Saturday, June 28, 2008

A Macbeth in Staccato

From the first lines of text delivered in rapid-fire Polish to the pervasive punctuation of gun fighting, the TR Warszawa Macbeth staged at an outdoor venue beneath the Brooklyn Bridge is characterized by a relentlessly staccato quality. The language of this version bears little resemblance to Shakespeare's text--and when parts of the play's monologues are spliced in, they seem incongruous with their context. The production, which interprets Macbeth in light of the Iraq War and other recent military exploits, turns the play not as much from language to plot, but rather from language, plot, or character, to spectacle and sound. Although a more innovative and intriguing rendition of Macbeth than the version starring Kelsey Grammer a couple of years ago, which simply strung together the major monologues, this nearly opposite take still left me unsatisfied.

The most suggestive part of the production was its decision to segment the stage into four parts, with two levels on each side. The bottom left hand quadrant doubled as something like a locker room--where hoses were used often to try to wash out the prolific quantities of blood--and a banquet space where Banquo's ghost could appear at dinner. On the right side, a laundry room appeared, predictably deployed to try to rinse the blood stains from seemingly vast white sheets as Lady Macbeth wondered whether she could ever get the spot out. During certain moments, activities in two or more quadrants complemented each other in interesting ways. Hence, when the only witch left in this version (doubling as a Muslim woman who, when unveiled, turns out to be bald and dressed in fuschia) tells Macbeth his wife's obsession with the spot is incurable, we see her below in the laundry room, eventually hung on the very sheet she is attempting to clean.

Another powerful moment occurred with the appearance of Banquo's ghost. The ghost is not attired in some elaborate costume--instead, he simply appears stark naked, except for his boots (he died with his boots on?). This very human-looking, but bare, figure is indeed much more terrifying than a stereotypical ghost, and Macbeth's horror seems well placed. Even the impact of this moment was, however, soon eclipsed by the forward driving force of the production. Perhaps the pace of war is not the best for theater.

Saturday, June 14, 2008

Boumediene and the Constitution's Common Law Backdrop

Among its many important pronouncements, Justice Kennedy's opinion in Boumediene took a significant step towards adopting a more historically nuanced approach to the common law backdrop of the Constitution than most of the justices--aside from Justice Souter--have previously espoused. While acknowledging "the possibility that the protections of the Suspension Clause have expanded along with post-1789 developments that define the present scope of the writ" (p. 15), Justice Kennedy nevertheless focused some attention on "the common-law writ as it existed in 1789," which constitutes "the absolute minimum" of what the Suspension Clause protects (p. 16). 

The Court's methodological innovations in this analysis were two-fold. First, Justice Kennedy explained that rather than placing absolute priority upon the formal articulation of a rule in England, one must examine "why common-law courts lacked . . . power" to issue the writ in certain contexts (p. 19). In responding to this question, he insisted that, in some instances, prudential concerns dictated the outcome of decisions at common law denying issuance of the writ. 

Second, and even more importantly, Justice Kennedy maintained that the historical indeterminacy of the answer to the question of whether alien prisoners detained abroad were permitted access to the writ at common law did not prevent the Court from concluding that such individuals might be entitled to the writ. As he explained, "Both [the Government's and the petitioners'] arguments are premised . . . upon the assumption that the historical record is complete and that the common law, if properly understood, yields a definite answer to the questions before us. There are reasons to doubt both assumptions. . . . We decline, therefore, to infer too much, one way or another, from the lack of historical evidence on point" (p. 22).  Justice Scalia, critiquing the majority's deployment of history in his dissent, instead argued that a lack of definitive evidence should lead to the assumption that no right of access to the writ existed (pp. 7-8).

