Realism Redux?

Legal Realism, the intellectual movement that arose in a few elite law schools at the turn of the 20th century, was often satirized as offering the view that the most important determinants of the outcome of a legal case was not the facts, or the law, but what the judge ate for breakfast (who came up with that particular metaphor anyway?). By the 1960s much of the Realist opposition to the idea that law was a purely objective result of near scientific analysis had become common sense, but few defended a radical view of legal indeterminacy (a slogan taken up by the not very successful Critical Legal Studies movement). Until today?

According to Charlie Savage's reporting in the NYTimes, a recent study by the Justice Department's inspector general found that judges appointed under the now exposed program of choosing Bush loyalists in the recent administration have significantly lower rates of granting appeals by asylum seekers. A study last year titled Refugee Roulette, which examined a huge sample of immigration appeals concluded that "he facts of a case may be less important in determining whether someone is deported than which judge hears the case."

Risking Rescue on K2

It looks like another epic mountaineering tragedy is coming to a close, this time on the fearsome peak of K2 (read the coverage by SALMAN MASOOD and TOM RACHMAN in today's NYTimes). While somewhat shorter than Mt. Everest, the Pakastani peak is considered by professional climbers to require far greater technical skill and to be far more dangerous.

This tragedy, comparable in scale to the 1996 storm on Everest made famous by John Krakauer's book, Into Thin Air was the product of capricious nature and predictable human nature. The human part was the drive of the many teams perched high on the mountain to take advantage of a break in the weather to summit the mountain. The large numbers of climbers produced a jam on the narrow and super steep pathway to the summit (actually known as the "bottleneck"), delaying the ascents so that many climbers were descending in near dark conditions (never a good idea at 26,000 feet).

Nature stepped in with the collapse of part of the ominous serac (an overhanging ice ledge) that hangs over the bottleneck. The ice swept several climbers directly to their deaths, and cut the "fixed lines", ropes put in place by climbing porters during the ascent which are vital to allow exhausted climbers to descend after reach the summit. Trapped on the top of the mountain, with no chance of descending, an unknown number of climbers huddled in weather of minus 40 degrees (F). Some clearly died during the night, a few survivors were helped down the next day by rescue climbers, but others, too injured had to wait for helicopter rescues that are very difficult to pull off. Nature again intervened as a snow storm wrapped the peak creating white-out conditions.

While the idea of risking your life to achieve a summit may seem to be the height of individualistic narcissism, I have long been inspired by the counter-balancing imperative to risk your life in the rescue of others that also characterizes high altitude mountaineering. (See my essay the moral hazards and opportunities of mountaineering, Jonathan Simon, Risking Rescue: High Altitude Rescue as Moral Risk and Moral Opportunity, in RISK AND MORALITY 375 (Richard Ericson & Aaron Doyle eds. University of Toronto Press, 2003)

"Civil" Wars

In a fascinating feature in today's NYTimes, Ethan Bronner succeeds in capturing the incredibly complex interplay of law and war, courts and gun battles, in the three-way civil war we usually abbreviate as the Israel-Palestine conflict.

On the Palestinian side, the intermittent armed violence between Hamas and Fatah factions takes place on top of complex clan alliances.

Any fight here has its origins in earlier violence, so where to begin is problematic. Nonetheless, these particular events began at dawn on Saturday when Hamas forces, which have ruled Gaza for the past year, surrounded the home of the sprawling, well-armed and once powerful Hilles clan, whose chief had been associated with Fatah.

In part, Hamas was looking for the perpetrators of a bombing a week earlier that killed five of its men and a girl, but more broadly it was taking the next step in the consolidation of its power and rule over 1.5 million Palestinians in the coastal Gaza Strip.

On the Israeli side, desire to aid Fatah against Hamas overlays complex legal battles between advocates of greater protection for human rights and advocates of a stronger security state.

So Israel sent about three dozen men back and said the others were on their way. As soon as the men stepped into Gaza, Hamas arrested them. Since human rights groups have recently reported on torture in Gaza, alarms were raised. The Association for Civil Rights in Israel sent an urgent appeal to the Supreme Court demanding that Israel stop returning the men to Gaza.

On Monday morning, the Israeli military announced that it would not send them all to Gaza and that it had persuaded Mr. Abbas to allow many of them into the West Bank. So the civil rights group backed off, replaced by two right-wing activists who petitioned the court to stop the transfer of dangerous men across Israel.