To Err is Human

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Democracy's Constitution / Repairing The Systen

I really think you should take time to view the PBS documentary The Confessions. It tells the shocking story of the grave injustice done to four sailors in Norfolk, Virginia in  1997. (

A young  navy wife, Michelle Bosko, had been found raped and murdered in her apartment. Based on the “hunch” of one of her friends,  the police  started investigating a Navy enlisted man, Daniel Williams, for the crime. Williams at first denied any involvement, but after an interrogation that started late at night and ended 9 hours later, he  signed a confession to the rape and murder of Michelle Bosko. The  police had found their man and further investigation stopped, at least until months later when a DNA test  showed that Williams’ DNA  did not  match the blood found at the murder scene.

Instead of releasing Williams, the police decided that Williams must have had an accomplice. So a second sailor was arrested. He too at first denied any involvement, but after another long interrogation, he also  signed a confession, one which  implicated Williams. But then  the DNA report for the second defendant also  proved negative.  The police  response was to look for  a third and finally a fourth perp.  And, since  each new confession contradicted the earlier ones,  they too  had to be reworked to appear consistent.

All four defendants eventually were either convicted or pleaded guilty. Williams and two others were sentenced  to life without the possibility  of parole.  The fourth  was sentenced to 20 years for rape.

Why did the police continue to believe Williams was involved even when that conclusion became more and more implausible? Social science can help us with that question.   Michael Lewis’new  book The Art of Unknowing  tells  how two Israeli psychologists, Amos Tversky and Daniel Kahneman,  upended conventional wisdom by showing that the maxim “To err is human, to forgive divine” is at least half right. Their  basic  message is that human beings  tend to  decide many important issues by relying on intuition and human intuition is often wrong.

Take the initial judgment that Williams was the murderer-rapist.  It turns out that when we consider the truth of a hypothesis like “Williams did the murder” our minds tend to automatically focus on information that supports its  truth, thereby making it appear more probable  than it actually  is.  This “confirmation bias” would have led the police to convince themselves of  the truth of  Michelle Bosko’s friend’s “hunch” and led  them to elicit a confession from Williams to provide support for that conclusion.

And once they had a firm belief they had their “bad guy,”  the police were, like most experts, quite good at creating scenarios  that reconciled that  belief  with later evidence, like the negative DNA tests,  that undermined it. There must have been an accomplice– or, if necessary, three.

But it wasn’t only the police who erred; there was also the prosecutor who handled the case; he seems to have had no problem with the DNA evidence contradicting the prosecution theory. Then there was the judge who refused Daniel’s  lawyer’s motion to suppress the confession, and the appellate court that denied his appeal.  Our legal system seems to have a systemic  commitment to  resolving cases that sometimes  outweighs its fear  of convicting   innocent people.

I don’t doubt  that all the  officials involved wanted to convict a  guilty person, but  the system seems to have a greater need to convict someone.  The overworked police want to close the case and move on.  The prosecutor looks to  his or her “conviction rate.” The judge tries to clear a  crowded docket. And  the appellate  courts are too busy to carefully  review  every allegation of error, and therefore assume that serious errors have been corrected  below.

There are also  practical  reasons for turning a blind eye to questionable convictions.  Every admission of error encourages more charges of  misconduct,  leading to lawsuits and a growing  loss of public  confidence  in the  criminal  justice system.

I recognize  that what happened to Williams and his co-defendants represents an extreme example of  a system run amok, but sometimes dramatic cases highlight problems too ignored in less extreme circumstances.  If you have any doubt about whether police convinced of a defendant’s  guilt are willing  to use coercion to get a confession, just take a look at the  recent Netflix  documentary  Making of a Murderer.

Unfortunately  involuntary confessions  are not the only fallible  tool used to get convictions.  Eyewitness identifications are also often mistaken. And let’s not forget that   the plea bargains  involved in the vast majority of all convictions can easily be improperly  induced by over-charging or refusal of bail.

Our criminal process sees itself as a well-oiled machine producing  correct decisions, but the truth is that  it relies heavily on judgments, like which witness to believe, that  are based on intuitions  that Tversky and Kahneman warn us are often wrong.

It is time to rethink  our approach to crime and punishment in our world of uncertainty. There are  reforms that can  reduce errors in confessions, eye witness identifications, and the plea bargain process, and we should adopt them. But I  think we must also face a larger problem. “Guilty” really only means labelled so by a system   quite  capable of  error.  So while we should attempt to improve the process, we should also soften the consequences of a mistaken  verdict.

A good place to  start would be the death penalty.  As the the PBS documentary  makes clear,  the threat of the death penalty induces  false confessions.  More importantly,  it just  doesn’t make  sense in a world of uncertainty to impose a penalty that can never be corrected  if later proven to be  mistaken.

What Lawyers Talk About

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Book/film List

If you want facts, go to Wikipedia; for truth sometimes you have to read a novel. All the traditional  differences that  divide  Democrats and Republicans are there  in    Lawrence Joseph’s   non-fiction novel Lawyerland– plus an important  new truth neither Hillary or Donald ever bothered to mention.

I am talking about the book’s chapter “Cerriere’s Answer” which  features two New York labor lawyers showing us “what lawyers really talk about when they talk about law.” One is  Martha Tharaud,  the lead partner in a boutique firm that represents employees with grievances against their employers.  The other, Robert Cerriere, is a young partner in the employment law department  of an old line Wall Street firm.

Labor and management lawyers are known for not much liking one another, and  Tharaud and Cerriere fit that description to perfection.  At first it doesn’t seem like a fair fight. Martha is  a member of the profession’s  aristocracy whose representation of the downtrodden is legendary. Robert, on the other hand, is only a  upwardly mobile drone  in a giant organization.

Still Robert proves himself  be  an able adversary.  He sees  Martha as more cynic than  saint, reaping big fees by filing  lawsuits against corporations that view them only as minor  costs of doing business.  She pretends to be the workers’ savior, but actually  is just one more  lawyer angling for a fee.  At least Robert is more  honest about his motives. Martha in turn dismisses Robert’s  professional role as “teaching corporations how to fire people.”   Her disdain for him is palpable.

But it’s at the end of their conversation  that things really get interesting.   Martha has been needling Robert about the employer practices he defends.  When he suggests that the  settlement she attained in a sexual harassment case against a client of his firm was a “nuisance” suit, she wonders aloud whether he would feel the same way if the victim had been his own management consultant  wife .  What if one of her  superiors  suddenly asks her “what color her panties are?” What if this same “nice fellow” later inquires if she gets “moist between her legs when she’s around him. ”  Nuisance suit?  Robert is silent.

But Martha’s comments about a young worker  mopping the floor of  the upscale cafe where they are meeting  finally gives Robert  an opening. Martha  rhetorically asks “Do  you wonder what that young man’s life is like?”  But before she can paint her picture of  innocence under perpetual fear of unemployment and deportation, Robert  gives us another take  on the situation.

He starts by moving the discussion from Martha’s morality tales of employer abuse  to bulletins from the “real world.” “A Bosnia Serb forced a Muslim prisoner to bite off the testicles of another prisoner who wouldn’t stop screaming. Well, he stopped screaming.  Don’t cringe, Martha. It’s the real world.”

