Protecting Friends and Enemies

The film Bridge of Spies is most often referred to as a Cold War drama – and indeed it is. Apart from this, however, it is also a story of the contours of the relationship between the construct of friends and enemies and the need to protect that enemy from potential harm. This relationship is developed in the setting of informal law that comprises tenets of social and moral norms.

At the beginning of the film, James Donovan – the protagonist and a well-established insurance lawyer – is approached by those acting for the government to represent Rudolf Abel, who is being charged in the US as a Soviet spy. Donovan is reluctant to accept this assignment, particularly given that his only criminal law work occurred as part of the Nuremberg trials. However, the chief partner in Donovan’s law firm is insistent that Donovan take the case.

It is clear from the outset that Donovan is a principled man and advocate who, once representing Abel, wants to provide him with thorough representation. From the first meeting onward, there is a sense of mutual respect between Abel and Donovan. Abel is an unlikely figure for a spy – not dashing and young but rather older and intellectual– and Donovan seeks to understand him. At the same time, he establishes a sense of protectiveness for Abel, trying to ensure that basic dignities are afforded to him. While Donovan continues to follow a zealous path for representing his client and crafting a defense, he is bluntly informed by the government and the judge that it is a case he cannot win. As his representation of Abel continues, Donovan is increasingly dismayed at the pre-determined outcome of the case. When the inevitable guilty sentence is handed down, Donovan does the unthinkable and appeals. The public is not as understanding of Donovan’s concerns for justice and fairness, and he rapidly finds himself at the center of a public controversy over appealing the guilty verdict of an enemy spy. Donovan faces public outrage, threatening comments, ostracising by the law firm partner who once encouraged him to take Abel’s case, and a shooting at his home. Ultimately, the appeal is denied and Abel remains in prison, where Donovan continues to pay him visits. These are not official visits as much as they are visits between friends – Donovan brings amusements for Abel and they slowly learn about each other as people rather than friend-foe or attorney-client.

Throughout the entire trial ordeal, the one victory Donovan is able to win is the judge’s agreement not to sentence Abel to death. Donovan is able to convince the judge that Abel is worth more alive than dead in the event that a prisoner exchange became necessary in the future. Donovan’s value as a clairvoyant is proven when an American pilot is captured by the Soviet Union and convicted of espionage. At this point, Donovan has returned to his private legal practice. An abrupt telephone call changes Donovan’s life yet again. This time, he is enlisted to assist as a private negotiator in brokering his prophesied prisoner exchange between Abel and the American pilot. Later, this expands to include a young American graduate student caught on the wrong side of the Berlin wall on the day it was sealed.

In Donovan’s role, he carries no official capacity and thus has no official protections when he is asked to travel to Berlin to execute the exchange. This of course makes Donovan vulnerable and his experiences in both East and West Berlin emphasize it. Throughout, Donovan is concerned with the lives of the captured Americans and particularly with Abel – while he is willing to assist in brokering the exchange he is not willing to undertake a course that will harm anyone. Abel is a hidden spectre during the negotiation but this does not mean that Donovan is unaware of the impacts of the potential exchange on all parties involved.

Finally, it appears that Donovan has negotiated an exchange of the two American prisoners for Abel. The pivotal moment occurs when the exchange of Abel for the pilot is set to occur. This is a very tense moment and a very personal one for Donovan and Abel, who know that their friendship is what brought them to that moment and also that it will end when the moment is complete. Donovan appears to have second thoughts and is concerned for Abel’s safety once he is returned to Soviet control – Abel remains unconcerned and philosophical, explaining to Donovan how he will know whether Abel is to be warmly welcomed at home. In a poignant moment, Donovan watches Abel cross into Soviet control and they share a look before they each disappear into cars headed for other sides of the world.

The relationship between Donovan and Abel is poetic in many respects, and is an excellent microcosm for the realisms of the Cold War’s impacts on people rather than simply at the state level. Beyond this, however, the relationship demonstrates the informal ways in which friend may protect foe even when the public sees only the enemy. The judicial proceedings against Abel were portrayed as designed to yield a specific result and necessary simply to provide the American public – and the world – with proof that the US justice system applied equally to friend and foe. Indeed, for official purposes Abel’s life was spared only because of the potential utility it could have in the future. The formal was thus protecting the enemy only to the extent that the enemy could be of use.

