Unused and Probably Unusable

Happy holiday weekend - this one's pretty special for us residents of Philadelphia. Saturday is July 1st (watch out for rising interest rates!) and Sunday is July 2nd, 2006 - the anniversary of the 1776 signing of the Declaration of Independence, 230 years ago this week, at Independence Hall at 5th and Chestnut Streets. The delayed announcement two days later gave many of the signatories time to travel to their home states in time for the Fourth, which is the Declaration's official date.

Before I launch into this week's Heinlein Friday (previewed here), let's quickly review what has gone before.

• Last week was Aliens, Combatants, and the Other.


• The week before, I presented Getting to Justice.


• The second substantive HF was Lawyers Beyond Stereotypes.


• The first HF post was on Courts.


• And, of course, there was the post when I announced the idea in the first place.

Many of these posts have been rather diffuse, as far as talking about any individual Heinlein work; usually I discuss at least three, and sometimes half a dozen different books or short stories.

This isn't the only way to do it - rather than talking about a common theme or a recurring feature, I could be doing in-depth book analyses or reviews. I plan to do at least one rather less superficial post on a single story, "Jerry Was a Man," as I mentioned last week and once before that. We'll let that wait for at least another week, though.

Now: on to Superman!

HF: Science in Superman?

What do I mean by that? Well, now that I think about it, this whole Heinlein Friday project begs the question: is looking for Law in Heinlein like seeking science in the Superman comic books or movies? Am I looking for Law in all the wrong places?

I think I'm not, just as there's some science in Superman - even if it is super-science. Where some comic books are pure fantasy, both X-Men and Superman have a veneer of science - the word "mutation" in the case of the former, and the extraterrestrial origin and explanation for Superman and his powers in the latter. Still, it's mostly surface, not real science.

Superman Returns is a wonderful movie. I'll put my overall comments in hidden text for those who want to avoid detailed reviews, but first I'll urge all of you who like That Kind of Thing to go see it. (some spoilerish reviews)


How's the science? Well, like Spider-Man 2, both movies contain a fantastic image of the sun - for SM2, in the depiction of the "fusion reaction" which Doc Ock has created, and for Superman Returns, when depicting the death of the planet Krypton. I presume both derive directly from SOHO images - check out the Image search results, but the links are great too.

Neither movie is about fusion or about stellar evolution, though.

One movie (Spider-Man) nominally is about mutation. I'll let that one go - the idea that being bitten by something radioactive can alter your DNA is ridiculous enough, but far enough beyond my competence, that I'll just note that it's not exactly scientific. Pseudo-scientific, perhaps.

Superman, as we all presumably know, isn't just Super-strong, Super-fast, and Super-good-looking. He can actually defy gravity - float in midair, fly faster than the speed of sound - indeed, perhaps fly "nearly as fast as the speed of light." He's practically magical. As I said before, super-science.

Is it a waste of time to look for Science in Superman?

I'd say no, it's not a waste. The physics of Superman are amazing. Eye-popping. Watch for the scene involving the next generation space shuttle - a timely feature, considering that countdown is ongoing for Shuttle Discovery's planned launch on Saturday! Check out the news for the latest. See also spaceflight dot nasa dot gov. As longtime readers know, I'm way excited about human spaceflight.

What's the movie got? Flying, with mass and momentum. When Superman flies fast, he's not just floating as if on a magic carpet, he's moving fast - but he is invulnerable. He can fly through buildings - but he's not omnipotent. When he saves someone's life, he has to take care not to injure them. The magnificent rescue scene involves a real flight emergency, with metal that shears, dangerous fires, acceleration forces, and a very scary ride for those lucky enough to be saved. It feels *real,* a touchstone for good physics in special-effects design, and in Superman, to quote the show Seinfeld from a rather different context, "They're real, and they're spectacular." - Sidra Holland, "The Implant." [Sidra, of course, was played by Teri Hatcher, who co-starred on the t.v. show Lois & Clark as Lois Lane, alongside Dean Cain.]

