Showing posts with label dystopia. Show all posts
Showing posts with label dystopia. Show all posts

Saturday, September 23, 2017

Can ‘Star Trek’ put the U back in –topia?



This weekend will see the premiere of the newest entrant in the Star Trek franchise, CBS’s Star Trek: Discovery (trailer).  Notwithstanding CBS’s dubious bid to build a new model for content delivery in CBS All Access—creative initiatives crushed by commercial imperatives is a tradition in Star Trek history—Discovery marks a worthwhile moment to take stock of where we are now as a global village, 51 years after the premiere of Gene Roddenberry’s groundbreaking Star Trek, now “The Original Series.

Roddenberry’s vision was a utopian one.  It seems almost clich√© now to recount the novel “enterprise” of a multi-national crew spreading humanist idealism throughout the galaxy.  Despite its military trappings, Star Fleet was tasked with exploration of the final frontier on behalf of a United Federation of Planets (UFP).  Star Trek represented all the good parts of cultural imperialism and mitigated all the bad with deep, moral self-reflection.

Martin-Green
(CC 2.0 Gage Skidmore 2016 via flickr)

It looks like Discovery will resonate in the Roddenberry tradition.  The series, which might vary perspective and setting across seasonal sub-arcs, opens with a strong black female lead in Sonequa Martin-Green (The Walking Dead’s Sasha) and a female captain of color in Michelle Yeoh (Crouching Tiger’s Yu).  Discovery takes place after humankind’s first forays into deep space, which were depicted a decade ago by Star Trek: Enterprise, but still before the adventures of James T. Kirk and crew in the 1960s Original Series and the current movie-reboot series.  The nascent UFP is in a cold war with the Klingon Empire.  This fictional era and the name of the starring ship, U.S.S. Discovery, suggest fealty to Roddenberry’s vision of a “wagon train to the stars.” 

But can that vision get traction in today’s world?

However much our multi-platform electronic environment has served up an embarrassing surfeit of science fiction, we remain awash in dystopian imaginings.  Disclaimer one, yes, I realize that dystopian fiction is not new; even 1984 dates to 1949.  Disclaimer two, let me be no hypocrite; I have devoured it all, from The Hunger Games to The Handmaid’s Tale, having just finished the latter’s s1 yesterday.  (Nick is going to save her, right? right?!)  Yet many a commentator has observed the peculiar resonance of dystopian fiction today, in a world in which hunger and poverty persist, the wealth gap widens, and our standard of living and expectation of leisure seem after all not to have skyrocketed in consonance with technological ingenuity.

There was a time after the Berlin Wall fell, in the 1990s amid perestroika and glasnost, that it seemed like we might be on an upward trajectory.  The turn of the century brought with it a cautious optimism.  Maybe the era of world war and nuclear nightmare could be put to bed, and humankind would rise from those ashes and turn at last to the business of life on, and beyond, earth.

Then 9-11 happened.  The world went back to war, and we’re still in it.  Our American streets fill with protests fueled by racial division.  An unprecedented humanitarian crisis tears at the seams of European socio-economic union.  The septuagenarian United Nations—real-world analog of the thinly veiled UFP—seems impotent to stop a threatened nuclear detonation in the atmosphere.  And oh yeah, the ice caps: they’re melting.

Inevitable dystopia seems the apt model to envision our future on earth.  Wherefore art thou, Discovery, into our world of social and political fracture?  Can we even recognize ourselves in utopian science fiction?

It bears remembering that the world to which Roddenberry first introduced Star Trek was itself no utopia.  The Original Series tendered commentary that might seem trite now—e.g., TV’s first interracial kiss between Kirk (Shatner) and bridge officer Uhuru (Nichelle Nichols), the “black on the ‘right’ side” racism of Let That Be Your Last Battlefield, the futile primitive conflict of A Private Little War.  But that commentary was sophisticated and controversial in its time.  Star Trek’s very proffer of earthbound east and west in common pursuit of human survival and space exploration was a calculated critique of Jim Crow, the space race, Vietnam, and the Cold War.  Star Trek’s utopian vision was launched amid the civil rights fire that forged our second national reconstruction.

