World

The law, poker and service delivery protests: Up close with Charles Nesson, Messianic US lawman

By Greg Marinovich 31 January 2014

Billion-Dollar Charlie’s creased face was harshly lit by the intense beam of the digital projector. He was smiling, calmly, almost blankly. He seemed in no rush. Studying his Buddha-like visage, I was hard-pressed to imagine the 75-year old Charlie Nesson as the law professor who, back in 1971, had furiously cycled through Harvard’s labyrinth of underground tunnels to shake off his FBI watchers. By GREG MARINOVICH, who is currently a Nieman Fellow at Harvard.

Charlie would emerge somewhere on the sprawling campus and then run red lights, pedal against one-way traffic to ensure he could meet his client, Daniel Ellsburg, to be given more of the Pentagon Papers to publish.

He got the nickname in another case, one which inspired a book and movie entitled A Civil Action. The plaintiffs – from the community of Woburn Massachusetts – had suffered from unusually high cases leukemia caused by chemicals dumped into the town’s water supply by factories.

While the eight families were looking for reparations, Charlie Nesson asked the question: What will make these companies feel? What kind of numbers do they talk in on their annual profits – thousands, millions or billions?

So they sued the companies involved for a billion, and therefore his name – Billion-Dollar Charlie. Of course, the companies never did pay that amount, and ended up forking out $8 million to the families and 64 million dollars for a massive environmental cleanup.

These two cases say a lot about Nesson and the way he plays law. Plays law? Some would say that is exactly what he does – citing his handling of the pivotal copyright case of the music industry versus Joel Tenenbaum – a student who downloaded and shared songs on the Internet.

Tenenbaum was one of several thousand people threatened with lawsuits by the music industry in an attempt to stop online music piracy. Most elected to pay a few thousand dollars in fines. Tenenbaum decided to fight it – prompted by judge Nancy Gertner, who spoke out about the huge imbalance – the asymmetrical of arms – when she saw the legal firepower arrayed against the 25-year-old. That is where Billion-Dollar Charlie came in: one storied legal hero working for free against an array of top-dollar industry lawyers out for blood.

What followed next was not quite what people expected – Nesson’s defense of Tenenbaum was quirky, to put it mildly. The professor took a fanatically transparent approach, publishing everything, including private emails, on the Web. His defence was more idealistic than pragmatic, and Tenenbaum paid heavily for it. In 2009, Judge Gertner awarded the music industry $675,000.

Nesson has an almost Messianic quality, and evangelises about fairness, justice and freedoms (especially on the Internet). He saw the Tenenbaum case as one of principle – of opposing the practice of big business using massive statutory punishment against individuals.

While some expected Nesson to take this all the way to the Supreme Court, on Monday, the law professor said the case was “dead in the water,” and that he would not be taking it on appeal.

Nesson had gambled big, and lost.

Which brings me to Nesson’s other passion – poker. Nesson teaches his students that the practice of law is just like poker: “Lawyering is a rhetorical game. Disadvantages can become advantages. Play the elements.”

In poker, all players are dealt the same number of cards; it is the way you bet that makes the difference. On many an occasion, the cards you have don’t matter – it is all about how you play.

He says, “Poker is the perfect training for a lawyer. All is equal. You start with same chips and the same number of cards. It is all about strategy and aggression.”

It is easy to imagine that Charlie Nesson’s lawyering is akin to one of the more aggressive ways of betting in poker – the all-in gamble. Win big or go home. As in the game, only the player knows what cards he or she holds. “The best players do not even look at their cards,” he notes – they watch the rest of the table to see how their opponents react to their cards.

“Law and poker have an inbuilt benefit to aggressive people. If you fold, you can’t win. It’s the same in law; if you don’t sue, you can’t win.”

The game of Texas Hold ’Em did not work out for well for Joel Tenenbaum, who said the judgment was a bankrupting one, though well short of the $4.5 million the judge could have awarded. Perhaps the student just did not have the cards, and Nesson’s all-in gamble could only end one way.

But perhaps Nesson had a point: the massive firepower of industry lawyers ensures that justice is rarely a consideration. He spoke about how they just wear out their lesser-armed opponents; drain all their resources until they admit defeat. Nesson, it seems, is all about a rather quixotic sense of fairness, and symmetry of arms.

This is something about what Nesson says that strikes a chord; that makes one think of how popular politics plays itself out among South Africans. Tens of thousands of South Africans quixotically rail against injustice in an even more pointed asymmetry of arms every day. On the streets of townships, villages and slums, people resist powerlessness and bet their chips in a nationwide poker game.

Marginalised people know that they are outgunned in every possible way. Communities know that it is rare for the specificity of their plight to break free of the ‘service delivery protest’ trope. Yet they also know that if you play the game hard and aggressively, you are in with a chance.

In the seemingly insane game in which communities get decent services, uncorrupted policing and local politicians who care, it would seem that the wisdom of Billion-Dollar Charlie holds true: if you are not in the game, you can’t win.

If a community does not take to the streets, they are not in the game – they cannot win. And the more aggressively you gamble, the better your chances of success, whatever cards you have been dealt.

And so it is that communities are willing to sacrifice lives on the altar of media attention – to catch the eye of the gods of politics reigning supreme above them.

One death, two deaths, three deaths. In the game of protest, the martyrdom of one’s neighbours is a powerful bet. It improves a community’s chance of winning, whatever the hand they were dealt.

Billion-Dollar Charlie is an ocean and worlds away from the rutted dirt streets of Marikana/Mequeleng/Mothutlung/Zamdela, but the same rules apply – risk all or get nothing. DM

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