In contrast, Donovan protects Abel – the enemy – through the informal. At first, this is because of Donovan’s personal and professional sense of morality. Later, this is because of the personal relationship that develops between Donovan and Abel and Donovan’s desire to protect Abel as a friend rather than simply as a client. It is also the informal that allows Donovan to act as a private negotiator and broker the exchange of 3 people deemed enemies by one state or another, thus seeking to protect all 3 by returning them to their friends. Cinematically, the informal makes for a touching story and ending. In application, the film demonstrates the importance of the informal as a means to fill in the gaps created by the formal.

Coming to Identity

Society uses ages of majority to define personal identity in many ways, for example the ages at which one can drive a car, vote, serve in the military, marry, and legally achieve majority and independence. These are all indicia of adulthood and coming of age. They are also benchmarks through which identity can be created – as member of society with full rights and privileges, a driver, a voter, a soldier, or a spouse. Combined, law creates a written system through which one comes to identity as well as age of majority.

The film Creed documents another phenomenon – an unwritten system of coming to identity – through the story of Adonis “Donny” Johnson’s evolution into Donny Creed.  The film begins with a young Donny fighting at a group home. Shortly afterward, a woman, Mary Anne, visits Donny and makes reference to his father. To Mary Anne’s surprise, Donny responds that he has no father. It soon becomes clear to the audience that Donny’s father was Apollo Creed, who died prior to Donny’s birth, and that his birth was the result of an extramarital affair. It also becomes apparent that Mary Anne is Apollo’s widow. To honor Apollo’s memory, Mary Anne takes Donny in and gives him a home – teaching him about his father while shunning the idea of him fighting.

The next scenes of the film show Donny as an adult – at least in terms of age – boxing in Tijuana and then working in a corporate position in Los Angeles. Although successful, he seems uncomfortable in his office, as if he is a child playing dress-up. In a bold move, Donny presents his boss with a letter of resignation, explaining that he feels the need to do something else. He then goes to the boxing gym he has been using – the gym affiliated with his father – and announces that he is ready to become a professional boxer. His trainer shuns this idea, belittling Donny’s achievements and denying the idea that Donny would be able to fight professionally – in essence, denying that he can live up to the family legacy. Despite the humiliation, Donny is undaunted. He tells Mary Anne about his plans and she is visibly upset, recalling that Apollo himself lost his life in the boxing ring. Still, he moves to Philadelphia to train.

The film then shows the audience a Philadelphia restaurant – Adrian’s – at the end of the evening. Inside, the walls are covered in photos. The restaurant is empty except for Donny, who is transfixed by one photo. As he stands staring at the photo Donny encounters the restaurant’s owner, Rocky Balboa. Rocky is taken aback when he is barraged with questions about the photo depicting the epic fight between Rocky and Apollo. Donny is at first reluctant to reveal his relationship to Apollo but ultimately does, shocking Rocky who, like the rest of the world, was unaware that Apollo had an illegitimate son. Donny asks Rocky to train him but Rocky refuses, arguing that Apollo would not want him to be a boxer.

Donny rents space at Rocky’s old gym and is persistent in his quest to have Rocky train him. Throughout all of this, Donny uses his mother’s last name – Johnson – and does not divulge his father’s identity to anyone. Eventually, Rocky stops by the gym. Rocky attracts attention, particularly from the gym’s owner, who wants Rocky to train his own son. Rocky politely declines and proceeds to work with Donny on an increasing basis, annoying the gym’s owner.  The gym’s owner soon proposes to Rocky that they set up a fight between Donny and his son. Knowing that the son is an advanced boxer, Rocky is reluctant to accept the offer. Donny, however, is insistent that they accept the offer and brashly believes that he can win. Rocky agrees but insists that Donny move in with him and begin training at another gym.

Donny is already comfortable in his apartment and has found a love interest in Bianca, his neighbor. However, for the sake of winning he agrees to move into a spare room in Rocky’s house, where he is surrounded by the history of Rocky, Apollo and boxing in general. Rocky’s training regimen is severe and “old school,” focusing on discipline and mental training as much as on physical training. At first, Donny fights some of these measures but ultimately he begins to thrive under them. As Donny Johnson, there is no expectation of him from anyone other than Rocky, and even then Rocky simply wants to see what Donny can do. Certainly, Donny wants to box because his father was a boxer and wants to live up to the image of his father that he has created in his own mind but his focus seems to be more on the winning aspects of his father’s legacy than anything else.

