My first law school assignment was an essay for Prof. Rakoffâs Contracts class. We started with a quote from Christopher Columbus Langdell claiming that law consists of absolute norms that exist on their own, and can be seen in cases (rather than cases that exist and that produce certain rules). We were meant to argue for one view of the law â Langdellian or realist â but all I could think was that both sides were right. There are rules, and there are cases and the two are combined in narrative, the most important tool a lawyer can use.
I expected narrative â storytelling â to come up repeatedly in law school, but it hasnât. Instead, we mash rules and facts together without art. (Iâm convinced that is why lawyers are so boring.)
But it shouldnât be this way. Ralph Nader likes to say that there are lawyers and there are attorneys â the former are advocates who know how to use the law, while the latter are law experts who bill by the hour. Iâd like to think that we should aim to be advocates, in which case weâd see âlegal reasoningâ as one of many tools in our bag.
Law is more than a system of rules. Prof. Cover (Yale) says that law is a normative environment where culture, institutions, and rules interact to produce legal meaning. If thatâs the case â if âcivil rightsâ advocacy is as much about marching and armbands and rock and roll as it was about Brown v. Board (or if you donât have one without the other) â then the court of public opinion is just as important as the âcourt of law.â
I have some first-hand knowledge in the matter. I worked for two years with the ACLU on the case of Khaled El Masri, a German man who was mistakenly abducted by the CIA and rendered to âthe salt pitâ in Afghanistan. (Oops!) After years of work on the case, with a sound legal argument and plenty of evidence, the case was dismissed in a sealed courtroom on âstate secretsâ grounds based on a document submitted by the CIA in camera. I was shocked, and realized that as long as there is discretion in legal doctrine, which there always will be, the social story matters. It matters that the country is afraid of another attack. It matters that Khaled El Masri has an Arab name. It matters that a large number of Americans believe that international human rights donât exist, or donât apply to the Global War on Terror.
So I wrote a screenplay about the event, but it didnât go anywhere â not because the screenplay was bad (though it was) but because someone beat me to the punch. Gavin Hood, the director of Oscar-winning Tsotsi, is currently working on RENDITION, which is largely based on El Masriâs story. Given where we are in the process of giving human rights norms legal meaning, Iâm convinced it will have a bigger impact than the ACLU lawsuit.
Iâm now in my third year of law school and I work for a magazine â because the way I see it, media is advocacy. The magazine is called GOOD, and itâs premised on the idea that What Matters can be entertaining. People watch the Daily Show for a reason â itâs hilarious. And while weâre being entertained, an idea slips in. Lately, the idea is âI donât blindly accept the political theatre Iâm fed every day.â
Itâs not easy to start an independent media outlet. But itâs easier if you can simply act as an aggregator for all the voices that are out there â youtube, blogs, etc â and amplify them. But one thing Iâve learned in this class â and which Iâm constantly trying to impart on my friends â is that we can do this stuff. We can make a video of waterboarding, or of cats with OCD that flush the toilet repeatedly. So weâre trying. Iâve sent so many of the links from our class on to my fellow editors.
The problem I keep encountering, though, is measurement. In a court of law, there are winners and losers. Itâs easy to say whether you got it right, on the whole, because you have a measure of success. (I suppose settlements make this murkier.) But in the court of public opinion, itâs very hard to get a sense for the effect of any one thing. Thatâs why I think itâs important to start small â to shoot for an attainable goal. Perhaps trying to convince HLS to fix a crack in the sidewalk in front of Langdell is easier than trying to change the culture of the military. In retrospect, I think it would have been wiser to pick a narrower project â one that could be completed in one semester. Thatâs why on the final project website, I made two empathic arguments â one to soldiers to encourage them to adopt and edit the future of SoldierTestimony.org and one to Harvard to adopt the SoldierTestimony.org project as a Human Rights Clinical for the coming year, for many of the reasons outlined above.
I suppose I still hold on to the idea that while we need to aim small to win, I think we need to aim big, too, even if we start small. Viral projects draw their strength from the fact that they can start small and grow, as the web is infinitely scaleable. Itâs SecondLife without walls.
I guess those are the points Iâve taken from the class â start small, aim big, advocacy can be entertaining, and we can do it.