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July|August 2004
The Moral of the Story By Patrick Keefe
Spot On? By Adam Hanft

The Moral of the Story

Thane Rosenbaum rightly argues that the law should rededicate itself to the pursuit of moral justice. But can he practice what he preaches?

By Patrick Keefe

AN ELDERLY WOMAN WITH CROPPED GRAY HAIR APPROACHED THE PODIUM at the federal courthouse in Brooklyn one recent morning and announced that her name was Greta Beer. Before the Second World War, Beer's father, a Romanian Jewish factory owner, deposited funds in a Zurich bank account. When Beer and her mother tried to retrieve the funds after the war, however, the bank claimed that it could find no record of the account.

It was stories like Beer's that, six years ago, helped force a series of Swiss banks to concede that they were active partners with the Nazis, laundering gold taken from Jews and appropriating the accounts of many who perished in the Holocaust. In a remarkable collaboration among diplomats and survivors, lawyers and politicians, the banks were persuaded to pledge $1.25 billion for restitution.

But the more difficult task of figuring out how to distribute the money has fallen to federal judge Edward R. Korman, who sits in Brooklyn. Beer spoke in an untraditional legal proceeding convened to determine how to allocate the roughly $800 million that has not yet been distributed. The sum has many suitors: thousands of Holocaust survivors and other impoverished Jews in the United States, Israel, and the former Soviet Union. "There is a higher order," Beer said to Korman. "There is God. And in this world there is you."

As the daylong hearing unfolded, the courtroom heard a stream of laments, with survivors describing their suffering at the hands of the Nazis and their further disenfranchisement at the hands of the Swiss. The lawyers who periodically stood to defend the claims of various groups seemed out of place in their own professional milieu. After the devastating testimony of Ruth Brand, a survivor representing the Yad Vashem memorial in Israel, a lawyer took the podium and faltered, saying, "This is the first time in my 47 years of practice that I've cried in the courtroom."

When confronted with the tragedy of the Holocaust, and the moral authority of those who survived it, our legal system appeared to hesitate. Korman seemed to recognize that there would be something grotesque about forcing these elderly individuals to shoehorn their personal narratives into the parameters of evidence rules, or to allow some lawyer to cross-examine any of them on the subject of his suffering. When a lawyer asked for permission to examine someone who had just spoken, Korman barked, "This is a hearing. Not an examination."

Four hours into the hearing, Thane Rosenbaum, a young man with shoulder-length hair, took the stand. Rosenbaum is the son of survivors, and a law professor at Fordham University. He is also the author of a new book that takes American law to task for its coldness and inhumanity. Rosenbaum is a champion of hearings like this one, which he sees as antidotes to the procedural formality that can get in the way of pursuing the truth in American courts. At the hearing, he proceeded to deliver a rousing speech—one that would have sounded a little strange to anyone who had read his new book.

"[T]HE LEGAL SYSTEM HAS COMPLETELY LOST ITS BEARINGS," Rosenbaum announces in The Myth of Moral Justice. His book is a cri de coeur, and it is no less provocative for being ultimately unpersuasive. Rosenbaum is a novelist as well as a professor of law and literature, and he makes clear from the outset that he believes the legal profession could learn a great deal from literary works. The central preoccupations of fiction—the emotional life of characters and the circumstances that lead humans to err—are in some respects out of place in our legal system. He argues that the lawyer's world is "increasingly narrowed, isolated, cut off from the human experience and focused far too much on achieving prescribed, predictable results."

This devotion to procedure and its particulars—loopholes, evidentiary rules, statutes of limitations—prevents the judicial system from uncovering truth. Rosenbaum believes truth is a casualty of a "broken trust" between the public and the bar, and that "trials, legal settlements, and plea bargains generally result in either silencing the truth or bastardizing it." Fact is a legal term, he suggests, where as Truth is a moral one, and on the "treadmill toward resolution, the truth loses traction—the zeal for finality overrides the truth behind the story."

To illustrate his point, Rosenbaum offers a great many examples from literature, film, and television that portray an abiding distrust of the legal system among those who are subjected to it. These works, in one way or another, deal with the predicament of individuals facing what he calls "immoral justice." Our affection for these stories, Rosenbaum suggests, is evidence of civilians' deep misgivings about the legal system.

The stories we are most drawn to are those in which lawyers flout the system in order to achieve moral results: Paul Newman's Frank Galvin, who instructs a jury at the end of The Verdict to disregard the law; the young lawyers on The Practice, who abandon professional standards and risk disbarment every episode in the name of a greater good. We love these lawyers because they are anomalous. In real life, Rosenbaum suggests, lawyers fixate too much on the legal, and have lost touch with the moral.