Before the fight, the gym owner tells Rocky that he’s done some digging and knows that Donny has “Creed blood.” Rocky explains Donny’s reticence to reveal his name and asks that this be kept quiet. Donny wins the fight. The next morning the secret is out – somehow, the sports media becomes aware that Donny is Apollo’s son. It is easy to see that Donny is conflicted over the revelation – it is no longer necessary to keep the secret, but now the world of boxing and the world in general views him differently. There is also a deeper personal question of who he is and what his next objective will be professionally and personally.

The latter question is answered when an offer comes to fight a well-known English boxer, Ricky Conlan. Rocky wants to decline the offer, realizing that Conlan simply wants to fight a Creed. This is confirmed when Conlan’s manager makes the fight contingent on Donny fighting as “Creed” rather than “Johnson.” The appeal of the fight is too much for Donny to resist. This is more than hubris, however. For the first time he embraces the idea that he is not only Apollo’s son but also that he can in fact live up to the family legacy. In the moment when he tells Rocky that he wants to take the fight – conditions and all – he begins the process of coming to and claiming his identity. While training, Donny is repeatedly overcome by doubts and is particularly offended when he is referred to as “Baby Creed.” When the time for the fight arrives he is visibly nervous and Conlan tries to play on this by taunting him about being born into a legacy he cannot live up to.

Mary Anne sends Donny a pair of boxing shorts with the same design as Apollo’s and both the Creed and Johnson names on them. This seems to encapsulate who and what he is fighting for. The fight is a brutal battle that goes the full 12 rounds against all expectations. Both fighters are bloodied and exhausted but in a contested vote Conlan is deemed the winner. Conlan’s attitude has visibly changed and he is respectful of Donny as a fighter, seeing past the association of being simply Apollo’s son. The crowd is equally accepting, chanting “Creed” in support of the underdog it jeered 12 rounds beforehand.

The film is not a traditional coming of age story – legally, Donny has already come of age. Rather, this is a coming to identity story, meaning that Donny goes through a variety of stages in order to claim his own identity and take possession of his name, with all that it represents. Throughout the film, Apollo is a constant figure – sometimes as an ideal to live up to and sometimes as a source of questions and lore. No matter the capacity, Apollo created a name and a legacy for himself and Donny is acutely aware of the weight that goes along with the name.

Donny’s initial choice to box as Donny Johnson was not an attempt to deny his father as much as to make a name on his own. This is admirable but masked the inner knowledge that he was indeed Apollo’s son and there would always be a legacy to live up to. Donny had to go through a variety of stages – akin to reaching various steps toward full majority – in order to claim his identity and reconcile his family legacy with his own. This could only be done after a series of tests – being revealed to the media, facing the unwanted attention of the Creed name, and fearing that he would not live up to the legacy created by the father he never knew, to say nothing of the actual fights themselves.  

This also required that he create his own family and support system out of people who did not seek him out because of his name and who saw him in the same light once they knew his name. Ultimately, Donny’s coming to identity required him to embrace who and what he was through his own aspirations. Once he realized that he could in fact live up to the family name and realized who he was as a person, notably during the fight, Donny came to his identity. It is through this unwritten process that we see the establishment of a person who is able to function fully for and as himself while understanding who and what he is.

Criminal Law, Morality and The Imitation Game

Every year when I teach my Criminal Law & Procedure class at Robson Hall, we invariably come to the topic of harm and morality rather early on. Specifically, we speak about the basis for prohibiting certain conduct as "criminal". Should the state only criminalize behaviour that is essentially harmful to other persons, or should it also prohibit conduct that may solely be based on purely moral considerations? 

An important example used to illustrate the problem of a strictly morality-based rationale is the criminal prohibition of consensual sexual relations between individual adults of the same sex. During the 1950s, a British parliamentary committee was created to examine the decriminalization of prostitution as well as consensual sexual relations between same-sex partners. After much deliberation, the committee recommended the latter. This met with certain opposition. One of the more famous opponents to such decriminalization was Lord Patrick Devlin who argued that morality on its own was a perfectly sound basis for legislating with respect to the criminal law. To determine what constituted the common morality, Devlin suggested that we must examine the feelings of the "reasonable man" on the Clapham bus. The forces behind the moral law were, according to Devlin, intolerance, indignation and disgust. Devlin observed that the reasonable man was not necessarily rational. In the 1960s, Lord Devlin's position did not win out. The prohibition was repealed. To his credit, Devlin later reversed his earlier position and eventually supported legislation changing the law. Similar developments took place in Canada in 1968.

