courtroom Scenes (8): One of the best defense summations on film.

Air of Reality (7): Also based on a real case. Captures the fog of war. The fallacy of honour. And the ties between fighting men. And the mischief that politics does to the law.

Transcendent Legal Principles (6): The line between being a murderer and being a soldier is thin and blurry.

Hotness of Actors (6): Did I mention handlebar moustaches...?

Acting (8): Paul Newman was one of those rare lead actors that had the range and quirks of a character actor. His performance is deep and and layered. A man in crisis looking for redemption despite himself.

Story (8): Early David Mamet. Tough and hard and gritty.

Direction (7): Sydney Lumet, who is still working, at his peak. The tone and pacing of the movie match its main character.

Courtroom Scenes (7): Very good. The examinations are messy, unsatisfying and imperfect. The speeches are rough around the edges, simple and eloquent.

Air of Reality (7): Every litigator has one more case in him. You're never really out of the game. Even if you are.

Transcendent Legal Principles (6): "You are the law. Not some book. Not the lawyers. Not some marble stature. Or the trappings of the court."

Hotness of Actors (7): Paul Newman... feh!... but more Charlotte Rampling please.

4. Rashomon 55.

Acting (8): Okay. I don't speak Japanese. But Toshiru Mifune rocks it.

Story (9): Simple, nuanced and powerful.

Direction (9): Akira Kurosawa's debut in the west. Stunningly direct, emotional and alive.

Courtroom Scenes (7): Technically, they are courtyard scenes but they are the basis of the story and they are electric and tense.

Air of Reality (9): In it's exploration of the unreliability and mixed motives behind eyewitness evidence, it is one of the most real movies out there. Utterly believable. With the possible exception of the testimony from beyond the grave. That rarely happens in real life.

Transcendent Legal Principles (6): Don't believe what you see, or hear.

Hotness of Actors (7): Mifune and the naif Machiko Kyo made Asians beautiful, sensual, powerful and human for the first time for western audiences.

3. Anatomy of a Muder 59.

Acting (9): Jimmy Stewart's finest and most subtle performance. Leah Remick is equally as brilliant as the powerful and powerless Laura. Ben Gazzara is edgy, arrogant and manipulative. And Eve Arden, Arthur O'Connell and George C. Scott fill in the spaces between them.

Story (9): Well told and interesting. The trial is contained in the larger context of the small town and the characters. So well balanced.

Direction (9): Otto Preminger was a god. The opening credits alone make this one of the great movies ever. Preminger's approach to framing his actors and the story was unique and dynamic.

Courtroom Scenes (9): Again, Preminger let the actors fill the spaces of the story, even in the courtroom scenes.

Air of Reality (8): For most of us, life is rarely as stylised as a Preminger movie.

Transcendent Legal Principles (7): Rationality is no match for irrationality.

Hotness of Actors (8): Lee Remick. Lee Remick. And did I mention Lee Remick?

2. Ghandi 60.

Acting (9): Ben Kinglsey disappeared in this role. He played Ghandi as a young, uptight barrister, an old, quixotic man and everything in between.

Story (9): If it had not in fact been true, this story would have been so utterly unbelievable. The dialogue keeps it human and avoids grand speeches and mythmaking. It is an intimate epic.

Direction (9): Okay. Tell the story of a perfect man and one of the largest, most chaotic countries, in a sweeping epic style that keeps the characters human. And go for three hours. Should be easy, right?

Courtroom Scenes (8): The three minute questioning of Brigadier General Dyer alone elevates the movie to rarified air.

Air of Reality (9): It all happened. Really. It did. It is a true story. Crazy, eh?

Transcendent Legal Principles (10): The rule of law is fundamental but the rule of justice is paramount.

Hotness of Actors (6): Ben Kingsley and a loin cloth...nudge, nudge, wink, wink... Thankfully, out of nowhere, a youngish Candace Bergen shows up to redeem things.

1. Witness for the Prosecution 62.

Acting (9): Charles Laughton 's performance as Sir Wilfred Robarts is one of the finest in the history of cinema. It was masterful and subtle and funny. Throw in Marlene Dietrich and a and Elsa Manchester, Laughton's wife, and you almost have perfection. Too bad about Tyrone Power.

Story (10): The plot is clever and tight and suspenseful. The dialogue reflects the difference of voice and the complexity of the characters.

Direction (10): Billy Wilder's talent was so outrageuous that this might not even be in his top three films.

Courtroom Scenes (8): High drama balanced with humour. Watch Laughton when he sits down at the end, exhausted and bothered by something.

Air of Reality (7): Well, okay, but that's mostly Tyrone Power's fault.

Transcendent Legal Principles (10): Cherchez la femme.

Hotness of Actors (8): Some people love Marlene Dietrich. The rest are fools.

