My major at Brown was political theory. I then went to graduate school at Columbia to receive my Master’s in political theory and then to law school. After Brown, I was in Germany on a Fulbright. Nominally, I was there to continue the study of political theory. I basically spent most of my time there playing miniature golf and writing fiction. I sort of ended up in law. I was a walk-in registrant to the LSATs; I saw my score, decided “what the hell,” sent in a few applications and ended up at Yale Law School. I had no interest in practicing law, I knew I wanted to go into legal academics. I wanted to have the sort of lifestyle that would permit me to write.
I was very interested in the connections between law and the humanities. I assumed I would get a job teaching at a law school doing something interdisciplinary when I just happened to see that Amherst was serendipitously advertising for a position that sounded a lot like the kind of position that I was looking for.
I’m interested in both academic and non-academic writing. Aside from academic writing I’ve written novels, a lot of short stories, personal essays with Alex George and humor pieces for different venues.
Last year I went on sabbatical in London to write a novel. I was writing it there. It’s nothing about legal thrillers, no connection to the law or anything like that. It’s about relationships, deterioration of a marriage. It has nothing to do with the Holocaust, either.
I enjoy writing both fiction and non-fiction. I enjoyed writing “The Memory of Judgement,” and I tried to write it in such a way that it would be accessible to the lay reader as well. I’m not particularly a fan of academic jargon-I believe academics have a responsibility to write as clearly and academically as possible. If I can sort of plot out the trajectory of the rest of my career, I would say I would try to have a balance of both.
Sometimes it does feel different. At the most basic level, when you’re writing a novel you reach a certain point and you go, ‘Hey, I can just make this up.’ With non-fiction there are certainly times when I’ve felt a little constrained by historical record and just the process of searching for the apt quotation. At times that was a bit tedious.
On the other hand, I guess another difference is with the academic book there’s certainly much more of a process of creating a logical architecture, an argument. It feels that you’re much more in control of the layout than you are when you’re writing fiction. While writing fiction, I was very pleased when things happened that I didn’t expect that moved into vistas that pushed the book into other directions.
I suppose I was interested going back all the way to my childhood. I was very interested in reading novels and books about the Holocaust, not so much histories, but books and novels. When I was in Germany, I became much more interested in issues such as how nations and individuals come to terms with traumatic history and traumatic events. I also just found something intrinsically fascinating about the material itself. Most people sort of roll their eyes when I tell them that I like plowing through the 42 volumes of the Nuremberg transcripts. I found this fascination with the material; it just drew me in.
The book wasn’t so much about the legal profile-about the trials, jurisdictional questions, or questions about legal doctrine; it was more about how wise it is to use trials as ways of coming to terms with a traumatic past. These are trials that were meant not simply to do justice in a conventional legal sense, but to teach history lessons and to define terms of collective memory. That was really what my book is about-how successful these trials are at doing that. There are a number of scholars who say that using trials to teach history lessons is a bad thing to do; they believe that there is something mutually contradictory between law and history. I was trying to suggest that that’s not really necessarily the case. That trials do have the capacity to be used in these creative ways, even though, as I try to show in the book, the attempts to use trials in these certain ways backfire.
The book is about five different trials. The Eichmann trial fascinated me the most. I was fascinated less by the character of Eichmann than by the people-the survivor witnesses who testified at the trial. Each individual had such an incredible tale to tell before the courtroom that it was incredibly fascinating.
I suppose you know one thing that you’re asking is what is the role of law given mass atrocity. If you go back and look at crimes against humanity at Nuremberg, in many ways it was a quite flawed and quite restrictive idea even though again, it was a very important innovation in international law. I think the idea of “crimes against humanity” is a very important legal tool now for dealing with mass atrocities and traumatic history.
You have someone like Bush who’s talking, who’s mixing his metaphors, ‘we want to smoke them out of their holes,’ ‘get them on the run’ and ‘bring them to justice.’ The interesting question is, does ‘bring them to justice’ mean a military solution as in ‘kill the guys,’ or does he mean place them before a court? If he means place them before a court, does he mean American court or international tribunal? Even though I kind of applaud the idea of placing individuals who commit mass atrocities before an international tribunal, I do think that people have to be wary about using the law as a tool for dealing with these kinds of problems.
We saw just the other day that the state department was going to release evidence against bin Laden; several hours later the state department issues a statement saying they didn’t want to compromise their sources and so they won’t release the material. If you pursue the path of justice, the path of legal justice, you are then required to prove guilt beyond reasonable doubt following legal procedures. When you’re dealing with someone like Osama bin Laden, that might be a very difficult thing to do. It might be difficult not because of the absence of proof, but because the nature of the proof makes it very difficult to submit into a court. There is some kind of difference between historical proof and legal proof. I think one needs to be aware of the line of courts for dealing with such criminals. On the other hand, I certainly would in many ways rather see a legal solution rather than a military one.
I’ve never found myself deeply inspired by political figures. Even though I must say I continue to be a tremendous fan of Bill Clinton, and I know most of my friends find that an incredible moral blind spot on my part. But I think he’s an absolutely extraordinary character, and I would have to say that right now if there was one person in America that I could sit down and have lunch with, it would probably be Clinton.
Well, in terms of the work on the Holocaust, I guess the writer who has most moved me is Primo Levi. The thing that I find incredible about Primo Levi is just the absence of hatred in his writing. There’s a kind of beauty and clarity to his writing at the same time that he’s not some Milquetoast who simply believes in universal love. He’s also someone whose vision hasn’t been distorted by hatred and pain. I find that honesty and clarity very moving. In the literary area, I suppose I am most affected by Flaubert, who I just think is about as good as it gets.