 
Before these legislative changes took place, many people were convicted of criminal indecency based on nothing more than (consensual) sexual acts. One such person was Alan Turing, a leading British code breaker during the Second World War. He and his team decrypted numerous coded Nazi messages that were critical to the British war effort. Following the war, he was arrested and convicted of gross indecency. As an alternative to incarceration, he was chemically castrated. After a year of government-mandated hormonal therapy, Turing committed suicide.

Turing's story was depicted in the film, The Imitation Game (TIG). Much of the film concerned his team's painstaking but ultimately successful efforts to crack Germany's encryption code. Nevertheless, the film also serves as an important creative work concerning law and popular culture. As a product of popular culture, TIG illustrates the brutality of the criminal law when deployed to enforce the morality and prejudices of Devlin's "reasonable man". Indeed, interspersed throughout the film are scenes of Turing's social isolation as an awkward genius and closeted gay youth in a country and culture which legally and socially did not tolerate homosexuality. Yet the harshness of the law was more prominently illustrated when after having played a pivotal part in the war effort against the Nazis, Turing was charged, convicted and cruelly punished (though given the nature of the crime - any punishment would arguably have been cruel). By the film's end, the audience learns that Turing was granted a posthumous royal pardon amid the 49,000 men who were similarly and unjustly convicted but received none. While at one level, TIG illustrates the harm inflicted by discriminatory laws on an unsung hero, it reminds us that many others, heroes or otherwise were targeted and victimized by such laws.

As a law film (or at least one aspect of it), TIG engages in "cinematic judgment". As noted law and film scholar Orit Kamir observes, law films can engage their audiences in cinematic judgment by training and moulding viewers in judgment while examining legal norms, logic and structures. Another way to consider this, in Kamir's words, is that law films perform acts of wide-scale legal indoctrination. She writes: "A law-film can be read as passing cinematic judgment when, in addition to portraying an on-screen fictional legal system, it offers alternative cinematic constructions of subjects and societies, of justice and judgment." Building on this, Kamir asserts that  "a law-film may constitute a community and value system that criticizes or undercuts those supported by its fictional legal system."

TIG performs acts of legal indoctrination against discrimination. It illustrates, at least with respect to the human rights of sexual minorities, the perils and injustices perpetrated through the imposition of morally based criminal legislation. TIG encourages judgment and critique of an unjust and unfair system that targets vulnerable persons, here, in particular, a war hero. Rather than a deviant, TIG reconstructs Turing as a heroic subject who worked long hours to serve his country and fight against the Third Reich. In so doing, it undercuts the value system portrayed in the movie, which reflected the norms of an earlier time.

TIG is both an example of being critical of past discrimination toward sexual minorities and its present and future. One cannot but help notice that the film is created in a period where there is a raft of discriminatory penal laws singling out LGBT communities that currently exist and/or contemplated in numerous states and societies. Accordingly, TIG is also prospective and implicitly engages in judgment toward states that currently engage in discrimination through the criminal law. 

As I discussed in an earlier post, films and other visual depictions may be useful tools with respect to legal education. As is the case here, the discussion of harm and morality as a basis for legislating criminal prohibitions is not an abstract exercise of socio-political power. It is one that had/has a tremendous impact on those affected by morality-based legislation. 


Sources

"Family of Alana Turing to Demand Government Pardon 49,000 Other Men" The Guardian (22 February 2015).

Jeffrey Gettleman, "Uganda Anti-Gay Law Struck Down by Court" The New York Times (1 August 2014).

Orit Kamir, "Why ‘Law-and-Film’ and What Does it Actually Mean? A Perspective" (2005) 19:2 Continuum: Journal of Media & Cultural Studies 255.

Anna Leach, "NGO alert: Malaysian court upholds anti-trans law" The Guardian (12 October 2015).

Grounded Law

Often, the idea of living without ties to a centralized, law creating and enforcing body can be portrayed as ideal. However, in the film The Martian, audiences are presented with an entirely different construct of jurisdiction from the perspective of those on Earth and one person living outside of it.