Then Cerriere  situates Martha’s young man in the “real world” economy. He suggests the young man might be  a Brazilian or a Honduran; in either case, most likely an illegal. “You think Mop Boy wants to go back to Honduras?  What happens to a mop boy in Honduras?  Look at him– he’s eating an apple Danish and drinking a  latte.”

“Mop boy”, like all of us, must fit into the “real world” economy.  Technology has transformed the world into a vortex of  endless innovation.  Industries bloom and become obsolete in a generation.  “Everything is up for grabs.”  And the people with the knowledge and intelligence to do so are  grabbing  whatever they can get.  That’s the ethic of the  “real world.”

In Robert’s telling, the world economy has morphed  into a game of musical chairs with one  difference; the chairs are no longer  allotted by chance. Instead they go to the workers with the most marketable skills, a metric that correlates closely with race and class.    How will “Mopboy” do in that competition?

Or, more btoadly, how will most workers  fare as   technology gets smarter and the number of  workers needed smaller?  Maybe Robert was anticipating this recent article on  lawyers and automation on the website Legal  Productivity.  It appears that  lawyers’ much prized analytical skills no longer protect them from competition with computers. Martha’s lawsuits won’t be of much help to workers who never get hired.

Like a skilled short story writer,  Joseph ends the chapter with Robert’s  bombshell.  Martha does not reply.    Robert is not  defending the morality of the  scenario he describes; perhaps he deplores it.  He only insists it is the   present reality  and likely to continue.  It’s  also the  professional arena  that shapes how Martha and Robert talk when they talk  about law.

I must admit that to  my ears  Robert’s  tale  has  the ring of truth,  a truth that both Hillary and Donald ignored last Fall  as each  sketched his or her own upbeat picture of the future.

They say ‘You can’t stop  progress!”  But what some call “progress” others may see as a  form of social suicide.  Maybe  it’s time for a new “real world.”

Is Mitch McConnell Too Smart for His Own Good?

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Democracy's Constitution / The Sjupremes

Last Spring Senate Majority Leader Mitch McConnell embarked on a risky plan to deprive President Obama of the chance to appoint a Supreme Court Justice during his last year in office.   McConnell  won that bet; now it’s time to consider what the final consequences of that victory will be. Some say it gives the Republicans  control of the Supreme Court for  the foreseeable future. But turning the   Supreme Court  into an overtly partisan institution may not serve anyone’s long term interests, especially those of the Republicans.

It’s true that Trump pulled off an upset in the electoral vote, but this was accomplished   against a weak opponent  after eight years of Democratic rule that had started  to sour many Americans. Still the demographic trends that everyone was touting a couple of months ago were not bogus; they make clear we  are becoming more and more a multi-racial nation just at the time the Republican party has branded itself as defender of the grumpy white male.

The demographic future belongs to the Democrats and, if they  show some attention to their traditional “average American” base, they should  win  the presidency convincingly in 2020  and long thereafter.  What happens to McConnell’s Supreme Court then?

McConnell’s attempt to create a “Republican” Supreme Court may come to an  ironic conclusion. Democratic  presidents till now have tended to appoint leftish  centrists  (Breyer,  Kagan ) while Republican presidents  have chosen conservative  ideologues (Scalia, Alito).  But  the new polarized political environment McConnell has created will change that; Democratic presidents will appoint  more ideological justices, tilting the court more and more to the left.

Of course, so long as they control the Senate, Republicans will  still be able to try the same tactics McConnell used so successfully last year to  stymie Obama.  But I don’t think that strategy will  have  much success, at least in the first 3 years of a presidential term.   The public has learned the reason we have an odd number of justices; an  even number is  a  recipe for  stalemate.

I also think that most Americans feel that a presidential nominee to the Supreme Court has a right to be considered and voted on by the Senate; defying  the conventional procedure will not be considered fair play. So too the public feels that the President’s choices deserve some deference.  It is not likely that the public would  uphold the routine Republican rejection of  the nominees  of Democratic presidents. Every time a qualified nominee is rejected, the next nominee will be harder to stop.

Once a Democratic majority on the Court is in place, the Republicans will reap the consequences of McConnell’s cleverness.  A permanent  democratic majority  will  feel entitled to dismantle the conservative constitutional structure that has endured since Nixon was elected. One of the first things to go will be the partisan gerrymanders which are the source of Republican majorities in the  House.

I recognize that   predictions of the political future are often wrong, as mine might also be.  In truth,  I hope I am wrong. I would welcome the  new doctrine, but  it would come at too high a price. An overtly  partisan Supreme Court is a bad idea no matter which party holds  the whip hand.

The Court’s legitimacy comes from the  people’s belief that the justices are  impartial judges, not  politicians in robes.    A good example is the Warren Court. The Warren Court’s decisions were controversial, but its legitimacy could never be challenged because its  two most influential members- Warren  and Brennan– were appointed by a Republican president. It was a “political” court in the sense that its decisions had serious political impact, but that is true of any Supreme Court.   It was never a politically partisan court.

The two most controversial cases of the 70’s were Roe v. Wade (abortion) and Bakke (affirmative action);  Justice Blackmun  wrote the majority opinion in Roe, and Justice Powell wrote   the controlling  opinion in Bakke.  Both were appointed by President Nixon. More recently, the Court settled the controversial question of same-sex marriage in the Obergefell case. Justice Kennedy, a Reagan appointee, wrote the majority opinion.

Unfortunately, we also  have a good example of a politically partisan case. It is, of course, Bush v. Gore where a Republican-appointed majority gave the 2000 presidential election to the Republican candidate by adopting a interpretation of the Equal Protection Clause none of them would  have supported if the names of the appellants and respondents had been reversed.

The Supreme Court’s political strength comes from the public’s acceptance of it as as  bi-partisan institution. It is not a good sign when the news media feel the need to identify the justices by the party affiliation of the presidents who appointed them.  A Supreme Court perceived as the tool  of a partisan ideology cannot perform its constitutional role as constitutional referee.

I hope that  President  Trump will   nominate a Republican Merrick Garland — a moderate, middle-aged judge who commands respect of all his or her  colleagues. Unfortunately, that’s not going t to happen. . And, if Trump appoints a  conservative ideologue, the Democrats will be guided by what might be the only universally accepted principle in American politics–“turnabout is fair play.”  In designing their  tactics, they will learn from  McConnell’s clever strategy in the Garland fight.

Let the games begin!

Creative Math

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Heroes / Repairing the System

I believe that imagination, not logic, is the essential ingredient in good legal reasoning.  But imagination need not be vague or dreamy. Sometimes the imaginative solution to a thorny legal problem can be as clear and simple as 1,2,3.

A good example is found in a recent case involving the recurring evil of political gerrymanders. This NYT editorial tells the story well.

“Gerrymander” is a term most people have heard of, but few understand. It’s the name history has assigned to the dishonorable tradition of political parties in power drawing the lines for election districts to favor their chances of winning.