Up to this point, it is hard to argue with Rosenbaum. It is obvious that the legal system does not consistently produce moral results—that the congruence between what is legal and what is just is intermittent at best. Similarly, it is an old saw that the adversarial American system of justice often surrenders its truth-seeking function in the name of achieving a fair result. But Rosenbaum pushes past these truisms to make a more original point. "People look to the law to provide remedies for their grievances and relief from their hurts," he writes, "to receive moral lessons about life, to better themselves and their communities."

Here Rosenbaum begins to betray his rather varnished view of the average litigant. Certainly people go to court to receive remedies for hurts and grievances. But does the plaintiff in a slip-and-fall case really want to receive a moral lesson about life? Do the husband and wife battling it out in divorce court want to better themselves and their community? Rosenbaum believes the answer is yes. With almost incantatory regularity, he reiterates the suggestion that the average Joe goes to the legal system for the most elevated of purposes. Yet this repetition can't mask the false dichotomy that forms the basis for Rosenbaum's argument. Only by portraying litigants as wounded souls, eager not for revenge or monetary reward but for the kind of succor more often found in therapy, can Rosenbaum adequately convey the moral decrepitude of lawyers and the legal system. It's a novelist's trick: By making saints of the one, you make sinners of the other.

BURIED IN THE MIDDLE OF THE MYTH OF MORAL JUSTICE is a telling anecdote about Rosenbaum himself. He describes being a party to a lawsuit, and being pressured to accept a settlement that he thought was unfair. Curiously, in a book that touts the recuperative values of storytelling, Rosenbaum is reticent when given an opportunity to tell his own story, and does not elaborate on what kind of a suit this was, what role he played in the case, what the settlement entailed, or who pressured him to accept it. He does tell us that he tried "to call attention to other information and matters that were not being accounted for in the settlement, and that, if ignored, would render the result even more unjust than I felt it already was." But at this point, Rosenbaum was muzzled. The judge told him to stop talking, and went so far as to threaten that if he said another word, "we'll start all over . . . and I promise that you will end up in an even worse position than you are in now." Despite his legal training, Rosenbaum was unable "to respond to those feelings of silence, banishment, and deprivation that the legal system imposes on losing parties."

Rosenbaum believes that personal narrative is what is missing from the judicial encounter, that "the law misses the emotional backstory, the suppressed part of every lawsuit." The governing motivation of Rosenbaum's average litigant is a desire to tell a story. Most people come to court because they have suffered some kind of hurt, he suggests. "Grief is what animates and inflames most lawsuits," and thus while the legal process is geared toward retribution, what most people want from it is a more therapeutic resolution—and a chance to give their version of events. The Myth of Moral Justice stakes its claim on the idea that storytelling is a form of healing.

Turning again to literature to prove his point, Rosenbaum cites Kafka's Joseph K., who declares in The Trial, "All I desire is the ventilation of a public grievance." Rosenbaum suggests that for many litigants, this ventilation would be enough on its own. "The more details of the story that are revealed in an open forum, the more possible it becomes for victims to reconcile themselves to what happened and find some measure of relief." The importance of this testimony's public nature is a recurring theme; Rosenbaum seems unpersuaded that detailing one's ordeal to a friend or family member will do the trick. The courtroom has never lacked for theatricality, and in Rosenbaum's interpretation, having your day in court seems almost indistinguishable from having your moment in the spotlight.

The problem, of course, is that the courtroom is not a theater, or even a Quaker town meeting. While the idea of people telling their stories is attractive in theory, in practice the courts are overburdened as it is. Apart from the broad restructuring that would be necessary to allow everyone his time to talk, the result would be a riot of competing perspectives, unconstrained by the procedural limits that now prevent court proceedings from devolving into bedlam. Rosenbaum counters that allowing people to tell their stories would be good for effciency, because quite often all that people want is to tell their story and perhaps receive an apology. Thus an institutionalized forum for both might actually reduce the number of drawn-out and expensive cases. It is certainly appealing to think that the average class member in a mass tort litigation would be happy to forego a financial settlement, provided she got to tell her tale and receive an apology from the CEO of the company being sued. But do we really believe this?

