Some Tools I've Taken Away
May 22, 2003
Students, family, friends, deans and faculty
I am profoundly honored. It's a mighty and delightful challenge to address such a distinguished group.
Since Dean Leebron's invitation some months ago, the coming of this day has weighed on me, to the extent that I actually had a recurring anxiety dream.
The dream was that for weeks I had worked feverishly on my remarks. The day of commencement arrived, today, I put my thoughts in my jacket pocket, and stepped on to the stage. I looked out into the sea of attentive faces, and pulled out my carefully prepared paper. But alas, I had grabbed the wrong pile, and instead brought my calculations for last year's tax return.
We're o.k. I mean at least, I got the right pile.
Students, family, friends, deans and faculty
I've chosen to talk today about, The Tools I've Taken Away, from Columbia.
The reflection that gave rise to this title was the fact that, we all spent valuable years at our school. That value was not only in the things gained, but in the time invested.
As we move on in life we come to the realization that time is the supreme asset, the only one we spend with each moment, that we can never earn back. In my case, spending, and I mean spending in both senses of the word, three years is a heady investment.
Well, to speak to you today, I needed to rationalize my investment with Columbia, and perhaps, to appreciate it better. And here, I will ask your indulgence as I've been requested by our esteemed Dean to tell you a little about myself, as in "who is this guy, anyway?"
That's a fair question. From the outset of my post-graduate days, I wasn't keen on my familial destiny to become a lawyer. I really wanted to be in the film business; an actor or director, maybe. But my father thought going to law school offered a more promising, and secure future.
So we argued, and argued about my life. And after some rather intense discussions we compromised - and I went to law school.
I did o.k. at Columbia Law. I managed to win some plaudits, in spite of myself. I did make it to Law Revue, but it was spelled "revue" and not "review". Instead of "all erudition", it was "all-singing and all-dancing."
Of course, there were fascinating studies and fantastic teachers. Yet, some stuff just didn't get my creative juices flowing. Trust and Estates, Civil Procedure, and Legal Method come currently to mind. But I coped.
And then, every so often, something really grabbed my imagination. Like the copyright seminar, taught by Professors Kernochan and Grad. When I found out we were studying a case where Superman sued Captain Marvel, I saw that the law could even be fun.
I decided I would start off as an entertainment lawyer. The prestige law firm in New York at the time, for entertainment law at least, was Paul, Weiss, Rifkind, Wharton and Garrison. And they were interviewing at the school.
So I went up to the placement office to sign up. And to my horror I was told that I had missed the sign-up deadline by one day. I begged, I pleaded. This was my life on the line. And the Placement Director responded with agonizing simplicity: in the profession of law, filing on time was a sine qua non. There was no favor to be granted. Miss the deadline and you're just plain out. That was the rule of law.
And, so I was. Plain out. I went back to my apartment, had about eleven beers, and vowed to figure out a way to get back on track, and to watch that bulletin board faithfully every day, for opportunities. The very next day, I diligently stood there, and saw a notice that piqued my interest: There was a Fulbright Scholarship possibility in Sweden, in the sector of public law. And, I hadn't missed the deadline.
So I ran to the law library, developed a proposal around my favorite subject, copyright law, and submitted it.
As luck would have it, and I really mean luck would have it, the day my proposal was ultimately approved was the very same day I was drafted into the US Army for duty in Vietnam. So I sent my draft board my very official looking Fulbright acceptance letter, and two months later found myself most wonderfully ensconced in the co-ed dormitories at the University of Stockholm, instead of on the front-lines of the Ho Chi Min trail. Boy, was I glad I went to law school. Thank you Columbia.
I came home, two years later I might add, and I reviewed my prospects for the future. I was a lawyer. I was a member of the Bar. And while I really didn't want to practice law, I did realize that I had assembled an expensive, but hopefully very valuable, kit of intellectual equipment. Equipment that might help me not only in business, but in reasoning, in analysis, and, frankly, in life.
After I started my company, New Line Cinema Corporation, I began to fully appreciate what valuable tools I had taken away.
It's impossible to recount the times my legal training has served me, my company, and my colleagues. And it continues to do so. To this day, my tools are well-used and well-oiled, and they are often called into service.
One rather fun example to recount is my discovery of one of New Line's early successes, the movie, REEFER MADNESS.
We desperately needed films for our college distribution business, and some other company was cleaning up with a 1930's anti-marijuana melodrama with the unlikely title REEFER MADNESS. We were envious as hell. But one day, my tools called to me. So I went to see the film at the Bleecker Street Cinema, and the tools were right. The film carried an improper copyright notice. It was in the public domain.
So I found a collector who had a legally obtained print from the original release, made a deal, copied the print, and made what was, then, a small fortune for New Line, by releasing REEFER MADNESS on our college circuit. Hooray for my copyright seminar; profit from my tool bag.
Understanding the rule of law, from the sign-up deadline to the Federal Copyright Act, paid off. There are many, many other occasions, when the skill of analysis, and the turning of law to our corporate benefit, yielded substantial material rewards.
But, the tool bag is not all rules and weapons. To borrow a thought from Dean Leebron, sometimes when you have a hammer, all problems start to look like nails.
