Category Archives: Law: Everything Else

Thoughts on the Polansky Trial

Lots of people apparently find Roman Polansky’s libel victory over Conde Nast to be an odd result. The claim was that Vanity Fair falsely asserted that in 1969, while en route to the funeral of Sharon Tate, his wife, who had just been murdered, Polanski groped and propositioned a Scandinavian model, promising to “make another Sharon Tate out of you.” Polanski denied it, in tears, and the jury agreed. (England has generally abolished juries in civil cases but still uses them for libel cases.)

The trial did indeed have several strange features. The first was that the plaintiff was not a nice person: Roman Polansky is a long-time fugitive from US justice, having fled while on bail before sentencing, after admitting the statutory rape of a 13 year old girl. This fact caused the second odd feature of the trial: fearing extradition to the US to serve his sentence were he to set foot in the UK, Polansky was allowed to give his evidence by video. Which of course exacerbates the third apparent oddity of the trial: that it was held in the UK (a country with pro-plaintiff libel laws), when the Vanity Fair, the magazine in which the article at issue appeared, is US-based.

Actually, it’s not that strange. Vanity Fair circulates in the UK, so it’s fair game there — and since its sold on newsstands and (I imagine) to subscribers, it’s considerably fairer game in the UK than, say, web pages which are delivered for free and by the readers decision to pull a page rather than a publisher’s decision to send physical copies to the jurisdiction.

The decision to allow the video testimony is a closer call; I could certainly understand a court saying that if plaintiff has unclean hands he shouldn’t come to court. And I’m no great fan of video testimony in general. But idea that the courts should be open to do justice even in the exceptional case where the plaintiff cannot risk being in the jurisdiction has its admirable qualities too.

The least strange aspect of this decision is that Polanski won.

The defense tried to blacken Polanski’s name by suggesting he slept around. He admitted it. End of issue: that sort of tactic doesn’t work anymore, at least against men. More substantive was the suggestion that a fugitive from justice for statutory rape is the sort of person who can’t be libeled — like (traditionally) a prostitute or (contemporaneously) a war criminal. What overcame that, I suspect, was the seeming cruel falseness of the anecdote, and Polanski’s emotional reaction to it.

I began to suspect Polanski might win as soon as I learned the name of the source of the allegation in question: Lewis Lapham.

Yes, that would be the same Lewis Lapham who wrote and published a fabricated summary of the speeches at the GOP convention — a summary written before the speeches were given, but published after it.

OK, Polanski is not a nice guy. But despite the fancy pedigree…

Mr. Lapham has lectured at many of the nation’s leading universities, among them Yale, Princeton, Stanford and the Universities of Michigan, Virginia and Oregon. He is a frequent guest on television and radio talk shows both in the United States and in England, France, Canada, Germany and Australia. He was the host and author of the six-part documentary series “America’s Century,” broadcast on public television in the United States and in England on Channel Four in the autumn of 1989. Between 1989 and 1991 he was the host and Executive Editor of “Bookmark,” a weekly public television series seen on over 150 stations nationwide. Lapham is a member of The Council on Foreign Relations, The Century Club, the Advisory Council to the New School University and Chair of the Board for The Americans for Libraries Council.

… Lapham’s credibility as a reliable reporter must surely now be reduced be zero?

After all, Lapham testified that while parts of his story were wrong, like the date, the key allegations were true:

Testifying in a libel case setting Mr. Polanski, 71, against Vanity Fair magazine, which reported the anecdote in an article in July 2002, Mr. Lapham said the incident had embedded itself in his memory.

“I was impressed by the remark, not only because it was tasteless and vulgar, but because it was a cliché,” the 70-year-old editor said.

And now, to ice the cake, the model whom Polanski supposedly tried to pick up — who wasn’t called to testify in the libel trial — says no such thing ever happened.

On balance, this verdict feels like justice. But I fear it will not have the consequences it should. In ye olde days, a man disgraced by being found by a jury to be a less believable witness than a rapist would resign his clubs and go hide out somewhere and take up drink. Now, I suppose Lapham will just write about it. But whoever publishes it better hire a good fact-checker.


