Monday, February 25, 2008

Academy Awards

Of the nominated films, "No Country For Old Men" was the film that should have won. "There Will Be Blood" was spellbinding, but, I think, like Paul Thomas Anderson's "Magnolia," ultimately didn't come together into a satisfying narrative.

I've written here before that the thematic arc that has been imposed upon "Blood" by critics, of capitalism and religion locking horns, doesn't quite fit. But it's a measure of the movie's flaws that it's so misunderstood. Most critics have also agreed that it's a film about a pathological misanthrope, but Plainview loves his son, even though he is flawed as a father. And he wants so badly to embrace the man claiming to be his brother that he engages in self-deception to allow himself to do so. I think it's a film about loneliness.

But I walked out of the theater not knowing what it was about at all, and that's the messiness of it. It's dense but unstructured, and the narrative seems to slacken to accomodate the performances.

"No Country" is unsatisfying too. It builds up and then abruptly dissipates, but it's in service of the narrative and of the theme, which is the futility of the efforts of man in the face of fate or chance or God.

Of course, I think "Ratatouille," was the best film this year, and it's a little odd because it is the thematic opposite of "No Country," since the moral of "Ratatouille" was that excellence is vindicated, and the moral of "No Country" is that ability is brought to ruin by chance.

Thursday, February 21, 2008

There Will Be Blood

I'm frustrated by the common critical interpretation that "There Will Be Blood" is about the struggle between commerce and religion. In my opinion, this interpretation of the film's premise attempts to shoehorn it into a conventional structure that does not fit the film, and elevates the importance of the Eli Sunday, the Paul Dano character, while minimizing other characters who are of equal significance.

The narrative premise of "There Will Be Blood," is that Plainview, the Day-Lewis character, advances and protects his interests by attacking potential adversaries with a mercilessness that outstrips the capacity of those enemies to do him real harm. The film is about who Plainview presents himself as, who he sees himself as, and who he really is, and his dealings with Eli Sunday are a piece of that, the same as the disposition of a man fraudulently claiming to be Plainview's brother, and Plainview's vicious dealings with the man from Standard Oil, who attempts to buy out Plainview's stake in the area.

The film's much talked-about final scene is only an escalated version of the resolution of the other story threads, where the audience's identification with Plainview is ruptured as he presses his triumphs further than he needs to.

The central relationship of the film is Plainview's relationship with his adopted son, H.W. His emotional connection to the boy is a raw nerve for him, and this is illustrated clearly in the dealings with both Sunday and with the Standard Oil man, who attempt to use Plainview's connection to the boy to their advantage and end up inciting Plainview's rage.

The irony of the film, and Anderson's final judgment on Plainview, is that, through his cold and unbending nature, he transforms the only person he loves into the only adversary that can destroy him. The last scene between Plainview and Sunday is only a postscript to the confrontation in which H.W. breaks Plainview, illustrating that the experience has left Plainview no less vindictive and dangerous than before.

That being the case, it's not Day-Lewis who Anderson indulges, but Dano, whose character has more screen time than he ought to. Maybe Anderson felt that giving Dano more screen time added to the impact of the final scene, or maybe he just liked watching Dano's entertaining performance. Whatever the reason, the prominence of the Eli Sunday character obscures the real point of the narrative.

Tuesday, February 19, 2008

I am not a crook.

In response to an article on Slate characterizing the crooked law firm in the movie "Michael Clayton" as a "devastating critique of the legal profession." It's not. It's just a play on popular misconceptions about the lawyers.

There is a reason that law firms exist as entities external to the clients. We are not them, and our identity, our credibility and our ability to stand for them before the court comes from the fact that we are not them and we are not responsible for their sins.

We have a professional distance from our clients which allows us to be viewed as a trustworthy party by courts or agencies who have every reason to expect the client to lie. We reach agreements between parties who won't sit in the same room with each other.

Once that separation is compromised, we can no longer credibly represent our clients. We don't hire hit men or blow up cars or dispatch "fixers." We don't want to do those things and our clients would never want us to do such things, because we have to be able to represent them before a court, and if we are untrustworthy, we are ineffective.

Bad people doing bad things create legal problems, and people who provide legal services therefore have to work on behalf of people who have done bad things sometimes. As long as an attorney adheres to his ethical duties, he is operating in the service of justice by advocating zealously to the extent of his abilities on behalf of his client. An attorney who defends a guilty or liable client before a court is no more responsible for the client's wrongdoing than a clergy member who absolves a sinner before God.

We can't make the client's problems go away. Once there's a litigation, there is a judge actively involved who is backed by the government and generally capable of doing his job. If the case washes out in a way that's clearly wrong, it's because he was derelict in his responsibility, not because of us.

The problem that drives the lawyer in Michael Clayton crazy is a common one, and simply resolved. If a lawyer discovers an unfavorable document in a client's files, he claims a privilege if he can, which is his responsibility as the client's advocate, and otherwise he discloses the document, which is his duty, and then he tries to muster other evidence to support a narrative that portrays the client in the most favorable light the facts allow.

It's not the easy cases like the one in "Michael Clayton" that drive you crazy. When the client is caught and there's smoking-gun evidence, the system usually functions well enough to prevent capable counsel of extricating the wrongdoer through some sort of legal sleight of hand. The job of the defense counsel is to put the other side's claim through procedural tests to see if he can expose it as bogus, and if it turns out to be legitimate, the lawyer will ordinarily counsel the client to settle.