At the beginning of the film, the audience is introduced to the crew of a NASA research and information gathering mission to Mars. The crew has clearly worked together and formed a deep bond that is tested when a sudden storm compromises the safety of an active information gathering session and threatens the lives of all crew members. While the crew members race to escape the planet one crew member, Mark Watney, is struck by a piece of flying debris. From his lack of responsiveness and the severity of the blow, it appears that he is dead, and the mission commander and crew struggle with the desperate decision to leave his body behind in order to save everyone else. Though anguished, the crew ultimately leaves Mars and Watney behind.

Unbeknownst to the crew, Watney regains consciousness after the storm clears. The audience is the only witness to Watney’s painful realization that he is indeed alone on Mars and without a functioning communications system to reach NASA, although he is able to access the mission basecamp for shelter and basic resources. Watney does not resent his crewmates for leaving him behind – quite the opposite, he is glad that they seem to have escaped the storm unscathed.

These scenes are juxtaposed with scenes from Earth, where there are two reactions to Watney’s apparent death: personal and political. Personally, many who worked on the mission are quite upset by Watney’s apparent death and the decision not to send any form of rescue mission to retrieve his body or confirm his death. Politically, agency heads appear concerned about the potential impact of the fallout from Watney’s death on the future of the entire agency. As a result, there is a desire to move on from Watney as quickly as possible in order to deflect attention from any allegations of agency failures. Despite this, there is a core group that believes it is the agency’s obligation not to consign Watney’s body to Mars.

On Mars, Watney would likely agree with that sentiment and yet there is no overarching sense of panic. There is of course a natural sense of desperation and frustration that strikes him in waves. However, the audience also sees Watney as functioning and maintaining the basic laws and morals that he brought with him from Earth. He is forced to open his crewmates’ personal bins in search of food and other survival items but does this in a way that evinces remorse (although this remorse is tempered with a good degree of humor that demonstrates his continuing humanity throughout the ordeal). He maintains program protocols such as daily check-ins via video recordings (though no one else can access them), recycling procedures and even uses the essential unwritten laws of society – such as table manners – during his quotidian activities. Throughout, there is a sense that Watney is aware of his stark freedom from earthly law and morality on Mars and yet does not believe that he is in fact unbound from these simply because he is outside of earthly territorial jurisdiction. When he is required to travel a distance on Mars in order to eventually be rescued, Watney jokes about being a “space pirate” and at the same time reinforces his understanding of the applications of earthly international law. In this way, holding onto legal tenets can be seen as a way of preserving Watney’s identity and humanity.

Watney realizes that he must try to re-establish communications with NASA. At the same time, a dedicated team from NASA remains convinced of the potential to find his body – living or not. Both Watney and the NASA team members are stunned when they are eventually able to reconnect. This provides Watney with a much-needed sense of connection to the outside world and hope for his potential survival. At the same time, the discovery that Watney is still alive shifts the burden to NASA to determine the appropriate course of action. Again, there is a split between those wishing to preserve the agency by not risking another mission and rather consigning Watney to Mars for years and those who believe they must retrieve him because anything less would be immoral and illegal. This includes the commander of the mission to Mars and Watney’s crewmates, who ultimately decide to retrieve him in accordance with a plan that involves the use of Chinese resources as well as American resources. To the commander and crew this is a basic question of their duty to a crewmate and particularly of the commander’s legal and moral responsibility to her subordinate. Those on the ground, who spend months of their lives obsessing about ways to bring Watney home, also see it as a moral duty and are not above asking another country for assistance when the issue is life. The deepest objection is seen as coming from quarters who attempt to politicize the law by arguing that the agency’s duties to Watney ceased, however even these views are ultimately changed by public pressure that is based on morality.

The Martian is consistently oriented around the morality of saving Watney. The plan to save him is technically difficult, involving great personal risk and uncertainty for a number of people. They undertake this risk willingly, however there is a strain on them and on Watney, who questions whether he is worth the risk. Throughout this, he continues to recognize being bound by legal tenets from Earth – even those relating to outer space. In the end, Watney is safely brought home after several very close calls during the rescue.

