Justice as Improvisation: The Law of the Extempore

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To equate jazz so fully and inevitably with improvisation is not without its problems — not the least of which is the impoverished view, dominating the West, regarding the techniques of improvisation, which Chapter 5 details extensively. Take bebop,35 for example. That solo and ensemble improvisation was central to bebop contributed to its wild formlessness. Intended here is the broadening of this per- spective through the work of critical improvisation theorists.

Ultimately, it is the relationship between the singular and general delectations, which provide meaning and content to improvisation. Judicial precedent and discretion provide focus here. Notwith- standing the determinacy offered to law by the doctrine of stare decisis, freedom is imbued into its very essence. So too is the seeming illimitable freedom of legal discretion curtailed by the unpredictable. Illustrated is that every judicial act comprises a complex and paradoxical Downloaded by [University of Victoria] at 10 October array of structured and free elements, of singularity and generality.

Thus, Chapter 7 returns to Derrida in pursuit of the creative potential of deconstructive legal improvisation. The anticipated outcome of this synthesis is a recognition of the openly responsive dimension of improvisation, which, although never complete or absolute, glances towards the singular other and keeps alive the possibility of democracy, ethics, resistance and justice in society. Deconstruction as justice as improvisation, we might even say.

With these aims in mind, the closing section of the book applies the principles of improvisation to pre- cedent-sensitive judicial decision-making to offer some practical suggestions for making more visible the singular elements of law.

Listening for Justice: An Interdisciplinary Conversation

Without failure, though, law would remain forever the same and there would be no need for law. Thus, if one takes anything from Justice as Improvisation, it is the following. A law that would not be a little bit wild and improvised would be no law at all Derrida a: Introduced in the Municipal Assembly on 17 June , its aim was to compel all nightclubs, cabarets and dance halls in the city to obtain licences and close between 3. Alderman Murray Stand expressed his discontent, not as an Alderman, but as a private citizen: I am opposed to this bill … because it is a piece of discriminatory leg- islation.

It permits certain persons to do things and denies that right to others. In our time we have condemned prohibition, but now we pro- pose to tell the people when they shall go to bed and when they shall stop spending their money. When did we get the right to set ourselves Downloaded by [University of Victoria] at 10 October up as censors of the morals of the people of this city? What right do we have to invoke the powers of the home rule law for that purpose?

Prior to voting, a report was submitted by the Committee on Local Laws, which gave the following reasons for the necessity of the cabaret laws: These night clubs or cabarets are simply dance halls, where food is served at exorbitant prices to the tune of jazz and tabloid entertainments. They are interested in speak-easies and dance halls and return to their native heaths to slander New York. Favorable action is recommended. Republican Ruth Pratt, the lone woman on the Board of Estate and a local laws com- mittee member, made a similar point in An amusing report in the New York Times 19 May , for example, tells of Jack Bugler, the manager of the Footlight Club in NYC, who was arraigned on 18 May and charged with operating a cabaret without a licence.

Greenberg and Slevin As pointed out by City Magistrate Scopas, in his retrospective exam- ination of the laws in the case of The People v. It was mainly in Harlem that musicians played the jazz about which the Aldermen complained in the 7 December report see above Chevigny In early , Mayor Walker proposed a new curfew bill, a virtual redraft of the Local Law After he entered the room with the woman, the man plan- ted marked currency at a predetermined spot.

Policemen then burst in and questioned the man. A bondsman pretending to be at the station by chance then offered to take her case. He obtained the keys to her home, retrieved her bankbook and attached himself to her account. He posted bail for the stunned woman, who was released. A few days later, before the trial, the bondsman introduced the woman to a lawyer.

The attorney instructed her to plead not guilty. Quinlivan and William M. Valentine However, according to Justice Pecora in the case of Friedman v. Further restrictions were required. First, for reasons unclear, the cards initially applied solely to chefs and waiters, and did not cover musicians until about two years later It was believed, and evidently with some accuracy, that the Joint Board of Waiters and Chefs was Communist-dominated. The court found untenable the argument made by Friedman that employees have a right to pursue employment without interference from the police commissioner The evil of which Pecora J.

Chevigny explains: Neither the news reports nor the cases reveal a single instance during the entire controversy when anyone, whether from the police or any other source, claimed that a musician, or any entertainer, was denied a card because he had committed a crime in or even close to a club. The cards were invariably denied because of a past criminal record, often for narcotics offenses. The fact that cooks and dishwashers were deemed to no longer require regulation at the same time musicians were added Cohen 19; see also Hoefer 6 supports this claim.