Here is a simplified example of political gerrymandering. The State of Dairyland has a total of 100 voters, 60  Democrats and 40  Republicans. They are to be divided into 10 election districts of 10 voters each. If the Republicans are in power, they can decide how many Democrats and how many Republicans will be in each district by use of sophisticated computer programs. By clever drawing of the district lines they can turn their 40% of the total vote into the election of 60% of their candidates. Let’s be clear—when Democrats are in power, they do the same.

Here is how it works in my fictional Dairyland. The Republicans draw district lines so that the Democrats “waste” votes in a few landslide victories—they might draw the lines in Districts 1-4 so the Democrats win all four races by a 9-1 vote. That means that there are only be 24 Democratic votes (60-36)) left for the other 6 districts. This will enable the Republicans to win the  six districts 6 votes to 4 by also gerrymandering those districts.

The Republicans have transformed their 40 % of the votes into victory in 60% of the races. The reason the Republicans can perform this magic is that they have designed the system to ensure that the Democratic voters cast 12 “wasted” votes. These are the 12 votes in Districts 1-4 that they did not need to win. They needed six to win, but got 3 surplus votes in each of the four districts, 12 votes that would have brought them victory in two or more of Districts 5-10. The voters voted democratic, but the gerrymandered system created Republican legislators who will enact Republican policies.

This is not an occasional freak occurrence in the United States, but pretty much business as usual. My Dairyland example is a simplified hypothetical, but it does show  how Republican-controlled state houses can and have in the recent past  drawn election district lines that permit them to transform a minority of the votes into a majority of elected state representatives in states all across the country. Wisconsin is a good example. Wisconsin Republicans in 2012 were able to create the election districts that allowed them to elect over 60 percent of the members of the Wisconsin Assembly even though they received only 49% of the votes.

This sad situation exists despite the fact that partisan gerrymandering clearly violates the basic democratic principle that each voter should have equal voice. But persuading courts to mandate effective remedies for partisan political gerrymanders has proved difficult because it is impossible to draw districts that in no way favor one party or the other to some degree, and therefore you get into messy arguments about how much unfairness is too much.

That’s where the creative math comes in. Democrats in Wisconsin challenging the 2012 Wisconsin election were represented by University of Chicago law professor Nicholas Stephenopolous who made an argument that was not in the least “messy”; it introduces a mathematical formula that quantifies the discriminatory effects of the Republican gerrymander and provides the court a simple numerical answer to when the discriminatory effects violate the Equal Protection Clause.

The Democrats’ lawyers argued that that court should take all the “wasted” Democratic votes in the districts Democrats won and subtract from this number all the votes Republicans “wasted” in the districts they won. Here’s the math. The Democrats received 3 more votes than the 6 they needed to win in each of districts 1 -4 while the Republicans got  only the six votes they needed to win in Districts 5-10. The Democrats “wasted” 12 votes and the Republicans didn’t waste any.  Subtract 0 from 12 and you get 12.  That is the  total  number of “wasted votes.”  If you want to find out how great a percentage the “wasted” votes were of the total votes cast, you divide that 12 by 100, the total number of votes cast.  You arrive at an “efficiency gap” of 12%. a percentage well above what could be explained by factors other than intentional gerrymandering.

I want to emphasize the creative aspects of Stephenopolous’ argument. One is its ability to identify and isolate the constitutional evil perpetrated by political gerrymanders. Twelve Democratic voters in those heavily democratic districts had no real voice in the election, and their silence was a direct and intentional consequence of how the Republicans set the district lines. These votes were not so much “wasted” as nullified by design. Twelve percent of Wisconsin voters (and 20% of the Democratic voters) in the election were silenced by gerrymander, a result completely out of synch with our constitutional ideal of “one person, one vote.”

Stephenopolous’ second creative move was to translate the constitutional injury into a simple numerical formula easy to apply and difficult to ignore. Judges in these cases are faced with scores of varying fact situations. The “equity gap” formula provides them  a simple formula that focuses on the constitutionally relevant factors.

I am happy to report that a three judge U.S. District Court panel in Wisconsin has agreed with plaintiffs in the Wisconsin case by a 2-1 majority– both on the methodology and the conclusion. It’s important to note that all three judges were Republican appointees. The case might be appealed to the Supreme Court which has been looking for an objective norm to decide partisan gerrymander cases. The “efficiency gap” argument might just become the law of the land.

If so, we will have to credit a very creative law professor. Of course, Stephenopolous’ argument is also rigorously logical, but it is logic in the service of imagination. That’s the way it  is with a good legal argument.

Don’t Blame Donald!

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Heroes / Repairing the System

Here is a NYT article detailing the misery of migrant farm workers in California’s Salinas Valley.

The gist of the story is that since the 1930’s Salinas Valley has been famous for the quality of its vegetables and the poverty of the migrant workers who harvest them. And this is one we can’t blame on Donald Trump. Salinas is in the middle of California, a state with a Democratic governor, a Democratic legislature, and which voted lopsidedly for Hillary in the recent election. Maybe we should face the fact that Trump is more a symptom than the cause of our national failings.

So today I am going to enjoy my food, friends, and family; and also add not being a migrant farm worker to my list of things to be grateful for.

Tomorrow I will make a contribution to California Rural Legal Assistance (CRLA), a group of lawyers I know has been fighting for the rights of California farm workers for a very long time. You might consider doing the same.

A Golden Oldie

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Book/film List / Heroes / Legal Fictions

The first season of Amazon’s Goliath grabs you from start to finish. Billy Bob Thorton is dynamite as Billy McBride, a failed lawyer trying to bring down a vicious corporation; and perennial Emmy winner David E. Kelly has lost none of his ability to write sizzling dialogue.

Still I can’t deny that Thornton’s character bears a strong resemblance to Paul Newman in The Verdict, a down-and- out lawyer with alcohol and marital problems. And the ending echoes the final scene in Michael Clayton, another film where an underdog lawyer prevails. Let’s face it; the “underdog hero bests powerful villain” plot has been with us forever. That’s why even though the show is popular with viewers, 82 on Rotten Tomatoes, I fear some of you may pass on it because of its well-worn plot.

Kelley is not hiding the fact that he is re-telling an old story; the show’s title is “Goliath.” Still we should ask ourselves whether we should fault him for relying on such an unoriginal plot.I don’t think so; no matter how many times we see it, the “David versus Goliath” story raises a question that always intrigues us—-how can a good person cope in a world that so often rewards power over virtue?

The answer is we tell ourselves stories where a virtuous underdog hero vanquishes a powerful villain. This may sound like retreating into a fantasy world, but not necessarily to reside there permanently. Sometimes a little fantasy can do us a world of good.

If you watch a Superman movie and then jump off a tall building in an attempt to fly, the consequences will be disappointing. But less extreme escapes from reality can prove to be quite salubrious. At a minimum the “Goliath” plot reminds us that the most powerful do not always win. This is not only a pleasant thought, but also a true fact. Underdogs do sometimes win. Think of Donald Trump. Whatever you think of his virtue, he was an underdog. This realization that underdogs sometimes win may lead us to model ourselves on our own underdog heroes and start taking a more active role in our own lives.

