TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Sunday, October 1, 2017

At The Movies With A Law School Dean: Dunkirk And Detroit

DDNick Allard (Dean, Brooklyn), Three Crucibles and a Funeral:

Respected chroniclers of some of the most dire breakdowns in our government are optimistic. Commentators across diverse fields, including those I recently interviewed at the Brooklyn Book Festival — Sheryll Cashin, professor of law at Georgetown Law School and author of Loving: Interracial Intimacy in America and the Threat to White Supremacy; and Norman Ornstein, resident scholar at the American Enterprise Institute and author of One Nation After Trump: A Guide for the Perplexed, the Disillusioned, the Desperate, and the Not-Yet Deported, are convinced that our current troubles are the jolt we need to spur citizens to engage with and make our government more responsive and just. During our interview, both commentators see an increase in citizen action on a number of fronts that has the potential to bring about transformational change.

Professor Cashin, for example, believes that, notwithstanding centuries of abhorrent laws favoring and supporting the supremacy of white people in America, including those laws interfering with interracial intimacy, and the physical mistreatment and exploitation of African Americans, we are advancing toward an era of “cultural dexterity,” in which interactions of all kinds – social, cultural, economic, intimate – are commonplace and accepted as the norm rather than the exception. During the C-span covered interviews, we also discussed how popular culture including,  as noted by my friend of thirty plus years Norm Ornstein, movies like Dunkirk demonstrate that history tips in favor of the better angels of our human nature.

Anyone studying the United States Constitution can find many dramatic examples of how much a democracy depends on "We the People.  It is not hard to find lessons outside of their classrooms about the power of motivated citizens to self-organize and take on major problems.  They might compare and contrast, for example, two movies about very different events: As Ornstein suggests, Dunkirk, along with Detroit, and a third movie not yet filmed about Hurricane Harvey.  Surely there will be a film about the widely televised heroic rescue and still unfolding recovery efforts of neighbors helping Houston neighbors in the wake of the devastating late summer storm.  When you think of it, what we are seeing about selfless, helpful and often heroic efforts by people in the aftermath of Harvey, Irma, Jose, the utter devastation of Maria in Puerto Rico, and earthquakes in Mexico, is a lot like Dunkirk

The summer’s disturbing events in Charlottesville, Virginia also are still very much on our minds, in part because of the President’s decision to rudely criticize professional athletes over the manner in which they choose to express their concerns about national issues.  Students of our laws would be well served by reviewing the moving elegies delivered in clear quotidian words celebrating Heather Heyer's life at her funeral service after she was killed during the Charlottesville protests.  There, her family and friends offered eloquent, poignant and compelling explanations of President Lincoln's famous peroration long ago when he said "of, by, and for the people".   With unimaginable strength, grace and power, as did Lincoln commemorating fallen soldiers at another time when a divided nation needed to come together, Ms. Heyer's community breathed life back into her stolen voice. They reminded us all of the core values which are the Constitutional foundation of Americans’ consent to be governed.

Director Christopher Nolan's much anticipated and generally acclaimed Dunkirk is a brilliant, original, artistic and yet flawed film. Nolan brings to the big screen the epic story of how ordinary British people bravely formed an emergency armada of small private boats of all description to help rescue in just a few days more than 350,000 troops trapped on the beach at the French port of Dunkirk.  Without their inspiring, unselfish and courageous help the trapped British soldiers faced slaughter or certain capture by the attacking German army.  In the early days of World War II, this loss would have been a devastating blow that likely would have forced the British to capitulate to Hitler and the Third Reich.  The British military and Churchill's government were themselves incapable of pulling off this historic, unprecedented evacuation from Dunkirk.  His Royal Majesty’s government was rescued by their own noncombatant citizens as surely as was every fortunate soldier who retreated home to England. 

Perhaps it should not be surprising that director Nolan, whose credits include two of the most unfathomable movies of all time, the seductively captivating "Momento" and the incomprehensible "Inception", would abandon traditional linear storytelling to examine only a few select threads of a much larger classic wartime tapestry. Nolan's narrow and cracked kaleidoscopic images of incidents repeated over and over again from different angles are exceedingly difficult to grasp and ultimately wearisome even for older audiences who know the tale. The screenplay no doubt will leave many younger viewers clueless. That includes millennials who, I am finding, have never heard of Perry Mason or Atticus Finch much less the Battle of Britain, Rosie the Riveter or the miracle of Dunkirk.