It stated: Intimacy is encouraged by the crowding, the drinking, the music and the dim lights. In such surroundings, a shady character can make hay while the sun is not shining. Because of these special circumstances, it is fair to put cabarets and dance halls in a class by themselves for regulatory Downloaded by [University of Victoria] at 10 October purposes. Others, such as Billie Holiday see below , were rumoured to have had their appeals continually denied because of their political commitment to desegregation Gomez , n.

When applying for a card, applicants were required to answer the following question: 7. This discretionary power was of great con- sequence to jazz musicians and other cabaret performers. The government argued that prohibition under federal law was necessary because marijuana was so dangerous. Interestingly, the campaign to criminalise marijuana coincided with proposed budget cuts to all federal agencies, including the Federal Commission of Narcotic Drugs.

Anslinger, lead the campaign to criminalise marijuana in order to ensure his Department and his job was not eliminated in the cut- backs Clarke It also meant that, when heroin hit town shortly after this criminalization, it was welcomed with open arms People in the jazz scene, espe- cially black musicians and singers, worked in a society largely controlled by Downloaded by [University of Victoria] at 10 October people who were extremely prejudiced against them.

Getting high helped black performers cope with racism; insults could be effectively ignored when on heroin, argues Clarke —6. Why did it happen? The style of life moved so fast, and cats were struggling to keep up. It was wartime, everybody was uptight. They probably wanted something to take their minds off all the killing and dying and the cares of this world. Jazz musicians, in turn, became the target of much public attention and police surveillance. Due to their race and notoriety, jazz musicians were far more likely to be arrested than others in NYC for narco- tics offences and these arrests effectively barred them from obtaining a cabaret card and thus from working in any NYC club Nicholson Becoming a Muslim during segregation in the United States thus carried a bonus: [It was] a ticket out of the racial caste system of America.

Upon adopting a Moslem name, one was received by whites as an Arab, and one could be served in whites-only restaurants. Gillespie, himself, did not convert to Islam, though he considered doing so. WC is a toilet in Europe. Upon her release, Holiday was denied a cabaret card when she returned to NYC in Blackburn Without her cabaret card, Holiday had limited options.

When offered a job by John Levy, co-manager of the Ebony Club later to become Birdland , with the promise that action would not be taken Downloaded by [University of Victoria] at 10 October against her by the police, Holiday had little choice but to take Levy up on his offer Chilton Holiday sang at the club undisturbed by the police25 and with great success Without a cabaret card, Holiday had no choice but to go back on the road in order to make enough money Blackburn She got a gig in San Francisco, California where, in , federal narcotics agents arrested her for possession Nicholson During the time between this arrest and her trial,26 Holiday returned to NYC.

While back east, she was deliv- ered another huge blow. According to Down Beat 6 May magazine, at her appeal against the card ruling, Justice Aaron Levy commended the police department for refusing to issue Holiday a card see also Chilton ; Nicholson ; Blackburn Woideck 43 , however, argues that Parker was arrested at least once for possession of drugs and received a three-month suspended sentence. His last public appearance was on 4 March — at Birdland, the club named in his honour Eight days later, he was dead. Following the arrest, Powell was committed to a state psychiatric hospital, where he was neglected and ignored for months by hospital authorities.

Upon his release from the hospital, Powell applied for his cabaret card, but was denied because of two previous convictions. The deputy police commis- sioner, who Morrison knew, granted a temporary card, but only for a limited engagement at the world-famous jazz club Birdland xiii—xiv. Johnson, as plaintiffs According to Chevigny: The facts presented sobering examples of the arbitrariness of the regula- tions.

Once convicted of a marijuana offense, Rubenstein had been twice denied a card after police hearings. From an artistic point of view, the denial to J. Johnson was even more dismaying. The indispensable master of the modern-jazz trombone, without whose work the City was much poorer artistically, Johnson had been once caught with a hypodermic thirteen years earlier.

The police admitted this to be the case in their answer. In November , an incident occurred from which the cabaret-card system never really recovered. Buckley it seems had been convicted of a drunk charge in Reno, Nevada 19 years prior and was arrested in Indianapolis, Indiana 17 years earlier for assault and possession of marijuana. He had neglected to list these arrests and conviction on his cabaret-card application, arguing later that he thought he only had to list his convictions, not his arrests, and that he had forgotten about his conviction as it was so long ago.

Lent on 3 November On Saturday 12 November , two days before the scheduled hearing, Buckley died tragically of a stroke brought on by malnutrition and a kidney ailment precipitated allegedly by his inability to afford food for the two days prior to his death Cohen xvi, Cohen made certain that only three character witnesses would be available to testify at this hearing so as not to anger Deputy Chief Inspector Lent.