So maybe now is exactly the time for Star Trek.  Maybe we need utopia now more than ever, precisely because it is so unfamiliar.

As Star Trek turned 50 in 2016, Sir Thomas More’s enigmatic Utopia turned 500.  More’s Utopia was a social critique, not a social blueprint.  Critique always has been the raison d’√™tre of science fiction.  There is no utility in only imagining the future.  The endgame is to hold up that parallel world next to your own, to see how the two compare.

For Star Trek, the final frontier is not space.  The final frontier—the discovery—always has been us.

Tuesday, September 20, 2016

The Death of Civil Justice: It Was a Good Run, 900 years



Opening panel at Anglia Ruskin University Sports Law 2016: Leonardo Valladares Pacheco de Oliveira, Ian Blackshaw, Tom Serby, Andrew Smith, and Antoine Duval
Last week I was privileged to attend a tremendous one-day Sports Law program at Anglia Ruskin University in Cambridge, UK, focusing on the question, “the future of ‘the legal autonomy’ of sport.”  Experts in the academy and in practice gave timely and informative commentary on contemporary sport governance from perspectives of contract law, politics, and dispute resolution. 

Though justifiably through the lens of sport, the program raised a broader and important question concerning the future of civil justice.  Dispute resolution in international sport today is the province of the Court of Arbitration for Sport (CAS), in Lausanne, Switzerland, under the very loose supervision of the Swiss Federal Tribunal.  CAS has a complicated relationship with international sport governance organizations such as the IOC and FIFA.  Certainly the court is not their stooge.  At the same time, through the magic of contract law, the mandatory use of the arbitration system carries down through the echelons of world sport from the IOC to the national sporting federation, and all the way to the athlete.

Transnational sport governing bodies, such as the IOC and FIFA, want their disputes handled in this single channel, because it renders them largely immune to oversight by the democratic instrumentalities of the world’s governments, especially the courts.  The transnationals have legitimate and less legitimate motivations.  They fairly worry about potential liability in multitudinous courts, each national judiciary applying its unique domestic law anchored in local priorities and prejudices.  Bypassing national legal systems, the transnationals can conserve resources for objectives in the public interest, such as sport for development and peace, and the promotion of human health and competitive achievement.  The logic supporting consolidation of international dispute resolution under one supra-national banner is the same by which the U.S. Constitution places interstate commercial disputes in U.S. federal courts, supervening the potential vagaries and favoritisms of the states.

But international arbitration has its dark side—in fact, nearly literally, as CAS operates in the opacity that typically surrounds arbitration.  Observers, including journalists and NGO watchdogs, grow frustrated and skeptical, as secrecy breeds unfairness and unaccountability.  This problem is the same that has generated angst within the United States over the “secret justice” system that has so thoroughly superseded the civil trial—see the excellent work of the Reporters Committee for Freedom of the Press in its Secret Justice series, linked from here. 

Further threatening the integrity of these proceedings, the contracts that bind parties to arbitration, and are then construed in arbitration, generally are adhesion contracts: drawn up by the transnationals themselves, weighted to their favor, and presented as fait accompli to young athletes with Olympic gold medals dancing in their dreams.  Barrister Andrew Smith, Matrix Chambers, conceded that these contracts are not meaningfully negotiated.  Their acceptance at the international level apparently marks the same phenomenon that has been documented with alarm, but as yet no serious reform, at the consumer level within the United States in works such as Nancy Kim’s Wrap Contracts and Margaret Jane Radin’s Boilerplate.

Upon my inquiry, Smith pointed out that for many reasons, athletes, given the choice, would themselves prefer arbitration to redress in the courts.  A plaintiff often desires secrecy as much as a defendant.  An expert arbiter might be more likely than a civil court to reach a conclusion that recognizes the nuances of divided merits, rather than erring in favor of dismissal as against the plaintiff’s burden of proof.  Though affordable representation for claimants has been a problem for the CAS system, organized arbitration systems still do a better job looking out for claimant’s access to representation than the usual civil court.  And most important to potential litigants are the time and costs of civil justice, often prohibitive deterrents that make faster and cheaper arbitration more appealing.