The majority's treatment of the status of the common law at the time of the Founding may mean that it is finally acknowledging the relevance to constitutional interpretation of something other than what John Reid has aptly named "forensic legal history." As Justice Kennedy wrote, citing to Paul Halliday and G.E. White's The Suspension Clause (pp. 12-15), "Recent scholarship points to the inherent shortcomings in the historical record." These shortcomings are inevitable when history is treated in all its complexity. At the same time, as I argued in Towards a Common Law Originalism, historical indeterminacy should not simply cause the Court to give up in despair; instead, it can valuably investigate the historical record to ascertain the reasons and arguments for the particular positions that this record might support before arriving at its own conclusions. By considering the pragmatic considerations that led English courts to deny the writ in various instances, Justice Kennedy did just that. 

Heaven's Border

Last night, I saw "The Edge of Heaven," the extremely well-executed second film in a trilogy by Turkish director Fatih Akin. The film concerns three parent-child pairs, all involving the only children of widowed or otherwise abandoned fathers or mothers. As some reviewers have commented, the work relies, like "Babel," on the intertwining and coincidental (or missed) encounters among members of its different stories. This aspect of the movie ultimately becomes rather cloying, especially when chance actions of each protagonist seem to narrowly thwart each potential moment of recognition. Nevertheless, the technique does not distract excessively from the formal elegance and excellent acting of the film.

Divided into three episodes, "The Edge of Heaven" adopts something of a Brechtian technique of alienation by announcing the deaths of two of the characters through the titles of the first and second sequences. The effect of this strategy is not, however, to disengage the audience members' emotions entirely. Instead, when we meet Yeter, after seeing the announcement "The Death of Yeter," we view the unfolding of her character already in mourning for her demise. Indeed, there seems to be an intimate connection in this film between naming and death. One character who survives the movie, but by all rights should be the least likely to do so, adopts a pseudonym for a while and is subsequently called by that pseudonym when Turkish authorities ban her girlfriend from speaking her actual name. Her partial anonymity itself appears to preserve her intact.

The third episode shares the movie's own title, "The Edge of Heaven"--but the borders in evidence are quite material rather than celestial. The scene commences with coffins crossing each other in the air, and emerging from planes in Turkey and Germany. We likewise see one of the German residents from the earlier part of the movie re-entering Turkey, having been deported for committing a murder. The only place that could possibly qualify as heaven here is Turkey, and redemption, if it can occur, seems to happen through the rehabilitation of the deceased in the eyes of those left behind.


Thursday, June 12, 2008

From the Executive to Administration

In an article entitled "Our Schmittian Administrative Law," recently posted on SSRN and forthcoming in HLR, Adrian Vermeule makes an extremely intriguing argument about the inevitability of so-called "black" and "grey holes" in administrative law. Whereas a black hole entails the complete exclusion of certain kinds of administrative action from the application of the Administrative Procedure Act, grey holes allow for retention of the facade of the rule of law while simultaneously permitting agencies great latitude in exercising discretion. Although these black and grey holes are of particular relevance in times of emergency, Vermeule contends that emergency situations persist on a continuum with normal times, and that grey holes, in particular, permit the judiciary to employ a sliding scale of standards of review depending on the surrounding circumstances. While Vermeule's deployment of the work of Carl Schmitt in service of explaining certain features of administrative law is quite insightful, there are a few questions that his piece leaves un- or under-answered.

Much of the work of Schmitt himself is fairly insistent on emphasizing the singularity of the sovereign; when Schmitt writes in Political Theology that "Sovereign is he who decides on the [state of] exception" ("Souveran ist, wer uber den Ausnahmezustand entscheidet"), the sovereign is, crucially, an individual. Translating the singular executive of Schmitt into the collectivity of the administrative state is a significant alteration. The individualization of the sovereign in Schmitt corresponds to the exceptional quality of his decision, by contrast with the paradigmatic kind of action in which an administrative agency engages--that of promulgating rules. Here Vermeule could find some of the development of Schmitt's conceptions in the context of continental philosophy and literary theory instructive. For the past ten years, since the English translation of Italian philosopher Giorgio Agamben's book Homo Sacer: Sovereign Power and Bare Life--a work that emerges out of the intersection of Schmitt and Michel Foucault--appeared, scholars of English and Comparative Literature have been engaged in research on both sovereignty and emergency situations (see, e.g., the Cornell conference on "Taking Exception with the Exception," and Julia Lupton's Political Theology blog). In Agamben's hands, Schmitt's assertions about sovereignty become converted--via Foucault's conceptions of discipline and governmentality--into general claims about the modern state's sovereign power over life and death, exemplified by the figure of the camp. This form of the Schmittian paradigm could perhaps illuminate the administrative version of the exception better than Schmitt's own work.

