It was right after our selfie with Minion Captain America that we saw it. We were marching up and down the aisles, dodging empire storm troopers. Bright lights and backbone-rattling sounds shot out of the Nickelodeon and Star Trek pavilions. A tractor beam pulled us toward a booth hawking books on manga, the Golden and Silver Ages of DC Comics, the Benedict Cumberbatch Sherlock series on BBC … and a modest-looking blue book authored by our Constitutional Law professor. We waited for a phalanx of zombies to pass by so that we could move in for a closer look. What was a law text doing at Comic Con? (Maybe we are in no position to ask that question. After all, we spurned the long lines for the Hall H and Ballroom 20 Warner Bros. and Simpsons panels for a discussion by the Comic Book Legal Defense Fund on “Sex, Violence, and the Law.” Verily, we were a nerd among nerds.)
It is a bit hard to believe that someone is compiling statistics on law professor citations. Was it Kissinger who said that academic disputes are so vicious precisely because they are so trivial? In any event, Cass Sunstein leads the legal citation league standings by light years. When we took his class, he was a relatively humane practitioner of the Socratic method. He was considered one of the few liberals on the Chicago faculty, though that is a gross oversimplification both of his views and of those supposedly sitting on the other side of the spectrum. (Is Posner really a conservative?) Sunstein later went to his alma mater, Harvard Law School (aka the Death Star). He also worked for a while in the Obama administration. His mission was to make regulations more rational. Sunstein was well-suited for this mission, because he had been noodling over ways in which behavioral economics could inform the law. He was co-author of a somewhat controversial book, Nudge. That work explores how laws and regulations can steer people in better directions while preserving freedom of choice. It is a kind of Jedi mind trick. And now Sunstein has given us a charming little (under 200 pages) book, The World According to Star Wars.
The book is clearly a labor of love. Sunstein has always been a busy guy, but fatherhood afforded him an opportunity to catch up on the Star Wars saga. He dedicated the book to his son. Much of the book supplies interesting back-stories to Star Wars, and how so much of it was accidental. For example, if George Lucas’s father had his way, his son would never have gone into anything as frivolous as the film business. We never would have heard of Lucas, or certainly of Luke Skywalker.
Sunstein divided the book up into ten episodes (E.g., Episode I: I am Your Father- The Heroic Journey of George Lucas; Episode II: The Movie No One Liked: An Expected Flop Becomes the Defining Work of Our Time”). Oddly, Sunstein’s explanation of how the film series came to be omits our little contribution to the origin story. There is as much enthusiasm as analysis in the book. Some of it is shockingly wrong-headed. He submits an “Objective, Authoritative Ranking of Star Wars Movies,” and somehow places both Return of the Jedi and Revenge of the Sith ahead of The Force Awakens. That sort of thing can make one doubt the rigor of the 30-plus years of Sunstein’s scholarship.
But there is much of substance and value in Sunstein’s Star Wars book. He explains how network effects and cascades work. He discusses how democracy can descend into dictatorship, and how populations can polarize. Anyone who has watched a mock jury deliberate will appreciate how group dynamics can lead to outcomes more extreme than any one individual would have proposed. Best of all, Sunstein ties the Star Wars films into his theory of judicial interpretation. Perhaps it is an understatement to point out that Sunstein is not an originalist, at least not in the sense that Justice Scalia (whom Sunstein says he liked and admired) was. Sunstein is sure that the original intent of the founders was that original intent should not govern. Instead, constitutional interpretation is a process of creation, whereby judges arrive at fair results that seem right for our times and can be (mostly) squared with precedent. He gives examples of judicial innovations that could not possibly be grounded in original intent, such as extending the first amendment to commercial speech, finding private rights in the second amendment, and the various doctrinal meanderings through affirmative action, religious liberties, and sexual and gender issues. Rather, those rulings, whether you like them or not, are like the latest chapters in a chain novel in which the author is trying to write the best possible story. It is hard to decide whether to call Sunstein’s approach a variant of legal realism or legal fantasy.
The Star Wars example that Sunstein uses to illustrate his theory of judicial interpretation is from the best moment of the best movie, The Empire Strikes Back. It is shocking and thrilling when Darth Vader announces to Luke that “I am your father.” (You can go onto YouTube and see videos that parents made of their kids reacting as that moment plays across a tv screen.) Luke denies it, but Darth Vader tells him to search his feelings to know that it is true. Except it isn’t true. Or it wasn’t. In the first Star Wars movie that Lucas made, now called Episode IV: A New Hope, Obi Wan Kenobi tells Luke that Vader killed Luke’s father. Thus, after the revelation in Empire, Obi Wan, or Obi Wan’s ghost, has some ‘splainin’ to do. Obi Wan tells Luke that Anakin Skywalker was seduced by the dark side, became Darth Vader, and essentially destroyed the man he had been. So, according to Obi Wan, what he had earlier told Luke was true, “from a certain point of view.” Sunstein does not think that Lucas’s original intent was that Luke would be Vader’s son, or that Luke and Leia would be twins, but those elements later became so right, added such impact and depth, that he wrote later stories that went in those directions. That “from a certain point of view” was like all the rationalization that we see in judicial opinions explaining how the court is following, not flouting, precedent. It is a necessary fiction in service of a bigger cause.
Now you may not agree with this theory and/or you may not like it. We think there is a lot of truth to it. We just wish that the tales spun by judges didn’t so often come out like The Phantom Menace and not so often like The Empire Strikes Back. In any event, The World According to Star Wars is an enjoyable, accessible approach to one of America’s most vibrant thinkers.
One last point. The cover of The World According to Star Wars shows an empire storm trooper bending down, ready to scoop up a toddler storm trooper with affection. It is a cute image. It is also pertinent. Sunstein says that the main themes of the Star Wars movies are fatherhood, redemption, and freedom. Those themes intertwine. Fathers can be harsh authority figures. They lay down the law. Love and repression coexist uneasily. Children eventually, perhaps too soon, get their way and break away. Meanwhile, fathers trade freedom for mind-forged manacles. In the sometimes mean business of getting a living, one can start to look like a harsh, dark father. Sunstein writes that, “At the decisive moment, children save their parents.” As we wandered around the Comic Con exhibition space, seeing the wall-to-wall silliness, seeing the children who were there and thinking about a couple who weren’t, the prospect of such salvation seemed far from silly.