Some of us may even become heroes ourselves. Consider the case of Edward Snowden. Snowden reminds me not so much of Billy McBride (or Donald Trump) as Jefferson Smith, the underdog hero in Frank Capra’s classic Mr. Smith Goes to Washington. Jeff is an earnest scoutmaster who suddenly finds himself appointed to fill a vacancy in the U.S. Senate. He soon discovers that he is really there as a stooge fronting for an evil political cabal planning a dam that will ruin a pristine river. Jeff decides to fight back. He loses his political innocence, but gains a lot of confidence in discovering he has talents he was unaware of. Jeff eventually conquers his Goliath.

We don’t know whether Edward Snowden ever saw Mr Smith. Certainly he was exposed to a lot of underdog hero narratives growing up in America in the late 20th Century. Snowden joined the U.S. Army Special Forces hoping to fight in Iraq to help the Iraqis to escape from oppression. When a serious injury during training ended his dream of fighting for Iraqi freedom, Snowden decided to serve his country as a computer expert at the CIA. Like Jeff Smith, Snowden discovered that his government was engaged in unsavory activities and lying about them. And, also like Smith, he decided to fight back.

The Golden Oldie finds life in a new telling, and the new version inspires viewers, some of whom may even become real life heroes. So enjoy Goliath , but don’t think of it as a guilty pleasure; it just might be the whisper in your ear that reminds you that maybe you too can be a little bit more the person you always wanted to be. And these are times that call for heroes.

The Art of Herding Coyotes

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Book/film List / Legal Fictions

It’s hard for lawyers not to be envious of scientists, fellow professionals who seem to continually come up with discoveries that improve the human condition while law muddles through from one crisis to the next.
Dan Flores’ book Coyote America may help us to better understand why law seems so fallible.

The book is about coyotes, not law, but its discussion of “Old Man Coyote”, the mythical beast that is featured in thousands of Native American tales, adds a new dimension to discussions of law. Old Man Coyote is a divinity of sorts, not the creator of the world like the Christian God the Father, nor a paragon of virtue like his son Jesus, but a mixture of the best and worst human qualities—creativity and deceit, altruism and self-absorption, courage and credulity.

Flores argues that Native American tribes all over the West fixated on Old Man Coyote because they felt that they and the coyote had a lot of common traits. Both were mid-sized animals, predators and potential prey, living in a world of larger carnivores. Both species were only able to survive because of their superior intelligence and the capacity to adapt to new situations.

So the Native American tales about Old Coyote Man can be seen as an early a study of human psychology. In some ways it is an attractive picture; Old Man Coyote is an activist eager to live out the possibilities offered by a wondrous world. But human “coyote psychology” also raises serious questions about law’s ability to achieve the goals we assign to it.

Old Man Coyote is not only smart; he is also by nature restless, never satisfied with his current situation, and usually over-confident in his ability to change things for the better. In the stories he spends most of his time careening from success to disaster. If man shares psychological traits with this restless anarchist, running a legal system sounds a lot like trying to herd coyotes.

And Old Man Coyote lives in a bucolic, static society much more governable than our complex, dynamic, and pluralistic world composed of groups with different histories, values, and views on what constitutes an acceptable future. Not only are the people law aims to govern in many ways ungovernable, but the laws that regulate them are made and enforced by men and women sharing the same flawed “coyote” psychology.

While we speak of the “law” as if it were a single actor, in the United States the making and enforcing of law is parceled out to thousands of jurisdictions with different legislative, executive, judicial branches, many with rival views of what the applicable law means. A final irony is that those who wish to evade the law’s sanctions are encouraged to engage the services of highly paid, state-licensed experts charged with an ethical duty to assist them.

I find the “herding coyotes” metaphor very sobering. And it’s true the American legal system is dysfunctional on many fronts, not the least of which is access. Most Americans cannot afford to pay the legal fees that give them meaningful access to the system. Still I think humility is a better response than shame to the realization that our legal system is not an ideal one. By the very nature of its task, law will always fail to some extent. It is better discussed in relative terms like “better” and “worse.”

There are many things for law and lawyers to be proud of. Trial by by jury seems a big improvement over trial by ordeal. Law is the primary way we manage to institutionalize ethical principles into public life. All the ingredients of due process like an impartial judge, the right to cross-examine our accusers, the right to appeal judgments to a a higher tribunal are not only ethical principles made concrete, but also great improvements on what came before. And law has also evolved to protect other ethical principles like freedom of expression, equal protection, and privacy. These are cultural achievements of the first order.

Indirectly, Coyote America supports my thesis. Flores retells the story of how for most of the 20th Century the U.S. government waged a war on predators, including wolves and coyotes. It pretty much eradicated the wolf population, but was never able to subdue the wily coyote, although killing hundreds of thousands of them in the attempt. But in the 1960’s and 1970’s the law intervened to protect animal rights. The crowning achievement was the Endangered Species Act which curtailed the government’s program to infect coyote habitat with sophisticated new poisons. The coyote population and range continues to grow in America today partly because of legal protections, but mostly due to the same superior intelligence and adaptability we see reflected in the Native American tales.

I like this story for more than one reason. First, it supports my claim that law often embodies ethical principles. Here it was “animals have rights too.” We should be proud that law and lawyers turn pretty ideas into enforceable norms.

But I also admit taking some guilty pleasure in noting that the primary weapons in the government’s arsenal against the coyote were deadly poisons concocted by scientists. This fact not only helps cure my inferiority complex about science, but transforms it into a sense of empathy. I realize now that while scientists may inhabit an environment of pure rationality in the laboratory, when it comes to decisions about what products to produce and who to direct them at, they live in the same “coyote” world as the rest of us.


The Story Behind the Story

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Repairing the System

What’s the story behind the story of Chicago police officer Jason Van Dyke shooting 17 year old Laquan McDonald multiple times as the boy was walking away from him, but still claiming he acted in self-defense, a lie several of his fellow officers repeated in their official reports of the killing? And why would police officers lie in official reports, an act that could get them fired? And, finally, is McDonald’s death a tragic error or a symptom of a deeper structural problem in the Chicago Police Department (CPD)?

Jamie Kalven’s four-part essay in The Intercept goes a long way toward answering these questions. Kalven thinks the answers all revolve around the CPD “code of silence”—officers never “rat” on one another. The “code” may sound like an example of admirable loyalty between comrades. “You’ve got my back and I’ve got yours.” But Kalven points out that it plays a more sinister role in the department’s culture. The code of silence is not so much about personal loyalty between comrades as it is an essential cog in a top-down bureaucratic dynamic that forces all police officers to choose between four career profiles: criminal, crime enabler, stooge, or pariah.

Shannon Spalding was young police officer assigned to the housing projects on Chicago’s Southside. She started hearing talk that Sargent Ronald Watts was running a protection racket for drug dealers in the projects. They were required to pay Watts a “tax.” Those who did were left alone; those who didn’t were “busted” and had their drugs confiscated to be sold by Watts’ team. There were even stories of murders of uncooperative drug dealers.