The Martian is in itself a fascinating film that forces audiences to look inward and question how they might react in circumstances such as Watney’s. A subtle thread throughout the film is not only the immediate reaction but how far the audience would believe itself to be bound by law and morality in a situation such as Watney’s, where there is no one else to judge or even observe. This is balanced against another theme – that of how far one believes one is bound by these same laws and moral tenets when everyone is looking and seeking to find fault. This leads to the essential issue of how far one is required to go when the future of something larger than oneself is at stake. Although in the immediate these questions are answered to a certain degree by the overall plot, The Martian challenges audiences with these larger questions and presses the question of how far law is grounded.

Visualizing Administrative Law: The Case of Lean on Me

Let's face it, the notion of "administrative law" doesn't infuse the ordinary person with a great deal of excitement. That's of course not surprising in the least. Even if most people don't have an inkling as to what administrative law is about, few people become electrified by the notion of anything that might be characterized as "administrative" - notwithstanding that it is attached to law. As soon as one gets an inkling that a great deal of administrative law (at least in its Canadian incarnation) concerns ideas of procedural fairness, the mention of procedure is enough to send most into a somnolent state and cure the worse cases of insomnia. This is likely what faces any number of students who take or are mandated to take a course in administrative law in law school leave alone the general public. 

However reasonable such assumptions, sentiments and/or apprehensions may be, administrative law speaks to incredibly important issues concerning public decision-making. Much of what constitutes government action and decision-making today, for better or worse, takes place not in legislatures or courts, but through administrative agencies, departments, tribunals, boards, arbitrators, officers, and a whole slew of other actors both at home and abroad. Some decision-makers are more tangibly tied to a government and government policy, while others are independent. Their decisions impact on people's lives in countless ways - the acceptance or refusal to grant refugee status, any license, citizenship, parole, a pardon, extradition, a passport, a visa, release from mental health institution, welfare or other forms of income support, as well as worker's compensation. Administrative tribunals adjudicate, among other contests, labour disputes, conflicts concerning intellectual property, and human rights complaints.

The scope of administrative law is quite simply breathtaking. As a law school educator who teaches administrative law, there is no shortage of cases for my class and I to examine. Yet, the focus of an administrative law course (and certainly mine included) can tend to dwell in some measure on how difficult it is, in most cases, to practically challenge the merits of administrative decisions before a reviewing court. In addition, we often look at whether decision-makers followed a fair process in arriving at their decisions. The failure to provide a fair process may result in a court quashing the decision and sending it back.

As with other areas of law, the written word, manifested through court judgments, constitutional provisions, statutes, regulations, guidelines, cannot always (and let's be real, often don't) capture for many the true drama of administrative decision-making and their implications. This is where films and television can play an immensely important role in making visible that which is often invisible or largely unnoticed. After all, we absorb large volumes of information today via audio-visual storytelling. Through such narratives, one can illustrate the dramatic and compelling nature of procedural fairness (or the lack of it), and indeed the importance of due process more generally. 

To give an example of this, I'll discuss here a clip from a film that I recently showed in my own administrative law class as a launching point to discuss the significance of procedural fairness. The film is Lean on Me. Briefly, the film stars Morgan Freeman who plays a disciplinarian principal/educator named Joe Clark (based on a real life individual with the same name). He is recruited to transform a crime-ridden school infiltrated by drug traffickers and infested with chronic violence and chaos. The disorder afflicting the school is apparent in the opening sequence of the film, and for good measure is set to Guns 'N Roses' "Welcome to the Jungle" as seen here:

 

In order to begin the needed change to alter the failing character of the school, Clark takes a significant and radical step by expelling dozens of errant students, the worst of the worst, as illustrated in the following clip:

The scene (which is the one I screened in class) shows in a short minute or so a number of crucial concerns connected to procedural fairness as they are understood in Canadian law. This is certainly the case even if the context is American in nature. These concerns include the idea of sufficient notice before a decision is taken, disclosure of information which served as the basis for the decision, and the presence/lack of any participatory rights (e.g. a hearing) before the decision is reached. It's obvious from this scene that none of these things were provided to these students, even if we are to assume that they were the miscreants they were alleged to be. The students are constructed as a singularly cancerous contingent that must be expelled to save the remainder. Indeed, this is largely how Clark justifies it at an emergency parent meeting convened the same day as the mass expulsion shown above. 