Update (7/26): Over at the Yin Blog, Tung Yin makes an excellent point:

If Polanski has been libeled, he deserves to be vindicated. But he also deserves to serve his sentence. So a truly just result would have had him testify by video — because he was in one of our prisons.

I should add that one of the reasons why I think the issue of allowing the extraterritorial testimony is genuinely hard on these facts is that there’s zero chance that denying relief might compel Polanski to travel and risk serving his time. Thus, the case for withholding access as a coercive means to compel compliance is weak; the withholding must be justified either as retributive (which is not the UK court’s job here) or as somehow beneath the court’s dignity. Counterbalancing the latter is the idea that two wrongs don’t make a right.

Posted in Law: Everything Else, The Media, UK | 8 Comments

Lessig’s Other Battle

Lawrence Lessig and John Hardwicke Fight Sexual Abuse and the American Boychoir School. Awful. Amazing. (Spotted via the increasingly indispensable Ernest Miller.)

Larry Lessig is a brave guy.

Posted in Law: Everything Else | 3 Comments

.pdf Versions of Official US Reports

This looks useful!

The Volokh Conspiracy – PDF Copies of the United States Reports: Most lawyers and law students know that that the U.S. Supreme Court website posts slip opinions of recent cases. What you might not know is that as the Court publications unit finalizes its slip opinions and eventually compiles them into bound volumes of the United States Reports, it also makes the entire contents of individual volumes of the United States Reports available as individual .pdf files. The service begins with Volume 502 (October 1991), and currently goes as far as Volume 538 (through May 27, 2003). This means that you can download entire volumes of the U.S. Reports and save them to your hard drive for subsequent searching and use offline — with the correct pagination, italics, appendices, charts, and graphs — all for free. Really cool, at least if you're into that kind of thing.

Posted in Law: Everything Else | 2 Comments

Unbound

It must be fun to teach the kind of students who start interesting new Internet-based law journals.

Somehow I will have to find the time to read Unbound: Harvard Journal of the Legal Left…but maybe not until after I write some exams.

The last weeks of the semester are always such a busy time: so much to do, and less energy than usual…

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Brief and to the Point

This motion in Monica Santiago v. Sherwin-Williams Company, posted by Mark A. R. Kleiman, seems too good to be true. And it's funny.

Posted in Law: Everything Else | Comments Off on Brief and to the Point

Law at the Sharp End

Jaye Ramsey Sutter (“in a bad mood & telling you about it since 1962”) walks much, much a harder road than I do:

Today the Supreme Court did a good thing, no more death penalty for those who commit crimes when they are juveniles. To hear people discuss it,however, you would think that the Supreme Court took away everyone's Christmas present. For a bunch of Christians, these Americans are strangely pro-death penalty. I am positive that Christ himself would support the execution of juveniles while they are still juveniles. Amen.

I wanted to discuss the opinion with my students. I wanted them to see what an actual opinion looks like. We went up on line in the classroom and saw it. As we talked about what it meant my students opened up about their legal issues and problems.

I was stunned.

One young woman asked about what to do when her boyfriend beat her. Should she call the police from their appartment, should she leave the scene, should she sleep on it and call the next day.

I feel odd discussing the elegance of a Supreme Court decision with its beautiful citations and form when these students experience such violence.

One young man, so full of energy and intelligence asked if his girl friend had a restraining order against him and she walked into their favorite club and he was there, should he leave or should she? I told him bluntly to be a man, don't argue over some childish right to be drinking in their favorite club, and leave. Just walk away. Why don't she have to do that, he begged. Why don't we skip over that part and you be the adult and leave, I replied.

How can we teach the civilization of this Supreme Court decision to people who live with such violence as part of their lives?

I don't think it was a wasted class. I think our textbooks and our curriculum should address the violence that is our students' lives. They asked me who to call if the neighbors are abusing their children. I replied that a call to the police would certainly work and that Child Protective Services would investigate. I told them if they did not call the police they were making the abuse possible because they are aware of it and are doing nothing.

And I'm going to conferences.

Posted in Law: Everything Else | 2 Comments