At first Spalding didn’t give much credence to the rumors. She had ridden in a squad car with Watts when she first joined the force, and found him to be a good guy. (This was her “stooge” phase.) But when her partner Danny Echeverria came across more information on Watts’ criminal activities, they decided to report him, and soon found themselves assigned to a joint anti-corruption task force with the FBI.

But just as that investigation was reaching the point where a prosecution against Watts was possible, Spalding and her partner were taken off the case by the head of the Internal Affairs Department, Juan Rivera, the man in charge of investigating “bad” cops. Rivera also let it be known throughout the department that Spalding and Echeverria were working on prosecutions of fellow officers. Suddenly the two young officers became pariahs, not only ostracized socially, but also in physical danger.

Why would the man assigned to stopping police criminal behavior interfere with a promising investigation against an officer believed to be a criminal? Kalven suggests that Watts knew that he was not the only Chicago police officer engaging in illegal activity and that he made clear that, if he was prosecuted, he would bring others down with him. Numerous senior officials were therefore vulnerable to charges of either engaging in criminal activity or enabling others who were by looking the other way. This not only would put a lot of insiders at risk, but also the publicity created by a new wave of police scandals would not be good news for head of the Internal Affairs Division, or the mayor he reported to.

So it made bureaucratic sense for the official whose job is to prevent police crime to act as a crime enabler. Eventually Spalding and Echeverria realized their careers in the police force were effectively over and filed a whistle-blower lawsuit charging top leaders of the CPD with serious retaliatory actions against them. Here’s how things finally played out. Watts was charged with one offense of “theft of government property”, and served a short sentence and paid 5200 dollars in restitution. Upon his release he retired to Las Vegas, presumably with millions of dollars gleaned from his decades of shaking down drug dealers.

Then just before the trial in their lawsuit,, Spalding and Echeverria agreed to a 2 million dollar settlement of their case. This may sound like a partial vindication of their efforts, but Kalven argues that the settlement actually solidified the code. Mayor Rahm Emanuel had once given a speech in which he decried the “code of silence” operating in the CPD. The judge in Spalding and Echeverria’s case had ruled that Emanuel could be questioned under oath about how the code operated. And all the officers who had exonerated Van Dyke in their reports would be also be required to testify under oath. Filing a false report can lose you your job; perjury is a felony. The settlement made it unnecessary for the mayor or the officers to testify. The settlement appears to be not so much a repudiation of the code of silence as an example of the code in action.

But the Spalding and Echeverria’s lawsuit and Kalven’s article do give us a better understanding of what happened in the Laquan McDonald killing. Why did Van Dyke shoot and kill a boy who presented no clear danger to him? While we still do not know all the thoughts in his mind, fear of criminal prosecution does not appear to have been one of them; Van Dyke knew the “code’ would protect him. And why would his colleagues lie to protect him? Whatever role comrade loyalty played, there were more practical reasons for them to corroborate Van Dyke’s version of events. While a false report would violate the rules of their employment, the rules were never enforced in a “code” situation. But telling the truth would have immediate and serious consequences. They would become departmental pariahs in much more danger than either Spalding or Echeverria because they would have had actually violated the code. And, finally, should we view the McDonald killing as a tragic mistake or a symptom of a system out of control? I’ll leave that question for you to answer for yourself.

But there’s one more omnipresent character in this story who we must remember—the victim. Here I mean innocent citizens who have been the been the victims of police conduct the code condones—people like Laquan McDonald and countless other innocent, mostly minority. Chicagoans.

Will this ever end? Probably not until some people who do not wear uniforms take responsibility. Mayor Emanuel certainly is a case in point. He approved the settlement which allowed the cover-up to continue. But let’s not forget the citizens of Chicago who foot the 2 million dollar bill for the settlement. They would appear to qualify both as enablers and stooges. This story will only have a happy ending when the people of Chicago elect a mayor with an explicit mandate to make dramatic changes in how the CPD does business.

Of course,  there is one more question to ask ourselves–Is there any reason to believe that this problem is unique to Chicago?

This linked article not only summarizes Kalven’s argument, but also provides links to Kalven’s complete text.

update 1/1/17   This follow-up article by Jaime Kalven suggests that CPD is living up  to our worst fears.

The Big Apple Shows How Free Lawyers for the Poor Pay for Themselves

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Democracy's Constitution / Repairing the System

Leyla Martinez is a good example of the problem and its solution. Ms. Martinez, a single mother, had just been evicted from her apartment in the Bronx after a year’s struggle representing herself in the New York Housing Court. Then she was able to contact an attorney at the Urban Justice Center; soon thereafter Ms. Martinez and her kids were back in their apartment. Seventy percent of low-income tenants come to housing court without a lawyer, but those who do have lawyers are 75% less likely to be evicted.

Now the New York City Council is considering a landmark bill that would guarantee low income tenants facing eviction legal representation. An added bonus of the proposed legislation is that the legal expenses incurred by the City will be more than made up for by the savings gained by keeping families out of city shelters.

It turns out that lawyers are not only effective; we are also a bargain.

This excellent NYT article tells the full story.


Justice Kennedy’s Selective Amnesia

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The Sjupremes
Supreme Court Justice Anthony Kennedy speaks to faculty members at the University of Pennsylvania law school, Thursday, Oct. 3, 2013, in Philadelphia. (AP Photo/Matt Slocum)

We all hate Citizens United, but sometimes we don’t remember why. So let me remind you.

To take a nostalgic example, let’s consider Jeb Bush’s campaign for the Republican nomination this past year. Under current law if you wanted to support Jeb, you could make a direct contribution to his campaign, but it would have to be limited to 2700 dollars. On the other hand, you could make a donation of any amount to his Super Pac Right to Rise. The advantage of the Super PAC is that there are no dollar limits on the contributions it receives or the expenditures it makes. They can be in the millions. The disadvantage is that the expenditures must be “independent”, not coordinated with a candidate.

Technically, Right to Rise was independent of the Bush campaign itself, but functionally it was an integral part of it. Guileless Jeb once inadvertently admitted as much. He proudly announced, “We just started to advertise…”– then he corrected himself–“our Right to Rise Super Pac started to advertise, not our campaign.” One of many possible examples of coordination was the fact that his “independent” Super Pac paid political operative Trent Wisecup 16,000 dollars for political strategy services. Wisecup was also the Bush campaign Director of Strategy. And Bush’s approach was the rule, not the exception. The “independent” expenditure exception has made a farce of campaign finance reform.

Lee Fang of The Intercept had the clever idea of asking Justice Anthony Kennedy, the author of the majority opinion in Citizens United, what he now thought of the case’s impact. Fang reminded Kennedy that in his opinion he had cavalierly rejected the argument that so-called “independent” contributions by large donors would actually be coordinated with political candidates to have a corrupting effect on the election system. Kennedy’s argument had been simplicity itself:–“By definition an independent expenditure is political speech directed at the electorate and not coordinated with the candidate.” Fang pointed out that history seemed to have proved Kennedy wrong; all candidates now were coordinating their campaigns with allied Super Pacs. Kennedy’s reply was “No comment.”