If the system can't routinely resolve cases like this justly, than the lawyer's guilt in "Michael Clayton" is like the guilt of a thief who swiped some silverware from the dining room on the Titanic.

If lawyers are unhappy or mentally ill, it's not because of our guilt over what our clients. I think part of what makes us unhappy is that we have a doomy professional outlook. When newly engaged lovers are dreaming about living happily ever after, lawyers are tasked with preparing prenup agreements and wills to deal with the disposition of the assets in the event of death or divorce. While businessmen toast the commencement of a new venture, their lawyers negotiate how to divide blame if the enterprise fails, and which creditors will feast first on the carcass in the event of insolvency.

Another source of unhappiness is that our analytical approach to thinking forces us to identify flaws in ideas we'd sometimes prefer to embrace uncritically. You can't stop being a lawyer when you go to church or listen to a political speech. Most of us start out as idealists, and legal training is about systematically puncturing those ideals.

We become incapable of being spontaneous or carefree. We look for rainclouds on a clear day. We are the nagging voice reminding you to get a flu shot. We're the guy at the party trying to get someone to be a designated driver.

The bankers and hedge fund managers are happier because they're optimists and we're pessimists. They look forward to success and we anticipate failure. Whether that's part of what we become by being lawyers or why we become lawyers in the first place is an open question.

Wednesday, February 13, 2008

Poor People Watch HBO

People on the political fringe are all up in arms about a NYT Op-Ed showing that poor people in the US are doing pretty well, as measured by the acquisition of consumer goods.

The fact that goods are cheaper doesn't diminish the fact that the ability of the poorest Americans to consume is increasing. Cheap goods increase consumer purchase power in the same way that increasing incomes do. The money people have buys more stuff.

I do think a problem is that poorer people tend to make worse decisions with regard to consumer purchases, and tend to pay more. Historically, poor people have been swindled on furniture and electronics rent-to-own arrangements, which result in them paying much more than an item costs over a period of months, in exchange for the immediate gratification of taking it home with no money down.

While chain-store practices are less predatory, they offer payment plans on big-ticket items that include hefty interest payments. So, while it may be progress that a poor person can own a $900 television, it's unfortunate that it will often cost him $1400. This also indicates the precariousness of an economy driven by the people buying depreciating assets with loans against future earnings.

If they wanted full procedural rights, they shouldn't have been terrorists.

The New York Times editorial today. I disagree.

If Khalid Shaikh Mohammed had been found in 2003 in a place where ground forces either couldn't capture him before he escaped, or where capture was not possible, the military almost certainly would have deployed aircraft to bomb his location, as it did in the 2006 killing of terrorist leader Abu Musab al-Zarqawi.

That is an option that would never be considered by domestic law enforcement, and was arguably an summary execution with no procedure, but it was not a subject of international criticism and it was considered an appropriate action against a valid military target. Our military enemies have a narrower set of rights than domestic criminal defendants. We can tap their phones, kick in their doors, search their houses, detain them without counsel and kill them in combat without judicial oversight.

The limitations on our dealings with our enemies are defined by international human rights treaties such as the Geneva Convention, which prohibit summary killing and punishment of captives and civilians, but endow no specific procedural rights for captives accused of war crimes. These enemies should not be permitted to avail themselves of the more expansive set of rights granted to criminal defendants under the U.S. Constitution.

There is no way to provide captives taken abroad by the military with the full procedural rights available to domestic criminal defendants who are pursued and captured by law enforcement agencies.

For example, if Khalid Shaikh Mohammed were prosecuted in a U.S. court, he could potentially exclude much of the evidence from the trial because of the circumstances under which it was collected. Wiretaps of foreign terrorists are conducted by military and intelligence agencies, and are not overseen by judges. The military successfully uses information gleaned from intelligence monitoring to raid and bomb terrorist hideouts, but all of this information is inadmissible in a U.S. court because the CIA and the military do not follow the constitutional rules for gathering evidence when engaging in covert monitoring of foreign communications.

Most of the physical evidence collected by the military, such as papers or computers, would be excluded either because it was collected in searches by military personnel that would be considered unconstitutional, or it may have been turned over to other agencies for examination in ways that could create challenges to its admissibility.

All statements made by the defendants would be excluded because they were not given Miranda warnings, and were detained without access to counsel. Additionally, the key tool of prosecutors in breaking up criminal conspiracies like the mafia, which are the closest analog to terrorist groups in conventional law enforcement, is the cooperating witness, a perpetrator who testifies against his compatriots in exchange for leniency. In these cases, we aren't offering deals, so we have no cooperators.

Hearsay evidence is necessary, because credible statements have been made by witnesses who are dead or who cannot be compelled to appear to testify before the tribunal. Also, it is reasonable that there would be serious public safety concerns about airing all the government's knowledge about Al Qaeda in making a case against these men.

There are compelling reasons for relaxing the standards typically maintained in criminal investigations in cases of these detainees, because the campaign against Al Qaeda has been designed around getting the information to stay a step ahead of the terror network and shutting down its ability to operate, rather than following the procedures to build a legal case against its leaders.

These United States had to take the extraordinary and unprecedented measure of going to war to bring these terrorists to justice, because they were beyond the reach of conventional law enforcement. We shouldn't let them off because the soldiers we had to send after them fight wars better than they build prosecutions.