Nolan assembled and then almost squandered an extraordinary cast. The great Sir Kenneth Branaugh is used almost like a piece of wooden scenery, dressed handsomely in his admiral's hat and coat and relegated to stoic grimacing stares out to sea, occasionally sharing a droll quip with a lowly enlisted man, and finally allowing a tear when the unexpected citizens’ flotilla begins to arrive en masse.

Tom Hardy sort of appears in Dunkirk.  It’s a shame to quite literally see so little of him, given the caliber of the actor who delivered two of movie history's great performances in a single film, playing both of the very different Kray twin brother hoodlums in the English crime thriller Legend.  More recently Hardy also owned the role of the unforgettably roguish adventurer James Delaney in the small screen's wrenching Taboo series set in a raunchy, dangerous pre-Victorian London.  Unfortunately his talent is wasted through the director's and actor's mutual conceit. Even more so than in their previous Batman collaboration The Dark Knight Rises, Hardy is unrecognizable wearing a mask until the final seconds of the film.  In Dunkirk only Hardy’s eyes are visible through his aviator's oxygen supplying, radio equipped headgear. 

Fortunately, the always superb veteran classical stage actor Mark Rylance, who earned an Academy Award in Bridge of Spies, is Nolan's featured noble everyman who rises to the moment to rescue his countrymen while teaching his first mate son, and us all, about courage, judgment and kindness. During this year’s awards season, Hardy's eyeballs and brows might steal the statue, though it would be more fitting for his Spitfire fighter plane to win a special Oscar, as did Lee Marvin's drunken horse in Cat Ballou. If not, Rylance may be taking home another Academy Award.

Beyond underutilizing well known leading actors, Nolan's cinematic canvas is a masterful blur of frightened, resourceful, determined, generically interchangeable young people imperfectly protected by self-sacrificing pilots above, and a last stand by outnumbered, largely unseen and uncelebrated French soldiers on the ground below who are pounded relentlessly by fearfully invisible German attackers. His impressionistic brushwork creatively conveys the universality of the sacrifices and heightens the horror of the enemy. Nolan's mastery in this regard brings to mind the range of emotions that arise from a visit to what were, during World War II, the fearfully defended beaches, cliffs, hedgerows and villages of Normandy or when paying respect to the nearby thousands of graves of all those young people of every gender, race, faith, origin, and circumstance who made the ultimate sacrifice to preserve our way of life.  Now in our eighth decade since the Allies’ resounding defeat of the Axis powers, it is worth remembering what was at stake and the all too dear, not to be now wasted price paid to preserve and enhance equality, freedom and equal justice under law.

Academy Award winning, pioneering director Kathryn Bigelow's film Detroit was also released this summer marking the 50th anniversary of the civil unrest and “12th Street rebellion” that erupted in the city of Detroit in July, 1967. Like Dunkirk it centers on people physically trapped during an intense short period of time in the vortex of a much larger war. Unlike the World War II saga, there is no rescue or uplifting triumph at the end, nor a sense that the war ended. The black people of the Motor City were not volunteering to rescue those in uniform.  They were rising up, provoked by a police raid of a party for returning black veterans at an unlicensed club, in the midst of persistent outrageous abuses by the Detroit Police Department of the time.  The particular acts of police brutality which sparked the violent insurrection were ignored at the time or condoned by the Michigan State Police, the Michigan National Guard and conventional courts, among others.  The continuing civilian outrage even prompted a citizen’s tribunal to conduct its own public trial of the police, a sad epilogue not included in the film.