In thinking about my remarks, I harken back to that moment when the Placement Director told me I had missed the boat for my interview with Paul Weiss. The law was the law.
Today, we are mired in a horrible geo-political dilemma. How do we, as trained lawyers, understand the position of our country, and the rest of the world? Do we reach for the sacred touchstone, the rule of law?
Something that always puzzled me as I worked my way through law school was the duality of American jurisprudence, that of the objective and the subjective. I learned, much to my dismay, that parallel to the rule of law, there were many instances of no absolute in American law. Instead there is the principle of subjective interpretation.
Our jury system doesn't strive for objective truth. It seeks to present points of view, both humanistic and interpretative, and it then charges the judge or jury to decide the relative merits of those various testimonies. That's not the case in many of the jurisprudential systems of other countries. No all-encompassing civil code governs us.
Truth, rather, must be surmised from witnesses, and physical evidence, but only as judge and jury subjectively see it. Then, they decide. They must operate with dual imperatives: The extant law, and the subjective interpretation of the facts, and that law.
Our system caters to this duality in many ways. Take the principal of alternate pleadings. We can make an argument based on the law as it stands, and our conclusion. But we may also plead a totally different path to our sought after decision, in the event the triers of fact don't buy the logic of our first argument. Strange, isn't it?
Is it possible that it's impossible to actually know the truth? Our system seems to say that's the case. Complimentary methodologies in our bag of tools.
This reflection takes me to a speech I attended a few weeks ago, given by General Norman Schwartzkoff.
In that speech, he spoke about two of the most profound lessons he learned in the military. As he told it, he was taking over an important command some years ago, and as he was given the command, he told the departing commanding officer that he had no idea what he was supposed to do. The officer answered: "you have only two rules that are important, and the rest will come to you. Those rules are Rule 13 and Rule 14. Rule 13 is, when given command, take charge. And Rule 14 is, do the right thing.
Do the right thing. Wow. This man ran a war. That really struck me. Here we are trained in the rule of law. And his guidance is "to do the right thing". Does that mean follow one of the many "rules of law?" Does it mean follow your intuition?
What right thing applies today? Or is "the right thing" in each of our hearts and minds? And
do I agree with yours?
Barry Goldwater and Martin Luther King each believed in their absolutes. Goldwater's campaign slogan was "In your heart, you know he's right." Yet some voters didn't know. And Dr. King's imperatives were based on natural law, the natural law of the Bible and the natural law of many, but not the natural law of all.
So much is obscured. Observing a filing statue laid down by legislature with clarity is simple. But the complex world of social issues is not universally seen in the same light by everyone. Where are the touchstones, the righteous laws to guide us? What guided Schwartzkoff?
I'll select from my training here, the principal of duality. Sure it's challenging not to always have immutable rules to follow. In certain universes, civil procedure notwithstanding, we still have to make intuitive choices. Holy books and holy men exhort us to follow the indisputable, their indisputable, rules of law. There are, and have been, many. It's daunting to have free will. What, and who can we, or must we, follow. As we adhere, can these rules mutate? Aren't they subject to interpretation?
Law school, for me, in its purest form, was training in philosophy. And what I have gained from that training has guided me in much of my personal life. I often follow the procedural rules of civilization. Yet, sometimes there is room, or necessity, for independence. After all, if you're on the way to the hospital with someone desperately ill, and if there is no traffic, mightn't you go through the red lights? Subjectivity, one's interpretation and revision of the rules, kicks in here. Absolute law is laid down by law makers. Intuitive law we determine for ourselves.
Apply that mind-boggle to the civil and personal laws we strive to define. Does the Supreme Court correctly interpret, and apply the imperatives of our Constitution? And what about a subjective political shift in the Court's composition? Can this body change law we believed was immutable, in the spirit of interpretation? You bet.
So getting back to Schwartzkoff's slippery imperative, "Do the right thing." Each of our professional and personal decisions must be considered in light of the consequences of those decisions and our personal belief in the justice of those consequences. Right is retrospective and our acts are judged by what they may precipitate, and what our inaction may allow.
A plurality, or a majority, may mandate a course of action. However, as history has shown, agreement does not assure righteousness. And unforeseen forces act on us all. I'll paraphrase Robbie Burns, who wrote about a tiny mouse who thought he had it right when he made his home unknowingly in the path of a farmer's plow, "The best laid schemes o mice an men often go awry." Yet we still must try to determine and to act on what we believe is "right".
History may inform us, but what will guide us, you and I, graduates of the law? Our ability to analyze, our sense of equity, our personal value system, relative in some moments, absolute in others? What is the "right thing"? Very tricky, indeed.
I suggest to you that we are fortunate, after years of inculcation, to have both respect for the rule of law, and acceptance of an existential uncertainty. We lawyers tread a very fine line between cynicism and righteousness. We must constantly, and carefully, balance our professional and personal codes, to beware of, and respectful for, both. Where I come out, is that the rule of law is like that traffic light. No matter how absolute its imperative, it must be tempered by our personal conclusions, of instinct, and of humanity. Those are the laws that instruct us to see into our hearts, and minds, to listen and analyze and discern, just as a judge or jury might.
. I wish each of you well. And I wish you, too, great strength of character, to respect the rule of law, and to do the right thing.