Alex Kozinski: the Prurient and the Personal
Here are a few S.A.T. questions for the legal community:
- how is the relationship between adult sexuality and prurient sexual interest like that between a dispute and litigation?
- Is our interest in Kozinski's sexual interests itself prurient, i.e., are we inordinately interested in Kozinski's presumed "inordinate[] interest in matters of sex." ?
- And what type of interest is inordinate?
"Inordinancy" is not, I think, a matter of time but of focus. One's sexual interests might be classfied as prurient if they are stirred by a single act, item or physical characteristic and disregard the humanity of the object of one's desire. In feminist terms, pornography objectifies people, elevating their parts above the sum of their parts and using them to satisfy our own -- but not their -- desires.
And how is pornography like litigation, Ms. Pynchon?
I've said this on too many occasions already. Litigation takes the texture, depth, dimensionality, and moral ambiguity out of disputes for the purpose of achieving what Justice Kozinski himself defines as justice: the application of the law to facts without regard to the outcome in a particular case. Kozinski wrote concisely and movingly about this business of applying the law to the facts in his Slate Diary, published in 1996 and republished on on the occasion of his public de-pantsing.
After more than 10 years as a judge of this [Ninth Circuit Court of Appeal] I find that the flow of cases begins to resemble a moving train, with each window revealing a still life of an individual human drama. The sheer volume of cases, and the fact that we rarely see the faces of the participants--just written words on paper and, sometimes, the arguments of lawyers--makes it difficult to remember that there are human beings somewhere looking to us with hope and yearning for a decision in their favor. The law, too, is quite complex. Cases often turn on legal technicalities that bear only a tangential relationship to concepts such as fairness and equity. Justice, we tell ourselves--and I do believe this--is done if the law is applied without regard to the outcome in a particular case.
The artifacts of litigation -- usually called "briefs" and sometimes sprung into life as depositions or trial testimony -- make a fetish of one or more aspects of a complex human drama. Litigation sucks the people out of the play, requiring both litigants and attorneys to objectify and demonize one another. By the time the "case" is ready to be "mediated" or "settled," the people with the problem often feel as if they long ago watched the litigation train leave with someone else's story in it -- that the "still-life" Kozinski observes at a glance through the moving window has little to do with the people and a lot to do with process.
Are we interested in knowing one another? Would a genuine interest in the man Kozinski be more satisfying, finally, than the briefly titillating party joke we might wish to make of him? Do we privilege the prurient or the personal?
If you'd like to know the man Kozinski -- and he is well worth knowing -- read about his fear of flying here or the joy of suburban tomato farming here. Take a journey back to Kozsinki's ancestors' Polish village of Dzurov to share the grim irony that a "scoundrel" grandfather inadvertently saved the Kozinski clan from the fate of their Jewish neighbors, all of whom now lie in a mass grave just outside of town. Read Kozinski on writer's block and suicide.
If you do this, you will no longer be capable of reducing Kozinski to a ribald joke or reveling in his public embarassment. You will recognize the humanity in him, which is the necessary pre-requisite to recognizing and forgiving the fallible humanity in all of us.
And litigation? Here's my unsolicited advice: Let your clients tell their stories to one another in a joint mediation session. Neither you nor they will thereafter be capable of reducing the "opposition" to a single demonic character trait.
I will say it again. Litigation is not about money. It is about justice.
The defense balks at paying Plaintiff at the point of a gun. The Plaintiff resists releasing the defendant from liability until satisfied that a wrong has been righted or never really existed in the first place.
You can accomplish justice with money. But you can accomplish it far more easily, and with far greater satisfaction for your clients, if you allow them to once again share the depth and dimensionality of their dispute with one another; harmonizing their mutual stories of injustice and betrayal.
In the meantime, I suggest we let Kozinski -- and ourselves -- off the hook by recognizing that the sum of the parts is greater -- and in the end far more interesting -- than the temporary public revelation of the smallest part of any man.
Other coverage of note:
Thanks to Anne Reed at Deliberations (this week's ABA Journal featured blog) for pointing us to the Volokh Conspiracy on how Kozinski's Web Site got "outed" in the first place.
If you follow the Volokh links, you'll eventually find Larry Lessig's Web for Dummies Explanation on Why We Shouldn't be Chortling over How Naive Kozinski Is and Why We Should Worry about Spreading This Type of Semi-Purloined Material Around.
Cyberspace is weird and obscure to many people. So let's translate all this a bit: Imagine the Kozinski's have a den in their house. In the den is a bunch of stuff deposited by anyone in the family -- pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family's stuff. He finds some stuff that he knows the local puritans won't like. He takes it, and then starts shopping it around to newspapers and the like: "Hey look," he says, "look at the sort of stuff the judge keeps in his house."
Read the rest of Lessig's great analysis here.
Kozinski's Ribald Sense of Humor from the WSJ Law Blog
Susan Estrich's 'take" in her post Good Humor, excerpt below:
If everyone who ever viewed or shared pornography were disqualified from judging the line between protected speech and criminal obscenity, we all would be in trouble. The problem facing Judge Kozinski illustrates what's wrong with the prosecution, not with the judge.
Concurring Opinion's post Judges Gone Wild with this observation dug out of a very lengthy post:
Which brings us to the broader point. Judge Kozinski's actions affect the reputation of the judiciary, on which rest foundations of the state, like public respect for the rule of law. To the extent that this public disclosure undermines public confidence in the judiciary or the rule of law, it's a very bad thing. There's a reason for the outrage that's expressed when the public hears about judges' bad behavior. As Stephen Gillers told the LAT, "The phrase 'sober as a judge' resonates with the American public."
The National Law Journal's compilation of Expert Opinion on the matter including legal ethics professor Ronald Rotunda's opinion that the material on Kosinzki's site was "demeaning, infantile, pornographic, [and] offensive," which just makes me want to see what type of internet porn the good Professor prefers.
KTLA video report here (from L.A. Times website)
Regulation of Obscenity Web Page with Pertinent Supreme Court Cases on the Issue
Naked Brunch's article UN-BANNING BOOKS How the courts of the United States came to extend First Amendment guarantees to include pornography by Jack Hafferkamp