In addition, Vermeule notes early on that he will be focusing upon "emergencies implicating national security, rather than on economic emergencies or emergencies arising from natural disaster." At the same time, however, he adduces some examples pertaining to environmental rule making. As I have discussed in "Economic Emergency and the Rule of Law," there may be some reasons to distinguish among varieties of emergency; in particular, the invocation of a natural--and putatively uncontrollable--emergency may lead courts reviewing action taken during the emergency to adopt a more permissive viewpoint than they might otherwise be inclined to do. Furthermore, the inclusion of environmental examples suggests a potential application for Vermeule's theory beyond its current incarnation. To the extent that the Environmental Protection Agency is willing to consider climate change an imminent natural emergency, could it promulgate rules to deal with this situation based on lesser fact finding than usual and in the absence of conventional notice and comment procedure? Considering the extension of Vermeule's thesis to this and other situations outside the national security context might well be revealing.


Wednesday, June 11, 2008

Chinese Law in Confucian and Other Cultural Contexts

Over the past few days, I have been attending a conference in Ithaca on "Law in Context" that occurred as part of an ongoing collaboration between scholars at the Peking and Cornell University Schools of Law. Many of the representatives of the Peking faculty were on the younger side and appeared both to be introducing new emphases into legal scholarship in China and to be reflecting on the potential perils of the rapid changes that are now occurring not only in China generally but in its legal system in particular. Indeed, one of the trenchant pieces of traditional wisdom that was mentioned early in the conference appeared to carry its implications over through the duration: "More haste might result in less speed."

Along these lines, Ling Bin's paper on "Legal Professionalization in the Context of Legal Popularization" juxtaposed the vantage points of ancient legal reformer Lord Shangyang and the character of Qiuju from the fabulous film starring Gong Li and explained how the turn towards an increasingly systematized version of the rule of law might detrimentally affect some of the earlier sense of each individual being able to access law on her own. The presentation concluded with an animated discussion about this issue among several of the Chinese scholars, some of whom were more enthusiastic about the turn towards professionalization than others. 

Another excellent presentation revealed the ways in which technical legal principles may not entirely dictate the outcome of various cases, even those decided by the Supreme People's Court. According to Lou Jianbo, although there are a number of restrictions on entering into contracts for land--including limitations on foreign ownership as well as on city dwellers purchasing farms,--the Supreme People's Court has on a variety of recent occasions either circumvented these limitations and upheld agreements or crafted remedies that allow even a party prohibited from entering into the contract to obtain some value from it. Eduardo Penalver, commenting on the paper, suggested that the Supreme People's Court might be implementing something like Guido Calabresi's recommendations for how courts should treat statutes that have outlived their utility. Lou Jianbo thought this was a plausible explanation, especially because the agencies that had promulgated some of the restrictions often revised or removed them after the court's decision. At the same time, however, these practices of the Supreme People's Court also seem to bear some resemblance to the tradition of equitable decision-making. When, in particular, an agency has indicated that a stringent rule remains in force, and the court crafts remedies designed not to deprive parties of all value they might have obtained from a contract disregarding this rule, this activity is reminiscent of seventeenth-century English practices in Chancery. Like the Chancellor engaging in equitable decision-making, the Supreme People's Court appears to be providing some relief from the formalities of ordinary law. 