- Beta

2. The Failure of a New System

Ok, so B's list includes some of the greats. But really, if this is the product of some new-fangled copyrighted system, it is a total flop. How else can we explain the utter failure to include some the following, particularly when we employ B's own precious criteria?

- Presumed Innocent

The acting is taught and the chemisty between Harrison Ford and Greta Scacchi is electric, while Raul Julia captures every scene he is in. The direction is fine, but the story is excellent (based on a Scott Turow novel), a suspense thriller with some real subtlety and sophistication in how it deals with the legal process. The scene in which Raul Julia conducts a cross-examination, in which he is actually threatening the judge without anyone else in the courtroom realizing it, is brilliant. The moral principle, that the justice system often operates on several levels, many of which are corrupt, is cynical but true. But really, even if all the foregoing were wrong, this movie would make it into the top ten under B's criteria for one reason alone: Greta Scacchi!!

- Judgment at Nuremberg

For a purported Marlene Deitrich fan, the absence of this from B's list is inexplicable. A brilliant if sometimes over-wrought depiction of the trial of German judges in the Subsequent Nuremberg Trials. Some of the cross examination by Maximillian Schell is outstanding, and the moral principle, that the rule of law and justice transcends simply the law of the day, is still profoundly important today.

- A Civil Action

This movie, based on a true story (which, as strange as reality can be some times, involved a lawyer who started practice in the same firm from which the protagonist of The Verdict hailed), is one of the true giants of law movies. More than most, it captures the scale, complexity, and psychology of a large trial. Some of the court room scenes are more realistic, and yet still more gripping, than those of any other movie. The scene in which John Travolta asks the one question too many, an open ended one at that, in cross examination, is a sheer classic. Unless you count Travolta, there is no hotness here, but there is the truth that litigation is sometimes ill-equipped to produce justice.

- Philadelphia

On the hotness scale, at least for the gals, they don't come much hotter than Denzel Washington. This movie, about a lawyer (Tom Hanks) dying of AIDS and fighting a case against his firm for discrimination, was an important part of the movement to change opinions on AIDS and homosexuality in America. Hanks won best actor, and the scene of a dying Hanks explaining an aria to the skeptical Denzel, is one of the great scenes in cinema. And the scene of Hanks, explaining on the stand why he wanted to be a lawyer, would fill many a law school. In contrast to A Civil Action, this film celebrates what litigation can achieve.

Well, that is just some of the other greats absent from B's list, and surely better than some on his list. There are others that must also be in competition for the top-ten: A Few Good Men, with that great scene between Tom Cruise and Jack Nicholson (who's hot?!); Paths of Glory, Stanley Kubrick's use of a court martial as a means of revealing the horrors and folly of war; In the Name of the Father - any movie with Daniel Day Lewis has to be up there; The Caine Mutiny - Bogey, are you kidding me? Under Suspicion, a movie about an interrogation, involving Hackman, Freeman, and the utterly smouldering, sizzling Monica Bellucci...the list could go on, but the defense rests. The copyright system is clearly guilty of utter failure and should be sentenced to banishment for the duration. - Gamma.

3. The Scientific Method

I think you need to sit down and with Inherit the Wind. Your denial of science is a little troubling. What's next? Creationism? Climate Change Denial? Rejection of the metric system? Maybe you just can't handle the truth.

I can't quibble with Great Scacchi. I take issue with Philadelphia.

Denzel was great, as always. But the rest of the film was contrived and preachy and studiously non-controversial. And two straight men playing desexualised versions of gay men were the moral equivalent of white men in black-face playing Tom Robinson in To Kill a Mockingbird.

And Judgment at Nuremburg is a terrible movie. It is boring and unwatchable. It is redeemable only because it is such an amazing story in real life.

The Caine Mutiny, Presumed Innocent and a Civil Action all hovered on my short-list. I had forgotten about Name of the Father and Paths of Glory. And, I hate to admit it, have never seen Under Suspicion.

Also not making it were The Paper Chase, the Client, And Justice for All, the Hurricane and Reversal of Fortune. Not because they aren't good...they just couldn't stand the scrutiny of the scientific method. - Beta.

The Death Penalty


1. Executing the Innocent
2. Finality
3. Law as Front and the Rule of Law

1. Executing the Innocent

In a rather bad movie called The Life of David Gale, Kevin Spacey and Laura Linney play criminal law activists trying to undermine support for the death penaltyby demonstrating that the state had executed an innocent man. For while there is ample evidence that a frighteningly high percentage of those convicted of serious criminal offences are innocent, there has been no proof of wrongful executions - until now.

There is increasing certainty that the State of Texas in 2004 executed a man who was not only innocent of the alleged crime, but indeed was executed for a crime that never occurred. Cameron Willingham was convicted for setting fire to his house and thereby murdering his three infant children. He was convicted on the basis of forensic evidence as to the cause of the fire, which it turns out was shockingly flawed. The State's own Forensic Science Commission has now determined that the conclusions of the investigators, that the fire was the result of arson, were based on a "collection of personal beliefs that have nothing to do with science-based fire investigation."