Kennedy’s error was one of fact, not logic. He didn’t foresee the negative impact his decision would have on the democratic process. While maybe we should have judges who are more aware of how life operates in the “mean streets” of political life, we can’t expect a judge to be a factual expert in all the areas that cases present. After all, Kennedy is a judge, not a lobbyist.

But the fact is that, before he was a judge, Kennedy was a lobbyist, presumably aware of how easy it would be for a technically “independent” expenditure to be covertly coordinated with a candidate’s campaign in violation of the law.

Citizens United was a 5-4 decision.

The Makings of a Great Lawyer

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Book/film List / Legal Fictions

What separates a “great” lawyer from a merely good one? Graham Moore’s new novel The Last Days of Night gives us what I think is a persuasive answer to that fascinating question.

The Last Days of Night tells the story of Paul Cravath, a 26 year old recent law graduate, who in 1888 suddenly becomes lead defense counsel for the industrialist George Westinghouse in one of the most famous patent cases of all time. Thomas Edison had sued Westinghouse for infringement of his light bulb patent. Actually Edison brought 312 individual cases asking for a total of 1 billion dollars in damages. It was one of the biggest cases of all time, but Cravath’s first. The reader gets an extra jolt of pleasure from knowing that this neophyte lawyer will go on to be the name partner in perhaps the most famous law firm in the world.

Moore’s historical novel tells the story of Cravath’s handling of the case and, in so doing, the lessons he learns about the practice of law, and himself. Moore even throws in a romance with a beautiful opera singer who becomes Cravath’s wife. The book also provides the lay reader WITH a comprehensible explanation of the scientific issues behind the case as well as a vibrant portrait of life in New York City at the end of the 19th Century.

One reason that Moore is able to provide us a riveting narrative from start to finish is his liberty as novelist to re-arrange the “facts” to create the most interesting story. He admits that his narrative even presents events as true that may not have happened. This historical fiction may be almost as much fiction as it is history. Still I think his “based on a true story” approach to history does not prevent Moore from providing us not only an excellent entertainment, but also teaching us a lot about how science actually works.

But I recommend the book to you for A different reason– I believe that the qualities that Mr. Moore tells us “make” great scientists are the same ones that make great lawyers like Paul Cravath. Thomas Edison believed that there are three qualities necessary to be a great scientist. First, you have to imagine a new future– a desirable state of affairs that does not presently exist. In the late 19th Century a world where light conquered darkness was such an idea. Then you have TO devise a means to make that hypothetical future a reality. In the “light bulb” case this turned out to be “alternating current”(AC) that allowed electricity to travel long distances. Finally you have to “sell” the idea and the means to the actors who can make things happen. In the “light bulb” case IT was the Wall Street investors who could finance the “wiring” of the world.

I will not spoil your reading pleasure by describing Paul Cravath’s lawyering in detail. But I am confident that readers of Moore’s novel will discover that Cravath’s method in handling of the Westinghouse litigation sounds very much like the idea/ means/, sell triad that Edison ascribes to great science. First, he imagined a “future” that was congenial to his client’s interests. Then he created the legal mechanism that could make that future a reality. Finally, he used his persuasive skills to “sell” both the idea and the means to the parties that had the power to make it a reality.

Albert Einstein once opined that while you have to learn the rules in science, you also have to play the game better than anyone else. In Paul’s case, he had to know the legal rules, but imagination and craft were the weapons that allowed him to play the game to win. Cravath didn’t best his opponents by subtle distinctions of applicable case law. He outsmarted them with creative ideas and clever strategies.

There has always been a temptation to “upgrade” law’s intellectual status by treating it as a “science.” The most recent example is the “law and economics” movement that uses the methodology of economic science to evaluate the “efficiency” of legal rules. Moore’s book illustrates that no matter how we choose to describe the study of law the practice of law remains more an art than a science. Moreover, Moore’s book suggests that the same is also true about the practice of great science.

Winner or Loser?

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Book/film List / Heroes

The new film Don’t Think Twice is my favorite kind of movie; it makes you laugh watching it and makes you think later on. In telling the story of the breakup of an improvisational comedy troupe in NYC, the movie celebrates how a combination of talent and camaraderie can produce infectious excitement. But it is also a cautionary tale about how group success falls prey to individual ambition.

The troupe specializes in taking a random comment from the audience and running with it, each member of the cast riffing on the contribution of the last. The comedic whole turns out to be much more than the sum of the individual contributions. The audience not only feeds off the creativity of the individual contributions, but also shares in the joy the cast members take in their collective enterprise. It’s great to be young, talented, and free to do your own thing, even if the joy is linked to a grad student standard of living and involuntary envy of the stars of hit shows like Weekend Live.

Tensions arise when one member, Jack, receives and accepts an offer to join the cast of Weekend Live. Suddenly this mutual admiration society transforms into a mutual recrimination society. The cast members left behind cannot help but see their colleague’s success as evidence of their own failure. They accuse Jack of selfishness and even plagiarism. He in turn is deeply wounded by his colleagues’ refusal to rejoice in his success, but also finds compensation in the knowledge that he is headed for a larger paycheck and a higher rung on the showbiz status scale.

Watching the film, I could not help but see Jack as a “winner” in moving up the ladder and his colleagues as “losers.” But writer /director Mike Birbiglia is too smart to make it a “winner take all” affair. Gradually the abandoned cast members start to move towards new futures with the knowledge that they had been true to each other and that at least once in their lives they had done something really good on their own terms. Maybe it will happen again.

And Jack finds there is a downside to his success. Not only has he lost his best friends, but he is no longer a creator of original comedy sketches. The head writer of Weekend Live  makes clear that he sees Jack as only a small, well-paid cog in a large entertainment machine that has little interest in him beyond his next performance. It doesn’t look like Jack is going to be a new Richard Pryor or Bill Murray. More likely he will end up as the noisy neighbor on some network laugh-tracked sitcom.

That’s where the thinking starts to kick in. Maybe we’ve got the “winners” in Don’t Think Twice all wrong. It turns out that “winner” has more than one definition. In some contexts, it is the person who prevails in a contest. The Cleveland Cavaliers won the NBA title this year. But an alternative definition is “a good or successful person.” In short, someone we admire. By that definition, maybe it’s the abandoned colleagues who stayed loyal to each other and their work who are the winners.

Of course, if they were indeed “winners,” they were very lucky ones because almost all of them would have accepted an offer if they had received it. But that’s my point. We live in a culture that so magnifies the importance of status and income that we might be persuaded to act against our own self-interest more broadly considered. That is not to say that every disappointment you experience is a blessing in disguise, but some may be. And it’s important to recognize them–either at the time or later.

Is Ryan Lochte a “winner?” He has an Olympic medal so I have to say “yes,” but most of us still view him as a “loser.” I’m not suggesting that he became a “loser” at Rio; I think he just revealed his true self there. How about John Turturro’s character, John Stone, in the HBO mini-series The Night of? Stone doesn’t dress well or make much money, and his peers don’t show him much respect. But he’s a smart lawyer who earns enough to support himself and his cat in a modest lifestyle while representing people who really need representation. He’s a “winner” to me.