By the way, what's bad about Superman? Well, the law is terrible.

Law in Superman

What's wrong with movies nowadays? Why do they have to get basic legal stuff so badly wrong?

Lex Luthor is free in the movie, out of jail despite Superman's prior efforts to put him away. Why's he out? Because, quote, "the appellate court called Superman as a witness, and he didn't show up." Do I even have to point out how poor that law-writing is? I don't insist that they get relativity right (Superman was traveling for 5 years, ages along with the rest of the planet, but has gone light-years? Let it pass, let it pass), or anything tricky, but that's just nonsensical. If there was a retrial ordered, then Superman's absence would not set Luthor free. It would just require that his prior testimony be brought in some other way. In any case, there would have been so much evidence from other sources that the idea that Lex was out because Superman wasn't around is ludicrous.

Next, (spoiler warning)


What's the connection to Heinlein?

Is Heinlein a comic book? Is he just telling a socko adventure story, and the law's a sideshow? As I think I've been showing in these posts, sometimes the law is itself the point.

Heinlein traded in ideas, at least as much as in adventure per se. His starting point was "What if...?", and one of the ways to play with ideas is to imagine the legal system under a new strain, either technological or otherwise.

What if aliens were the subject of a lawsuit? What if there was new truth-determining technology in court? What if there was a different set of laws, morals, or customs in play?

Looking for Law in Heinlein, then, is like looking for the science in Superman - it's not the main point, but it's a rich source of teachable moments.

Heinlein was often showing law in operation, rather than telling us how law works - and the difference was that you sometimes had to work as a reader, actively turning dialogue by characters not necessarily interested in lecturing into a meaningful picture of what the society depicted is like. As prior posts have shown, some of the legal stuff is shallow or perfunctory. Other bits, however, have insightful or provocative views of and proposals for the law, usually told in an interesting and plot-relevant way. But watch out for For Us, the Living - it doesn't get more didactic and less interesting than that. I mean, you'd have to look to Ayn Rand to find writing as wooden and poorly executed.

Heinlein and movies

A brief note about Heinlein's work in the medium of film: Heinlein was the source of material for three distinct movies (or movie franchises).




Thanks for stopping by. Next week: TBD. Reader feedback, not to mention input on future topics, is welcomed.

For those who like this sort of thing (and I certainly do, see this old post at my former address):

The GU LC Supreme Court Institute's Final Report OT (October Term) 2005 has been released, and is available here (pDF, via SCOTUSblog).

I note that the statistics are not completely and utterly accurate; they list 0 Summary Affirmances without argument, when in fact on the final day of orders, there was at least one. Not that these affect the statistics.

Also (see p.8, or 6 of the document) the Ninth Circuit was far from the worst in terms of batting average.

The First, Third, Seventh, D.C. and Federal Circuit Courts of Appeals had a perfect .000 average, receiving zero affirmances, and some non-zero number of opinions vacated or reversed. None of those, however, received as many as four grants this term, and thus their low success rate (zero!) is understandable.

The Second Circuit, with 9 grants of which only one was an affirmance, appears to have done the most poorly.

The Ninth, with 15 grants (more than any other federal Circuit Court of Appeals) and only two affirmances, appears to have done second-worst. Again, this is not a reflection of quality of judging. It reflects primarily:

1. the sheer number of cases decided;


2. the cutting-edge nature of legal claims brought in the jurisdictions at issue (including New York and Los Angeles respectively for 2nd and Ninth Cir.s); and


3. the fact that most cases taken are not affirmed.

Also, Alito is not another (or a "Little") Scalia. He is almost worse. He is another (or a "Little") Roberts. Roberts created a quite unified, occasionally narrow court, more so than his predecessor. However, when the Roberts Court goes bad, it goes quite bad - Alito and Roberts, voting together, have helped accomplish some major harm on behalf of institutional, governmental, and conservative interests, at the cost of individual, criminal-defendant, and liberal interests.