Nevertheless, panelists agreed that for the arbitration system to work fairness, stakeholders including athletes must take part in developing the process.  Conference organizer Tom Serby of Anglia Law School emphasized the need for democratization of sport governing bodies.  Smith said that organization of athletes into representative bodies is essential, noting with approval that “the United States is farther along with collective bargaining.”

With disparate levels of enthusiasm for the merits of judicial abstention, three speakers—Serby; Antoine Duval of the Asser Institute,Den Haag; and Simon Boyes of the Centre for Sports Law atNottingham Law School—all opined that national courts have been generously deferential to private dispute resolution in international jurisdiction.  Quotes from the iconic British jurist Lord Denning were offered both for and against the position.  Denning on the one hand bemoaned the courts’ relative lack of expertise in matters of private regulation, respecting the brightly formalist lines of conserved judicial power.  On the other hand, he declared, as quoted in Baker v. Jones, [1954] 1 W.L.R. 1005, “‘If parties should seek, by agreement, to take the law out of the hands of the courts and put it into the hands of a private tribunal, without any recourse at all to the courts in case of error of law, then the agreement is to that extent contrary to public policy and void.’”  Duval and Boyes mapped the ground between, where court intervention seems justified.  Boyes boiled down viable grounds to the protection of natural justice, human rights, and free competition and trade.

Incidentally the same autonomy question was taken up in similar dichotomy by Judge Richard Matsch and then the Tenth Circuit in Hackbart v. Cincinnati Bengals, Inc., 435 F. Supp. 352 (D. Colo. 1977), rev’d & remanded, 601 F.2d 516 (10th Cir. 1979).  Asked to intervene after an on-field altercation, Judge Matsch opined, on the “larger question” of “the business of professional football” and “the business of the courts,” that “the courts are not well suited” to allocate fault or probe causation.  For fear of excessive litigation and inconsistent rulings, any “government involvement” in the “self-regulated industry” of professional football was, in Matsch’s view, “best considered by the legislative branch”—Denning-like formalism.  Instead applying the law of recklessness to the dispute at hand, the Tenth Circuit disagreed.  Persuasive was the oft quoted reasoning of the Illinois Appellate Court in Nabozny v. Barnhill, 334 N.E.2d 258, 260—if a decision about teen athletes playing that other kind of football—that “some of the restraints of civilization must accompany every athlete onto the playing field.”

Well intentioned aspirations for meaningful athlete-as-stakeholder involvement and debate about the selective intervention of courts all gloss over the broader and more troubling trend of public, civil justice eclipsed by the private sphere.  I confess that what troubled me most about the sports lawyers’ commentaries on arbitration and autonomy was a problem beyond the scope of their charge: the disappearance of civil justice in our society at large.

Plenty has been written at the national level about vanishing civil justice and the rise of private dispute resolution.  But as the realities of globalization decree that every dispute becomes an international one—whether a youthful athlete against an international federation, or a homeowner against a floorboard makerit it seems that public civil justice is dying.  Blind deference to adhesion contracts is hastening the trend, and the courts seem plenty eager to stand by and cede power.  They purport to further the laudable aims of deference to experts or freedom of contract.  But courts have always been in the business of second-guessing professed experts, and the contemporary commercial contract is hardly a product of free choices.

Dystopian science fiction in popular culture has in recent years flourished upon an obsession with burgeoning social angst over the corporatization of public life.  In 2013 and 2014, the Canadian TV series Continuum traced the personal struggle of an anti-terrorism agent who came to doubt the virtue of the corporate-dominated future she was sent back in time to protect.  Themes of abusive corporate supremacy and submissive, corrupted government dominate the visions of current hits, such as Killjoys and The Expanse, the latter based on the novels of James S.A. Corey.  The next year will see the premieres of Incorporated, a dark Matt Damon-Ben Affleck project, and the plainly titled Dystopia, which imagines 2037: “Governments are now powerless puppets for the biggest corporations.”

Western democracy has 900 years of experience developing a public system of civil justice to patrol the boundaries of right and wrong among us.  We ought not jettison that system so readily, nor so casually.  We ought not capitulate to the conveniences of globalization, nor certainly to the burdens of transaction costs.  Would that we spend more time and energy trying to fix the public system that we have rather than ushering it into the past and replacing it with the corporatized private justice of our nightmares.