And then there’s Colin Kaepernick. Are the sports superstars who remain silent about race to protect their advertising contracts the ”winners” and the struggling quarterback who spoke out about racism as a matter of conscience a “loser?” You tell me.

Let’s Give Law a Chance

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Repairing the System / Repairing The Systen

We are all unhappy about continuing stories of widespread police abuse of African-American citizens, but there seems to be no effective remedy available.

One egregious example was the police killing of  seventeen year old Laquan McDonald  in Chicago.  McDonald  was shot by officer Jason Van Dyke. Van Dyke claimed McDonald  was coming at him with a knife and he only  shot in self-defense. Several of his police colleagues filed statements corroborating Van Dyke’s story. Then a police video was released showing that McDonald armed with a knife, but was walking away when Van Dyke shot him sixteen times. Van Dyke will go on trial on homicide charges, but persuading 12 jurors to find a police officer guilty beyond a reasonable doubt has proved to be a near impossible task. Will this ever end?

Maybe it will.  Chicago Police Superintendent Eddie Johnson (photo) has recently filed charges against the officers who signed false statements about what they witnessed the night McDonald died. If a civilian review board finds that the officers did file false statements,  they will be discharged. The policy is now clear: “If you’re  a liar, you’re fired.”

The moral to this story seems to be “when all else fails, try the law.” The whole idea behind the “rule of law” is that legal rules will be fairly and impartially applied to all citizens. Unfortunately, in our society this simple principle is not honored. The rules are over-enforced against minorities and under-enforced against the politically powerful, a category that includes the police. Superintendent Johnson has made a wise choice in demanding that police officers, like the rest of us, follow the rules if they want to keep their jobs.

Will this strategy work? We will have to wait and see. But I am hopeful. Unenforced rules are ignored. Up to now, an officer who witnessed illegal conduct by a colleague had been placed in an impossible situation. He knew there was no realistic fear of punishment for lying, but a certitude of social recrimination for turning in a colleague. And potential abusers were also aware of this imbalance. Now the incentive structure has been reset. “If you’re a liar, you’re fired.”

I think most Chicago police officers will accept that following the rules is part of the job. The others should find another line of work. Maybe I am guilty of naivete in thinking that fear of loss of a job and pension can prevail over the code of silence we are told is so strong in police culture. Still I am encouraged by some crude, but apt, advice that Theodore Roosevelt once offered: “If you’ve got them by the balls, their hearts and minds will follow.”

A Wise Latina

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Democracy's Constitution / Heroes / The Supremes

Sonia Sotomayor has been a different kind of Supreme Court justice from the beginning.   At her confirmation hearing, instead of putting the Senate committee to sleep with platitudes, she told a male Senator that she thought a “wise Latina” might  have some valuable insights to offer in constitutional discussions. Then she ignored the  tradition for first term justices  to be  seen but not heard by  immediately joining in the colloquies  with counsel  during oral argument.

But, as Adam Liptak points out in this excellent article in  the New York Times, it was only  last term that  Sotomayor  showed how different a justice she could be.  In so doing, she may have started to change the way we talk about constitutional law.  I sure hope so.

Liptak discusses several Sotomayor dissents from last term, but rightfully gives special attention to her dissent in Utah v. Strieff.  Let me give you some background on the case before letting you judge Sotomayor’s  performance for yourself.  Strieff involved a fact situation that has divided the Court for a long time.  A police officer stops and searches a citizen without any reasonable suspicion of illegal conduct.  This is a clear violation of the Fourth Amendment.  But in the course of the illegal search, evidence of illegal conduct is found which the State attempts to introduce at trial.  The defense insists that it be excluded because it stems from an illegal stop and search.

In Streiff, the State argued the evidence discovered, illegal drugs, should be admitted because it was not the product  of the illegal stop; it came from  the officer’s decision after stopping Strieff to check if he had any warrants outstanding and finding there was an arrest warrant outstanding for a minor traffic violation.  Only  then did he arrest Strieff and search him, finding crack in one of his pockets.  The defense replied that this argument was pure sophistry because checking  for outstanding warrants is a routine part of the stop procedure.  To allow such tainted evidence will only invite police to illegally stop and search innocent people. many guilty of no more than having dark skin.

The Court ruled in a 5-3 decision for the State.  Justice Thomas wrote the majority opinion which pretty much tracked the prosecution theory.  Justices Kagan and Sotomayor  wrote dissents which  echoed each other on the law,  but differed dramatically in presentation.   Sotomayor better understands that the defense position may have  logic on its side, but fails on an emotional level because it calls for a guilty person evading punishment.   Also what’s so terrible about the inconvenience of  being stopped  by a police officer just trying to do his or her duty?   Sotomayor wants us to understand– to viscerally feel– that, especially for a minority, a police stop constitutes much more than an inconvenience.

Here is Part IV of her dissent.  It’s a little long for the internet, but I don’t think you will find it boring:

SOTOMAYOR, J. dissenting

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens. Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States, 517 U. S. 806, 813 (1996). That justification must provide specific reasons why the officer suspected you were breaking the law, Terry, 392 U. S., at 21, but it may factor in your ethnicity, United States v. Brignoni-Ponce, 422 U. S. 873, 886–887 (1975), where you live, Adams v. Williams, 407 U. S. 143, 147 (1972), what you were wearing, United States v. Sokolow, 490 U. S. 1, 4–5 (1989), and how you behaved, Illinois v. Wardlow, 528 U. S. 119, 124–125 (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford, 543 U. S. 146, 154–155 (2004); Heien v. North Carolina, 574 U. S. ___ (2014). The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, 501 U. S. 429, 438 (1991). Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry, 392 U. S., at 17. If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This Cite as: 579 U. S. ____ (2016) 1 This Cite as: 579 U. S. ____ (2016) 11 SOTOMAYOR, J., dissenting involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’” Id., at 17, n. 13. The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” Atwater v. Lago Vista, 532 U. S. 318, 323–324 (2001). At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___, ___–___ (2012) (slip op., at 2–3); Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 28). Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33–51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341–1357 (2016). And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future. A. Goffman, On the Run 196 (2014). This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this 12 UTAH v. STRIEFF SOTOMAYOR, J., dissenting manner. See M. Gottschalk, Caught 119–138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015). By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. * * * I dissent.

After reading this dissent, my reaction was quick and clear– “I hear you!” And it was Sotomayor’s  skillful use of language  that brought me  beyond logic to  feel the innocent minority suspect’s pain.  That’s a great thing about words; they allow  us to understand things we have not  experienced. In her wonderful memoir “My Beloved World” Sotomayor tells us that she learned as a prosecutor that you  need more than logic to win.  You need emotion.   Now she has employed that same wisdom in writing a judicial opinion.

I am sure some readers may  agree that Sotomayor’s  prose is persuasive, but still  fear that her dissent is not sufficiently “judicial.”   Aren’t judges supposed to be above the fray?  While this is a reasonable objection  I think that it ignores some basic facts about the Supreme Court and the role of dissenting opinions. The Supreme Court is not a court in the traditional sense of one judge doing justice in one case. Rather it looks to the future and decides by majority vote.   Any decision can be overruled by a later Supreme Court majority.  A dissent allows a justice to show  why the present majority is wrong.   Sotomayor’s  audience here is not just her colleagues; in a democracy it also includes  her fellow citizens.  Is there any good reason why she  should not  use all the lawyer’s  traditional  skills  in making the most persuasive argument possible?