As part of the course, one of the issues discussed in connection with procedural fairness is the content and level of fairness owed. This will usually be dependent on an assessment of five non-exhaustive factors discussed in a seminal decision by the Supreme Court of Canada - Baker v Canada. Through these five listed factors, courts may assess the content of the duty of fairness and what degree of fairness may be owed to someone impacted by a decision. For example, is someone entitled to a hearing, and if so, what would the hearing look like? Would it be an oral hearing where an individual has the face-to-face opportunity to plead their case or is one's ability to address a decision-maker/executioner limited to written submissions?

The ability to parlay with a decision-maker in person with respect to their decision may be crucial. It offers a chance to the individual to humanize him or herself and forces a decision-maker to contemplate the impact of their decision on a person. In the second clip displayed above, there was clearly no ability to do so. Not too long after the second clip, a student who was expelled in Clark's mass expulsion approaches the latter to ask him to reconsider his expulsion. The following is what transpires:

  

This impromptu rooftop "hearing", which is more akin to an inquisition, allows the student to plead his case and to secure his re-entry into the school and this discrete community. The scene shows that it has its desired outcome. Rather than being one who is undifferentiated among a mass of drug-dealers or other consumers, the student is able to have his case considered as an individual. It is in stark contrast to the earlier mass expulsion scene. The long-term impact as the film progresses becomes evident as the student turns things around (though with some comical hick ups along the way). The student's ability to seek a hearing is vindicated. 

A larger discussion of Lean On Me is beyond the scope of this post, but in many ways the film raises a number of interesting procedural fairness concerns. The Clark character approaches the larger transformation of the school in rather authoritarian and menacing ways that raise other procedural concerns.

As pedagogical tools, film and television clips highlight a number of administrative law issues which may not be easily contemplated or accessible through a more standard examination of case law and other legal sources. Such visual storytelling can highlight the range of administrative decision-making - from more informal processes to those which resemble trial-like mechanisms warranting a higher level of procedural fairness in accordance with natural justice. This is where decision-making more closely resembles judicial or quasi-judicial adjudication and calls for a greater degree of fairness.  

In coming posts, I shall endeavour to address other depictions of administrative law and decision-making in film and television and their importance, among other things as an educational tool to make these processes more accessible and to highlight the issues they raise.

Contextual Nationality

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The Woman in Gold is an artistically and emotionally stunning film that takes the audience through the personal and legal struggles connected with the painting “Portrait of Adele Bloch-Bauer,” one of Gustav Klimt’s most recognized works. The law involved is well portrayed and doubtless there is much to be said regarding the ways in which the relationship between law and those impacted by it is portrayed. There is, however, a more subtle form of pluralism that is the subject of this post.

Maria Altmann, one of the main characters of the film, is the litigant involved in the flight over “Adele.” Maria was born in Austria to an accomplished and artistic family that also was wealthy and Jewish. Her connection to “Adele” is as poignant as it is simple – the subject of the painting was her very dear aunt.

Throughout the film via flashbacks, the audience is transported to Austria before World War II and sees this world through Maria’s experiences. The audience is introduced to Maria’s family – her sister, her doting parents and uncle and aunt, and, eventually, her husband, Fritz. The audience is drawn into this family and shares its joys – particularly Maria’s powerfully joyous wedding – as well as its deep sorrows – from the internal family sorrow of her aunt’s death to the externally imposed sorrow of an Austria that comes under the authority of the Nazis. Ultimately, her uncle and sister leave Austria before the occupation but Maria and Fritz elect to stay in Vienna with her parents. The film heart achingly portrays the occupation of the Altmann family home by Nazis on trumped up charges and the confiscation of family possessions, including “Adele.” Eventually, Maria and Fritz have an opportunity to escape Vienna, although her parents stay behind and she never sees then again.

There are few flashbacks of Maria in the US other than a scene in which Fritz is attempting to teach her English. In this scene, Maria finds out that her father has died in Austria, severing another connection to her homeland. The severing of Maria’s connection to Austria is reflected in her constant reference to “Austrians” and insisting on speaking in English to a Viennese hotel clerk although he notes that she was born there. However, when she sees her former apartment building and the places she used to visit she is clearly transported to a place with which she has a connection and still identifies.