Contrariwise, Roberts, sometimes with Alito, has at times helped accomplish some major renovations on other areas of law which have helped create areas of hope or at least clarity (less confusion) in ways that help individuals, criminal defendants, and some liberals, often coming at the costs of large institutions, the government, and conservative interests. So neither is really a naked partisan. They are both, however, conservative justices - not in the sense of limited-scope. In the sense of conservative-favoring-outcomes. This is due, as I think I've indicated, not to pure conservative bias in judging, but due to their ideological and methodogical biases. Your method of interpretation, and approach when considering a controversial issue, is often outcome-influencing.

Meanwhile, Justice Stevens issued the biggest blockbuster of the Term, with Hamdan, which presents either a major setback for the Administration, a blow against freedom in the Global War on Terror (GWoT), or some other possibility. Me, I buy the President's statement ("Bad people are not going to be let loose on the street") and discount the view that there will be no effect on Guantanamo or on the American prosecution of the GWoT.

Also, this is hilarious (Judging Crimes blog, "Does Scalia Believe in Anything?").

And that's the Word.

Via the NYT, "Canada to unveil details of alleged terrorist ring," I found the following admirable comment by a prosecutor assistant commissioner of the RCMP, Mike McDonell, who

told Reuters it would be up to the court to decide whether to impose a gag order that would sharply restrict what the media can say about the charges.

``For a lot of the information, we prefer to introduce it through the courts in the first instance so that we're not prejudicing anyone's chances for a fair trial. If the court says we're free to talk, I'll be talking,'' he said.

Now, I don't usually talk up Canada, but in this case, good on them. I like the whole "catching terrorists before a building blows up" thing - that's good, very nice. Second, I like the whole idea of charging them with crimes. As opposed to, you know, simply kidnapping suspects and holding them without charges, in violation of the entire American Way of Doing Things.

Now, given that they identified these terrorists (who were practicing with their weapons at night and taking delivery of three tons of fertilizer, or about three times what our own homegrown coward-terrorist-maniacs used to murder 168 Americans in Oklahoma City, and given that the police are also charging them, what's so admirable about the quote?

Well, it shows a commendable concern with the rule of law. Criminal cases have to be tried in a court of law, not in the court of public opinion. If a judge should in the future impose a gag order, the RCMP will abide by it. But more, before charges are unveiled and a court can rule on whether some filings will be made under seal, they want to avoid prejudicing anyone's case.

Now that's respect for law and order. Real law, real order, not just a pro-prosecutorial lock-'em-up inability to recognize that law cuts both ways, imposing responsibilities - duties! - as well as exacting penalties.

Big Love came to a low-key conclusion this Sunday on HBO, and I just caught it OnDemand. (Previous mention on this blog of the show. Comments on other blogs linked below in this post.] As episodes go, it had plenty of major developments. As a season-ender, it definitely falls more on the pause-before-storm rather than dramatic-cliffhanger end of the continuum.

Nobody died. (Although....) The polygamy police didn't serve a warrant or cart away Bill, the patriarch, in handcuffs. There were plenty of tears, plenty of shocked silences.

As with a number of my other favorite dramas, some of the best moments of acting and direction came in slow, dialogue-free scenes, and here, not atypically, as montages, so various actors got to try the "not-talking" bit. Not engaging in dialogue, of course, doesn't mean there's no writing involved. A wordless scene can be saccharine and manipulative; it can be stunning, appalling; it can be heartfelt and even conflicted. Comparing the closing scenes with moments from the West Wing, with the Sopranos, with ER (back in the day), with Six Feet Under (all, I think, somewhat comparable shows, in terms of caliber of actors and direction and writing, as well as, occasionally, tone and impact), I liked, but didn't love, the finale.

What's been resolved? Well,... (spoilers follow):


I also expect my prediction in this Volokh Conspiracy thread to be born out.