Bigelow's masterful work in The Hurt Locker and Zero Dark Thirty establish her as a gripping storyteller. In Detroit, her gut punch docudrama realism knocks the breath out of the audience. The film teaches painful lessons that are difficult to watch, contemplate and discuss.  Bigelow dwells exclusively on the lead up to and notorious occurrences at the Algiers Motel during the police and military efforts to take back the streets.  The unflinching sustained close-up view of cruel and vicious interrogations to force confessions by young innocent black men and two white women, and the cold blooded murder by bigoted cops of first one suspected looter in the street and later three innocent black men at the motel is maddening, upsetting, exhausting, frightening, and unsatisfying.  While Bigelow's decision to tightly confine her narrative to a single harrowing episode involving a relatively small group of people may lack context about community activism before and after, it lacks nothing for shattering provocative impact.

In contrast to Nolan, Bigelow makes exquisite use of her entire ensemble cast whose youth and talent amplifies the virtues of the victims and compounds the evil of their assailants. John Boyega as the hard working savvy moonlighting black security guard, and Algee Smith, Jason Mitchell, and Jacob Latimore playing aspiring recording artists dreaming of their big break, all are brutally crushed beyond repair. The pitch perfect performances of Hannah Murray and Kaitlin Dever as the clueless young white girl friends “slumming” at the Adelphi Motel, who seem to be the only color blind people in the city, unwittingly add fuel to an already dangerously inflamed situation. The casting choices for the very bad guys are stunningly effective in that the cherubic choir boy face of English actor Will Poulter as the racist ringleader Officer Phil Kraus,   and the wholesome good looks of his fellow cops, belies the terrifying ferocious ignorance and hatred seething within them. They are vicious white supremacists hiding in plain sight.  Poulter has certainly arrived as a major star and he too certainly will be considered for major acting honors for this role, and we can expect for many roles in the future.

Like the bell to a weary prize fighter on a stool in his corner, Detroit is a jarring signal to get up and continue the rough unending fight for racial justice and equality. If progress has been made for racial justice in America since the 1960’s, and it has, but not hardly enough as we consider the circumstances of the contemporary Black Lives Matter movement, then the world depicted in Detroit must be one to which we never relapse or return.   It is a world of racially motivated lawlessness by law enforcement, of corruption and injustice which protects the unjust, harms and punishes the innocent, and leaves wrongs unremedied.  It is a world of knowing complacency about disgusting wrongful behavior, tolerance of the intolerable and a hell on earth where government is unaccountable to the people it is meant to serve.  It is a world of self-destructive violence and crime by blacks bred out of poverty, resentment, fear, hopelessness, and anger.  In other words, it was a world where urban blacks in Detroit chose to deny the legitimacy of their government and felt that taking matters into their own hands was preferable to abiding by a rigged system governed by power, privilege, influence, racial preference and arbitrary circumstance.  By rising up and taking to the streets they withdrew their consent to be governed by such stacked rules. They also harmed their neighborhoods, their neighbors and themselves.  The morale of this sad tale is that equal justice under law is mutually beneficial to all but cannot be taken for granted by anyone. 

Now, turning to natural disasters where mankind’s culpability is still debated, the ways that South Texans and their helpful neighbors from other states responded to Hurricane Harvey looks a lot like a peacetime version of Dunkirk.  It is much too early to predict how the likely movie turns out about Houston's reemergence after Hurricane Harvey.  However, it is not too early to speculate about who might be cast for some of the starring roles. 

Who, for example might play the irrepressible, unsinkable Lisa Eicher, the former American Ninja Warrior contestant whose flood displaced family of eight includes husband Joey, four children including two adopted from Bulgaria with Downs Syndrome, a three-legged dog and eighty pound pet pig?  Reese Witherspoon? Kate Hudson? Jennifer Lawrence?  Maybe Wonder Woman's Gal Gadot in a blond wig?  Then there is the tragic death of the 34 year veteran of the Houston Police Sergeant, Steve Perez, who told his family he was going to report for duty despite the danger because "there was work to be done".  Why not Edward James Olmos, Hector Elizondo, or Richard Anthony “Cheech” Marin (who has terrific dramatic acting chops) to take the part of Perez or, perhaps, play the empathetically commanding Houston Police Chief Art Acevedo?  There is no shortage of good options to play all those good 'ole boys who showed up with the their 17-foot, flat bottomed fishing boats and their 25 horsepower outboard motors, inflated zodiacs and even a few jet skis to rescue folks around the clock. Matthew McConaughey, Woody Harrelson, Nicholas Cage, and Chris Cooper, but maybe not Mark Rylance, would all be good bets.  Denzel Washington and Samuel L. Jackson would of course powerfully portray Mayor Sylvester Turner, but a long shot to surprise people in a dramatic role might be television weatherman Al Roker; just as did famed song and dance man Gene Kelly playing convincingly against type as a cynical newspaper reporter in Inherit the Wind.  And, how better to honor the calm competence and heroics of all the first responding firefighters, medical emergency teams and health care givers, law enforcement and military personnel than to call on the likes of Dwayne Johnson, John Cenna, Jason Stratham, Mahershole Ali, Travante Rhodes, Jennifer Lopez, Zoe Saldana, Melissa McCarthy, Frances McDormand and many other stars to fit the bill.