BACKSTORIES ARE IGNORED, Rosenbaum argues, because the law is too concerned with tangible, measurable externalities. "The law only looks to what is visible, external, and obvious on its face," he writes, "rather than what resides inside those who come before the law. It smugly prides itself on the wisdom in its head rather than on the compassion of its heart. It relies too much on logic, and not enough on love." In particular, Rosenbaum is troubled by the law's fixation on the tendency of legal solutions—whether in the form of monetary damages or prison sentences—to be rendered in quantifiable terms. He worries that the law overlooks the "spiritual" qualities in our species and focuses instead on the physical, becoming operational only when some quantifiable harm has been done.

Leaving aside objections about some of the more intangible causes of action in American courts—intellectual property infringements, libel or slander, emotional distress—isn't the law concerned with externalities because that is the extent of its competence? One of the major curiosities of Rosenbaum's argument is that he seems to want to entrust judges with not only the challenging duty of administering the law, but with the far more delicate and complex business of healing emotional and psychological wounds as well. More than once, Rosenbaum likens lawyers to doctors, and proposes that "the legal system should begin to regard itself as a healing profession, because a client with a grievance is not that much different from a patient in pain." But would the average American want to entrust her emotional well-being to a lawyer or a judge? Rosenbaum suggests that in his ideal model for the legal system, "The human spirit would also receive protection under the law, and the law should scrutinize the actions of those who are responsible for causing spiritual violence, indignity, and neglect." But Rosenbaum's utopian vision is so bizarre as to feel dystopian. What grand inquisitor would we endow with the power to rule on injuries to the human spirit? How great or small would invisible emotional wounds have to be in order to merit protection? While produced with the noblest intentions, Rosenbaum's proposal flirts seriously with a tyranny of the touchy-feely.

And if what one wants is to assuage grief, why go to the courts at all? One perplexing strain running through The Myth of Moral Justice is the notion that the courts would be the place people turned to for relief of trauma or emotional distress. In discussing the particular case of the Victim Compensation Fund for September 11, Rosenbaum writes that "individual members of the class are deprived of an opportunity to tell their individual stories." While this may be true, it presumes that the families would choose to tell their stories through the legal system. The nation has been repeatedly memorializing the 9/11 victims in a variety of media since 2001. The New York Times's Pulitzer Prize-winning series "Portraits of Grief," in which the paper departed from the conventions of obituary writing and drew
on accounts of family members and friends to create a vivid impression of each victim of the attacks, was just one example of this public grieving.

In addition, the law firms that took on the cases of individual families were asked by those administering the fund to prepare binders of material on the victims, replete with photographs, biographies, and testimonials. While the scrapbooks may not have expressed what we would hear from a tearful family member in court, they did record the story of each victim of the terrorist attacks.

Rosenbaum criticizes the 9/11 fund because he believes it places more value on economic loss than on emotional loss. "What's clear is that the surviving families of September 11 were given insufficient legal options in which to grieve," he argues. Here Rosenbaum reveals how badly his line of argument has gone off the rails. Legal options in which to grieve? It is not within the purview of the legal system to help us grieve. There are, or should be, other outlets in society for that. Tort law is an inexact science, a series of "tragic choices" and inadequate compromises, performing an impossible negotiation between legitimate but opposed societal interests. Does Rosenbaum really want to add a duty to heal to this already strained fi
eld of law? "Where is someone to go to relieve wrongs when the legal system pretends to open its doors but in fact shuts them and, in doing so, causes even further pain?" Rosenbaum asks. To which the reader might reply: a shrink.

ONE RECENT EXAMPLE where the sorts of ideas Rosenbaum is championing were put into practice was the Truth and Reconciliation Commission in South Africa. The commission was established in 1995, and represented a profound departure from the Nuremberg trials' model of dealing with historical brutality and injustice. The emphasis of the TRC was on ascertaining the truth of what happened in South Africa during apartheid—where the bodies were
buried, and who did the burying. The commission heard over 2,000 accounts of victims' suffering, and received 23,000 written testimonials. Storytelling—by both victims and perpetrators—took precedence over adversarial wrangling. Victims, family members, murderers, and torturers were given free rein to recount their experiences during South Africa's traumatic recent past, and the proceedings were public, attended by live audiences and broadcast on television. The catch was that in exchange for their testimony, perpetrators received immunity from prosecution. Some were contrite, and apologized directly to the families of those they had murdered. Others remained wooden and unapologetic, apparently unremorseful. They all went free.

Rosenbaum is quick to praise the South African model and similar truth commissions in Argentina, Chile, and Guatemala. But while these are promising examples of an approach that pursues truth above all else, they are inapplicable to the United States for two reasons. First, the needs of countries that have endured brutal, secretive regimes are unique. If the TRC sought to uncover truth at the expense of justice, it was because truth had been so hard for South Africans to come by during apartheid. Many families were willing to see murderers go free if that was what it took to figure out what happened when their sons or daughters disappeared—how long they lived, who killed them, where they were buried.