Police Commissioner Kennedy immediately took charge of the hearing, ordering on record the names of everyone present. He argued that Lent should conduct the investigation because he was familiar with the facts Lent was about to make a decision when he was passed a note by Kennedy. When Cohen demanded to see the note, Kennedy deliberately tore it up A battle of words ensued, all captured by the attending press.

That night, newscasts were extended by an extra 15 minutes to report on this event The raids, staged on the weekend before Thanksgiving , produced violations; the police issued 20 court summonses The punishment for any violation was a four-day suspension, which meant shutting down the violating clubs during the holiday weekend 11; see also Perlmutter a: Kennedy Simone v.

Kennedy Relying on the decision of Friedman v. In his report to Governor Rockefeller, Mayor Wagner denied that there was any evidence of police corruption in the issuance of cabaret cards to entertainers and other Downloaded by [University of Victoria] at 10 October employees. In light of these recommendations, identity cards were made permanent in and the administration of the system was transferred back to the Department of Licenses, away from the NYPD Sibley 1.

The License Commissioner Joel J. That somehow broke the spell of fear of wicked comedians and musicians; the rest was simple. An executive session of this committee followed the hearing to discuss the possibility of reporting the bill out for early action by the NYC Council The committee voted unanimously to recommend its adoption by the council. Adams, W.

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Barnett and M. Barrett, F. Bateson, M. Beardsworth, R. Belay, B. Brannigan, R. Robbins and J. Belgrad, D. Bibliography Benjamin, W. Jephcott, in W. Demetz ed. Bennett, C. Bennington, G. Bennington and J. Kujundzic ed. Khorao- graphies for Jacques Derrida, on July 15, Bergart, R. Berliner, P. Bernasconi, R. Madison ed. Beyer, J. Birmingham, P. Holland ed. Black, H. Blackburn, J. Blanchot, M.

Davis, in M. Quasha ed.

Improvising (Il)Legality: Justice and the Irish Diaspora, N.Y.C., 1930-32

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    Carr, W. Carson, L. Cerulli, D. Chang, J. Charters ed. Charters, S. Chemillier, M. Available HTTP: ehess. Chevigny, P. Chilton, J. Press Release, 12 December. Cixous, H. Clarke, D. Cobussen, M. Cobussen, Deconstruc- tion in Music. Interactive Online Dissertation. Cobussen, Deconstruction in Music. Cohen, M. Coleman, N. Coleman, O. Collier, J. Comte, A. Conley, V. Cixous, Reading with Clarice Lispector, trans.

    Conley ed. Corbett, J. Gabbard ed. Cormack, B. Cornell, D. Cotterrell, R. Critchley, S. Norris and D. Cross, J. Crossan, M. Crouch, S. Gottlieb ed. Cruickshank, D. HTTP: www. Avail- able HTTP: www. Daquila, P. Dardess, G. Davies, M. Cohen ed. Davies, R. Davis, A. Davis, F. Davis, M. Demsey, D. Kirchner ed. Dennis, J. Derrida, J. Graff ed. Caws and I. Lorenz, in For Nelson Mandela, J. Derrida and M. Tlili eds , New York: Seaver Books, 13— Catherine Porter, in L. Waters and W.

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    Weber, in J. Quaintance, in J. Derrida, Negotiations: Interventions and Interviews, —, trans. Rottenberg, E. Rottenberg ed.

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    Bass, London: Continuum. Murphy, Genre: Forms of Discourse and Culture, 37 2 : — Knafo, SV, November Derrida, Paper Machine, trans. Derrida, Rogues: Two Essays on Reason, trans. Brault and M. Dutoit and O. Walker, Critical Inquiry, — Deutscher, P. DeVeaux, S. Dick, K. Donat, G. Donoghue, D. Douzinas, C. Dugan, J. Bibliography Dworkin, R. Eberle, E. Edkins, J. Ellison, R. Epstein, R. Erenberg, L. Eschen, P.

    Esterhammer, A. Fernandez, A. Finkelman, P. Finkelstein, S. Finn, G. Fischlin, D. Fischlin and A. Fitzpatrick, P. Sarat and S. Macmillan ed. Fleming, M. Fowler, G. Foy, H. Frank, J. Freeman, I. Freud, S.

    Brill, New York: Vintage Books. Fukuyama, F. Gabbard, K. Gallope, M. Available HTTP: cas. Lewis and B. Gates, H. Gehring, P. Goodrich, F. Special attention is given to the film of the Harlem Renaissance Broken Strings. Keywords: improvisation , impromptu , extempore , contest , Harlem Renaissance , broken strings , Werktreue , perfect compliance , Apollo , karaoke , jazz , rap , cutting contests.

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