At the same time, film chronicles the personal journey of Randy, the lawyer son of Maria’s friend, whose family Maria knew in Austria. Randy is reluctantly roped into assisting Maria pursue a claim to “Adele” against the Austrian government on the ground that it was illegally appropriated during the war. Randy initially sees the case through an economic lens – “Adele” was valued at $100 million. Throughout the film, he learns about his family in Austria and their experiences before and during the war. He visits places where his grandfather lived and is exposed to the different trends of thought regarding the war – from denial to suppression of events in order to move forward to desires for open dialogues about actions under the Nazis.

One of the pivotal moments of the film occurs when Randy presents Maria’s claim to before an arbitral panel. The Austrian government claimed that the painting was a national treasure and belonged to and in Austria. Randy’s argument was equally evocative, noting that both he and Maria were Austrian. For him, this is a key personal moment of self-realization that he shared the nationality – and identity – of his grandfather. Regardless his ability to assert this as a matter of law, there was a deeper connection to identity that in this context could not be denied due to place of birth or laws. In short, Randy’s identity shifts throughout the film.

While the panel deliberates, an official from the Austrian government approaches Maria to offer a settlement allowing “Adele” to stay in the country as a national treasure. Maria responds with a reference to her aunt’s Austria (and, presumably, her own) versus the state that exists today and that “Adele” belongs to her Austria. Here we again see the use of nationality in context. For Maria, her aunt lived in a certain version of the country, one before the outrages of the Nazi regime and those who were complicit with it. Her aunt’s nationality was based on the context of a certain time period, one in which she was able to live unimpeded by hate. Similarly, Maria’s nationality was tied to a time and a place – to the state in which she was born but which ceased to exist even though she might be eligible to retain that nationality as a matter of law. Her nationality then became American, as that was the place in which she and Fritz were able to make a home and the context of the bulk of her memories.

There are many lessons from the film. One essential lesson is the existence of what can be termed “contextual nationality,” referring to the idea that nationality is more than a legal construct in strict terms. Rather, it is an identity and experience-based construct that can shift and that can share an intimate connection with time and place. It focuses around a law that is written in experience and identity – sharing a time and a set of values that links one to a nation even if these times and values no longer exist. In some ways, it is contextual nationality that merges the past into the identity of the present by incorporating a greater understanding of the factors that mould constructs of nationality.

Governing cuisine

The film Burnt  is a tale of personal redemption complete with reflection, atonement for past sins, vindication and, ultimately, success. The film takes the audience into the world of elite chefs in London (and to a lesser extent Paris), where family exists in the form of a tight-knit kitchen and where a combination of intense passion, dedication and ego is necessary to produce what can only be described as culinary art. It is a seemingly glamorous world that masks often ugly realities – addiction, broken personal lives, and personality disorders to name the most prominent.

Within this setting, there are many forms of unofficial laws and rules that inform the culinary community and keep it together as a functioning entity while at the same time serving as an educational environment in which chefs are challenged to invent and reinvent themselves while they teach the chefs who work with them. The kitchen is presented – with some great degree of accuracy – as an autocracy in which the head chef is the ultimate source of authority and approval. Chefs with particular specialities are tasked with ensuring the perfection of their jurisdictions and ensuring that those who work under their oversight comply with the rules of their jurisdiction and the larger kitchen. From this point on decreasing power and authority granted to those in the kitchen, and each member of the kitchen is required to know his/her place in the governance structure.

As depicted in the film, in this hierarchy the failure of one level to comply with the requirements of appropriate jurisdiction have disastrous impacts and potentially undermine the kitchen both as an internal matter and among members of the outside communities. There is perhaps no better illustration of this than when there is an (erroneous) encounter with supposed Michelin restaurant reviewers and one of the sous chefs commits a deliberate act of sabotage that completely undermines the integrity of the kitchen to the outside world while also creating turmoil in the accepted strictures of conduct within the members of the kitchen community. In the aftermath there is a good deal of soul searching by the chef, which leads to a reorientation in many of his policies in order to create one unit of functioning and authority where each of the sub-units of jurisdiction work together. When the real Michelin reviewers arrive, the kitchen is able to execute the menu perfectly as a cohesive unit, leading to the advancement of the kitchen’s standing in the culinary community.

As is perhaps expected from most films, Burnt takes audiences on an allegorical adventure, seeing the main character through from failure and self-loathing to success and stability. Beyond this, however, the film provides insights into an often unseen community that functions on a unique governance system based on autocracy on hand but interlocking dependence on the other.

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