While it may well be that the "truth" of people's individual emotional hurts and trauma is obscured in the contemporary American legal system, we take for granted a more fundamental transparency in this country. It is unlikely that we would be willing to barter something so precious as justice for the kinds of truths Rosenbaum is getting at.

Second, for better or for worse, Americans love retributive justice. Rosenbaum believes that storytelling, truth, and apologies have a strong curative element. But through some curious and lamentable pathology, many Americans regard retributive justice as therapeutic too, part of the healing process, a necessary precondition for "moving on." When Timothy McVeigh was administered a lethal injection in 2001, so many people requested to attend the execution that Attorney General John Ashcroft chose to allow the event to be broadcast on closed circuit television. The satirical newspaper The Onion captured the manner in which this retributive killing became a necessary ingredient of catharsis, with a story describing the family members of McVeigh's 168 victims as "feeling '100 percent better.' "

The reader suspects that Rosenbaum is aware of this unseemly strain of the American psyche, this tendency to regard vengeance as medicinal, because of one telling lacuna in The Myth of Moral Justice: Rosenbaum doesn't discuss victim impact statements, which seem like a real-world example of the kind of storytelling he espouses. After the verdict, but before the sentencing, the victims of crimes or their families are given an opportunity to speak about the impact that the crime has had on their lives. Here is the "emotional backstory" that Rosenbaum claims the system lacks; here is a "legal option in which to grieve."

Proponents of victim impact statements argue that telling the story can allow victims to restore a human element to the proceedings by detailing not only the physical or monetary consequences of the crime, but the emotional and spiritual consequences as well. The statements are said to be useful to the emotional recovery of victims and their families. And yet Rosenbaum makes almost no mention of these statements, touching on them only once, in passing. Why? Critics of the statements argue that they unfairly bias the judge at the conclusion of the trial, and lead to harsher sentences than might otherwise be handed down. It is no accident that the statement is made at the sentencing phase. The victim or relative is not merely ventilating a public grievance, but seeking to persuade the judge that a stiff sentence is in order. The statements are a perfectly American answer to Rosenbaum's critique: The storytelling is therapeutic, the sentence even more so.

JUDGE KORMAN'S HEARING on the distribution of monies recovered from the Swiss banks provided a venue for people to tell their stories in the way that Rosenbaum's book envisions. It also, however, showed the limitations of such hearings. A stout Russian woman who runs a welfare center in Minsk took the podium, and spoke through an interpreter about the plight of survivors and other elderly Jews she tends to. But many of those in attendance believed that the suffering of the Russian Jews was either overblown, irrelevant to the task at hand, or both. As the Russian talked, a woman seated next to me whispered, "What has this to do with Swiss money?" Someone two rows ahead muttered, "There is starvation in Africa too." When the welfare worker finished, several people booed.

During a videotaped account by another Russian woman of coming back to the Soviet Union after the war and nearly starving there today, the American survivors in the room shook their heads and rolled their eyes. In the realm of storytelling, few personal narratives carry the
moral authority of the Holocaust narrative. But how do we respond when one survivor contradicts, belittles, or straight out denies the personal testimony of another?

When Korman called Thane Rosenbaum to the podium, Rosenbaum announced that he had not come as an advocate for any particular organization or nation, and that he was there primarily to "restore dignity to these proceedings." But rather than defend the right of all present to tell their stories, Rosenbaum launched into a protracted argument about how the money should not go to those from the former Soviet Union, because they have no legal claim to the funds, and that it should go instead to those who can prove that they had Swiss bank accounts.

It was a peculiar line of argument coming from a man who has just published a book claiming that the airing of grievances is as important or more important to recovery than financial settlements. Korman was focused on the moral issue of comparative need, pointing out that Jewish communities in the former Soviet Union were facing much bleaker prospects than those in the United States, where survivors have a greater social safety net, and where billions of dollars in reparations and 30 percent of the Swiss money have already been allotted. Rosenbaum replied that while the suffering of Jews in the former Soviet Union is undeniably tragic, in this instance, it's beside the point. It was precisely the kind of legalistic argument that Rosenbaum spends 300 pages condemning—an argument fixated on legal entitlements and uninterested in human suffering, one that was results-oriented and cold. He received a round of applause.

Patrick Keefe is a fellow at the Dorothy and Lewis B. Cullman Center for Scholars and Writers at the New York Public Library.

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