What is even more outrageous is that before Willingham was executed, independent studies of the evidence came to the same conclusion, and their reports were sent to the Board of Paroles and Pardons within the Governor's office as part of a petition for a review of his case. The report was ignored and Willingham's petition was denied without a hearing. The Governor denied a stay. He was executed in the face of growing evidence of his innocence. Similarly, other States have denied the convicted access to independent DNA testing of evidence, tests which might just exonerate them.

The outrageous logic of this mindset was captured best by Justice Scalia of the Supreme Court in another death row case this year, writing in his dissenting opinon that would have denied a review of the case of a man convicted and sentenced to death, "this cout has never held, that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent." Finality and integrity of process are to be privileged over justice and human life.

There are other powerful reasons why the State should not be in the business of executing its people. From a philisophical and moreal perspective, we are never going to progress towards a more enlightened civilization in which the sanctity of human life and the dignity of the person is afforded the highest value so long as we have the institutionalized killing of our citizens. Indeed, there are only two 'liberal democracies' left in the world that do so. But all that aside, the increasing evidence that we are executing the innocent ought to put paid to the practice.
- Gamma.

2. Finality

If they are looking for people to sit on a Death Panel, Scalia seems to have experience. It is a very chilling and sad quotation. It is hard to comprehend why we are still dealing with theses issues.

If we lived in a world where reason was the absolute ordering principle for public policy and law there would not be, of course, a death penalty. It is irrational and unconnected to any articulable rule of law goal or objective.

If we lived in a world where reason was not absolute but simply a powerful ordering principle, states that adopted the death penalty would have a elaborate and public procedure for validating the certainty of guilt before execution. Finality is an important rule of law principle but it should never be allowed to trump innocence. All the more so when the consequences of the finding of guilt are

But we live in a world where rationality consistently loses out to politics, tribalism, dogma, fear, hatred, and bloodymindedness. The structures of current American legal institutions ape adherence to rational concepts but they are regularly undermined by intellectual dishonesty (or laziness), careerism, cultural anomie, political shamelessness and plain, old, old-fashioned bat-shit craziness.
Poor Cameron Willingham probably thought he'd get a fair shake. Instead, he was swept up and aside by a system that has given up on the principles on which it was founded.

It could be worse. The next step is the world where irrationality is the foundation of public policy. Where the law is a front. Where fear is the only certainty. Where execution becomes a poitical tool to keep people off balance. Martin Amis offers a descriptive account of this in Koba the Dread, his idiosyncratic but persuasive exploration of Stalin's terror.

I've had the good and bad fortune to work as a lawyer legal systems that have demonstrated all of the above characteristics. What I learned was that the differences are often subtle in practice but they make themselves known in the results over time. - Beta.

3. Law as Front and Rule of Law

"B" writes above that "it could be worse. The next step is the world where irrationality is the foundation of public policy. Where the law is a front. Where fear is the only certainty." He concludes that the difference between our imperfect system, and that which simply uses law as a front, is subtle. That is a chilling, indeed a deeply frightening thought. Bright lines may keep us on the right path, but hazy distinctions may be missed in the mists of crisis.

In navigating a ship in close waters, pilots lay "clearing bearings" on the chart in the form of sharp lines on either side of the intended route, and a safe distance from the rocks. Using a compass, bearings are periodically taken from some pre-planned navigational mark and compared to the clearing bearings on chart. If the mark bears less on the compass than the clearing bearing, you are in safe water - if it bears more, you know you are standing into danger.

We need clearing bearings to tell us when we are standing into danger, drifting across the distinction between a nation governed by the rule of law, and one that increasingly uses law as a front, for political ends. At the current stage of our national journey, the treatment of detainees may be our guide.

Detaining people who were captured in other countries, with which we are not at war, and which do not constitute battlefields so as to trigger the laws of war, is fraught with legal issues. To then subject them to indefinite detention, with the prospect of subjecting them to some form of unique "military commission", which will be stripped of the normal due process and procedural protections required by both domestic and international law, should have us searching for our clearing bearings. When we hold those people for over seven years without even having decided on how to try them, we are into the realm of Kafka, and the law begins to simply look like a front.

In Kafka's The Trial, Joseph K lives in a land in which all is "governed by law, there was universal peace, all statutes were in force". But he is arrested and subjected to a judicial proceeding for charges that are never disclosed to him, on evidence he never sees or hears, and he is tried in a process in which he is never permitted to fully participate. Law is a facade, behind which K is finally executed, before the trial even concludes, for reasons which he never understands. Our treatment of "unlawful enemy combatants" shows us drifting across the line, and we need to pay closer attention to our clearing bearings. - Gamma.


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