Friday, July 18, 2008

III-IV: Collars

It is entirely coincidental that the posting of the third installment of the series coincided with the conviction, without jail time, of Lee Kun-Hee, former Chairman of Samsung Group. Not that his sentence is big news; such occurrences have become commonplace.

Having cast off the shackles of their colonial oppressors and defined the framework of a free state, our country's landed white forefathers set their sights on the next great set of legal challenges facing an ever-westward expanding America. Willard Hurst's "Law and the Conditions of Freedom" presents the development of legal institutions in 19th century America that a cynic may see concerned as much with promoting a climate conducive to the development of enterprise as the rule of law. In fact, if the latter was a goal, it was perhaps worthwhile only in service of the former. And so the law of torts, of contracts, and of property were developed to help the entrepreneurial souls of these United States fulfill the potential of the land they saw before them. Pristine and uninhabited... though only described by the former prior to being placed in the thrall of industrialization, and only noted as the latter for ignorance or disregard of multitudes of Native Americans. But, yeah, go west, young man!

Episode three of The OC throws the contemporary viewer into a swirl of reference, and a sensation of pop cultural vertigo. Ryan's nemesis is none other than Francis Capra (Eli "Weevil" Navarro) from Veronica Mars, who lays the crime/prison drama hurt on young Mr. Atwood in the form of a fork to the neck. If the wound looks a bit like a vampire bite, you can blame the writer: Buffy expatriate Jane Espensen (Band Candy). The "crime": Ryan is unable to be released to a guardian after being held for questioning in the fire that consumed the Newport Group's latest model home.

Episode four of the series closes with what everyone enjoys the show for most: rash, poorly thought out decisions which cut a clear and tantalizing path to high melodrama. In this case, we have the confluence of Jimmy Cooper's embezzlement of his client's money to pay for his family's lavish lifestyle combined with his total unwillingness to confront his problems directly... until the social event of the year when one of his clients would like a check for his at-this-point embezzled money. Never mind that he could have not shown up, or simply written a bad check considering he was already hemorrhaging cash and looking at 20 years in the joint, but no, he was going to own up to it.

There's been plenty of ink spilled on the place of law in society, whether it has played such a consciously mustache-twirling capitalist role as Hurst portrays and critics of capitalism would accuse, and whether such roles can be normatively categorized for good or for ill. Not only have I yet to even begin my legal education, but these questions go far deeper than a few hundred words in a blog post on a tv show. Still, it's admirable that a primetime high school soap points out what should be obvious and inescapable: that it's all too rare that white collar criminals have to roll the hard eight, and it's far too often that the disadvantaged find themselves on the losing side of the craps game that our legal system can sometimes be.

In abstract terms, we believe justice should be meted out equally - a thief should be treated as a thief. In specific terms, we are willing to carve out exceptions in the name of circumstance and familiarity. But in between, our conception of justice has become so warped that the prospect of a white collar criminal serving jail time is almost impossible to comprehend. Since 2003, we've made steps: but they're more punchlines than warnings. Martha Stewart, Scooter Libby, Enron Executives? But by and large, it is far easier to sell America on jailing a man for life for stealing a few video tapes than it is to sell them on defrauding the country and taking its citizenry for millions. After all, if 3 strikes work for baseball, it must work for the criminal justice system.

Perhaps this means that Hurst was wrong - if our legal system has engendered bad business practices, can it really be said that is the course on which it sought to set us? Perhaps the country lost its way, and the protection of markets and enterprise was gradually replaced by the zealous guarding of entrenched monopolies and corrupt actors? Maybe those old, propertied white men had a point when they were focusing on preventing bad people from doing bad things to take advantage of good people, just expanding that notion to business as well as government.

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