These and other papers--including one on "Corrective Justice in the Confucian Legal Tradition: A Nonexistent Concept"--seemed to indicate that it would be inadvisable to allow the haste to professionalize to leave behind less easily codified or formalized kinds of knowledge or practices that might provide valuable substrates for Chinese law. 

Monday, June 2, 2008

Targeting Religion in Texas

Today a state district judge ordered that the more than 460 children who had been removed from a polygamist sect in Texas be returned to their families. The chief objects of official discussion so far have been, on the one hand, the imminence of child abuse and, on the other, parents' desire to be reunited with their children. Although the sensationalism of the idea that polygamy is alive and well today, in the twenty-first century, has fueled some of the national attention the case has received, religious liberty arguments against the state's actions seem so far to have lain mostly dormant. Yet there is good reason to believe that the state's justifications for acting may contravene the families' First Amendment right to the free exercise of religion.

In recent years, the Supreme Court has moved away from rigorously evaluating burdens placed upon individuals' free exercise of religion. Instead, in the 1990 case of Employment Division v. Smith, Justice Scalia explained that "neutral laws of general applicability" would be presumptively valid, even if they did impede a person's ability to engage in practices central to her religion. This rhetoric distinctly recalled the first religious liberty decisions, nineteenth-century cases involving Mormons' assertion of a right to engage in polygamy as part of their religion. In one of those cases, the 1878 decision in Reynolds v. United States, the Court insisted on the validity of general laws against bigamy, and maintained that permitting polygamy would violate the country's "law of social life." To the extent that Smith echoes Reynolds, then, it would not seem to encourage a religious liberty line of resistance to Texas' actions.

Even after Smith though, the Court has insisted that the state cannot single out practices for adverse consequences simply because they arise out of a belief of a particular religious group or religion as such. When a locality tried to restrict certain forms of animal sacrifice because a Santeria church had moved to town, the Court struck down the resulting ordinance in Church of the Lukumi Babalu Aye v. City of Hialeah, determining that it impermissibly targeted religion.

Texas' allegation that it was justified in removing hundreds of children from the ranch in question because they were being raised under an "umbrella of belief that having children at a young age is a blessing" suggests a similarly impermissible targeting of religious belief as well as practice. Although under the current legal regime individuals have little recourse against neutral laws of general applicability, they can assert rights against this kind of singling out of a religious community. While the U.S. Supreme Court, unlike other countries' legal systems, has been largely unwilling to protect religious beliefs and activities on a group basis, it has at least restricted the extent to which the government itself can target religious groups for adverse consequences.

Furthermore, the Court suggested in Smith that it might still be willing to scrutinize more closely religious liberty claims that were brought in conjunction with other assertions of rights--the so-called "hybrid claimms" that Murad Hussain recently discussed in a Note in the Yale Law Journal. The classic example of such a case was that involving Amish parents' contention in Wisconsin v. Yoder that their children should be exempted from the requirement of attending public school past the eighth grade. Rehearsing the history of the Amish and citing the self-sufficiency of their community within the United States, the Court accepted the proposed arrangement. In that context, not only the parents' right to the free exercise of religion but also their fundamental right to raise their children as protected by the Fourteenth Amendment provided the constitutional support for the decision.

The parents at the Texas ranch could have raised similar arguments for the presence in their case of a hybrid claim in their case of religious liberty and parental autonomy. Not only has the state targeted their community for adverse consequences because of the presence of a "pervasive belief system"--what others might describe as religious doctrine--but the result of this targeting has been to curtail the rights of parents within the collectivity to raise their children without a specific showing of parental unfitness or an imminent harm facing the child.

While there may be very good reason for the state to intervene to protect some of the children being reared at the Texas ranch, the government's asserted grounds for acting suggest that it has impermissibly targeted religion. Asking the courts to decide this case based upon the parents' religious liberty claims might have been helpful, if only to illuminate how little we have actually progressed over the past century and a half in understanding the role of religion in our public sphere.