Actually lawyers and aspiring lawyers in Texas and around the country are not waiting passively to watch a movie about Houston or heroics after other disasters.  As the waters recede they are already pouring their needed skills and donations from their own pockets into the stricken city.  Flood victims need all sorts of legal advice and assistance with insurance claims, real estate issues, employment, health care, immigration questions, and protection from fraudsters and scam artists.  Many lawyers are donating their services, including out-of-staters who are permitted by the Texas Supreme Court’s order to perform legal work for Harvey victims for six months -- proof positive that lawyers and even state bar licensing administrators have a heart.  In the advent of other record breaking storms, no doubt there will be even more recovery legal work to do.

Meanwhile, recall that in Charlottesville, at Heather Heyer’s funeral, her mother movingly said that her murderers tried to silence her, “but guess what, you just magnified her”.  What an amazing sentiment and one which should inspire us to emulate such voices of compassion, empathy and public service.  Heather, age 32, was a paralegal at a Charlottesville, Virginia law firm.  She had a strong interest in law, but finished formal education when she earned her high school degree.  One of my fellow law deans wrote that she was known in the firm as a “strong woman”, passionate, politically engaged, and “a champion for others”.  Another friend, an enormously accomplished alumna of our law school, who is a bi-racial daughter of a black father and an Asian mother, wrote:  “To have my children relive what I lived through growing up is heartbreaking”.  We can and we must together honor all these truly fine people and our children by relentlessly pursuing the ever elusive goal of equal justice for all and the universal enjoyment of basic human rights. 

We all are together experiencing a critical, historic moment demanding moral clarity.  Debating the parameters of lawful assembly is a different topic.  Our government officials, regardless of party,  as well as leaders in business, clergy, science and technology, the arts, professional sports, and, yes, educators and certainly students, including, perhaps especially,  law students, can and must express their views about prejudice, hatred, threats of violence, and intolerance when called upon to do so by events.  Indeed, it is wrong, fundamentally wrong, if one is able and has a voice that can be heard, to be silent at this time.

Against a backdrop of tumult and uncertainty in the United States and abroad we live in a time when, once again, we face front and center many of the essential questions our nation’s founders grappled with:  How do we elect?  How do we govern?  How do we talk to each other?  How do we decide what we mean by “We the People” and including lately whether we mean to include “Dreamers”, or not?

As to lawful assembly and free speech, we can and will at our school this year have lively debates and we will learn a lot about "fighting words" and "incitement" among many legal topics arising from the cascading swirl of upsetting acts of racial and religious intolerance.  Relevant case law on these important constitutional issues is abundant and will be thoroughly discussed.

That very important legal conversation about the constitutional free speech underpinnings of protest, dissent and holding government accountable must not excuse us or distract us from expressing clearly and rejecting the immorality of prejudice, bigotry and inequality.

That is what people have done throughout the history of civilization, holding up a mirror to society’s foibles through art, literature, music, theatre, film, and television.  It is what world-class athletes do, like Jesse Owen winning gold at the Berlin Olympics in front of Hitler, Jackie Robinson nobly breaking the baseball color line, Sandy Koufax and Hank Greenburg refusing to play baseball on Yom Kippur, and the Scottish Olympic runner Eric Liddell who refused to race on the Sabbath as depicted in Chariots of Fire.  And that is what lawyers do by upholding their dual public and private responsibilities to assure that our constitutional government “of the people, by the people, for the people, shall not perish from the earth”.

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