Guilty Til Proven Innocent– and Even After!

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BurLAWcracy / Repairing the System

Amy Albritton learned the hard way that the American criminal justice system assumes that those charged with crime are guilty, at least until proven innocent, and sometimes even after. This article from the New York Times Magazine sets out Amy’s experience in detail. Amy, the divorced mother of two children, had a good job as the manager of an apartment complex in Monroe, Louisiana when she left with a new boyfriend on a get-away to the bright lights of Houston.

The nightmare began when her car was pulled over for changing lanes without signaling. The officer saw a “white crumb” on the floor of the car which he thought looked like crack cocaine. So he performed an on-the-spot drug test by placing the crumb in a vial of chemicals and noting the color change. He quickly determined it was cocaine and announced to Albritton, “You’re busted.”

This portable field test drug kit is commonly used by police all over the United States. Unfortunately, it is highly unreliable, routinely churning out large numbers of false positives, a fact the many arresting officers don’t know. Estimates are as high as one in three. That’s why the roadside tests are not admissible as evidence at trial in Texas or most other jurisdictions.

But they are good enough to be accepted as the basis for a guilty plea, and 99.5% of drug possession convictions in Houston are the products of plea bargains. Amy at first insisted on her innocence, but her court-appointed lawyer showed little interest. He advised Amy that her best course of action was to plead guilty to felony possession. The upside was that she would only spend a couple of weeks in jail instead of the two years she would serve if she went to trial and was convicted of felony possession. Albritton took the deal, served her term, and went back to Louisiana with a felony conviction on her record.

When she returned home she was immediately fired from her job for missing work; this resulted in also losing her apartment and her furniture. Then her newly acquired criminal record prevented her from finding another job as an apartment manager so she settled for a job as a clerk in convenience store.

Most jurisdictions never check whether the drug test that justifies accepting a drug possession plea is accurate. But, to its credit, Houston sends the evidence to a forensic lab to check whether it is really an illegal drug. When the lab tested the “white crumb” in Amy case, they found it was not cocaine or any other illegal drug. Most likely it was food debris. Amy had been wrongfully convicted

The lab emailed the District Attorney’s Office its conclusion, but nobody at the District Attorney’s Office remembers reading the email. Only when a reporter writing a story about drug convictions in Texas found to be based on inaccurate drug tests inquired if there were any such cases in Houston did the District Attorney contact the lab. The lab told them that there were 212 cases where the lab found the sample not to be an illegal substance, including Amy Albritton’s.

So long after her conviction, the District Attorney’s Office sent Amy Albritton a form letter informing her that she had been convicted on false evidence. Unfortunately, Amy never received the letter because it was sent to the address on Amy’s driver’s license when arrested, the apartment complex that had evicted her after the conviction. It was one of the authors of the New York Times story who read Amy’s file and tracked her down to give her the good news. Her immediate response was “I knew it. I told them.”

Amy’s experience is not unique to Houston. Nationally the situation is no better; probably it is even worse. The authors of the NYT article estimate that at least 100,000 people a year plead guilty to drug charges that rely on the same type portable drug test kit used in Albritton’s case. If one third of these tests are “false positives,” the American criminal legal system is inflicting injustice on a mass scale.

I don’t think that it’s sufficient to just feel sorry for the injustice caused Amy. We owe it to Amy and ourselves to understand how so many apparently innocent errors led to this sad result. Let’s review the facts. The officer who conducted the roadside drug test seemed to think it was state of the art science. The court-appointed attorney thought it cancelled out the value of Amy’s declaration of innocence, and the judge who accepted her plea never mentioned that Amy could move for a continuance until the “white crumb” had been tested in a professional lab.

It gets even weirder. The police lab that discovered the test was inaccurate in Amy’s case sent over 200 emails to the District Attorney’s office notifying them of convictions that were based on false evidence, but never checked up on what action had been taken. In turn, the Houston District Attorney’s office apparently does not read its emails, at least those that inform them they have convicted an innocent person. When finally notified of the injustice visited on Amy, the District Attorney sent her a form letter to an address it knew might be obsolete. That letter makes no apology to Amy for the mistake in Amy’s case or mention any action it will take to see that injustice rectified. It’s Amy’s problem what to do.

And yet Houston appears one of the more progressive jurisdictions in the country in criminal justice matters. What conclusion should we draw from this strange tale of incompetence? Here is what I fear has happened. A silent bureaucratic revolution has transformed the American criminal justice system. The system used to be run on a “rule of law“ model; the primary tool was the jury trial and the reigning assumption was that those accused of crime were innocent until proven guilty. Remember the old maxim “better that ten guilty persons escape than one innocent suffer.”

But our national embrace of the “war on crime” has slowly transformed the system. The rule of law model still operates in some cases, like those of hedge fund tycoons and police officers charged with shooting minority suspects, but in the vast majority of cases it has been replaced by a robotic burLAWcracy more interested in generating large numbers of convictions than getting the right result in each case. Now the primary tool for resolving cases is the “voluntary” guilty plea aided by high bail fees and the threat of draconian sentences for those who dare demand a trial. Innocent defendants like Amy feel they cannot afford to ask for a trial. Cases like Amy’s are seen as acceptable “collateral damage” in the larger war effort.

And the innocent victims are the most vulnerable; in Houston almost 60% of the “bad” guilty pleas for drug offenses involved African American defendants, although African Americans only make up a little over 20% of the population. Amy is white, but her car had an out-of-state license plate. I have to wonder if Texas plates might have protected her from being pulled over for changing lanes without signaling, and the ordeal that followed.

You might ask what happened to the old “better that ten guilty persons escape” philosophy. I think it’s been the victim of death by willful ignorance. Houston authorities must have known of the weakness of the portable drug test kit; otherwise they wouldn’t have sent results to a professional lab to be checked for accuracy. But no one spoke of the test’s weaknesses, read unwelcome emails, or checked up on whether errors discovered had been remedied. The system just kept rolling out more guilty pleas.

Some people will call burLAWcracy a modern innovation in pragmatic problem-solving. But I like the ring of the phrase “with liberty and justice for all.” The criminal justice system should work at least as hard at protecting the innocent as it does punishing the guilty.

“Fight BurLAWcracy!”

Let me know what you think.

My Favorite Villain

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Book/film List / Legal Fictions

Better Call Saul’s Jimmy McGill (Bob Odenkirk) has a lot of qualities I admire. Jimmy is smart, funny, and irreverent, both a friend to the underdog, and a plague on the pompous. What’s not to like?

Still I’m starting to have my doubts about Jimmy. Somehow I feel that he is headed for a bad end. Actually, it’s more than a feeling. Since, like many of us, I have watched Breaking Bad, I know that Jimmy later morphs in Saul Goodman, Walter’s White’s outlaw lawyer who uses his creativity and charm to help Walt spread deadly metamfetamines all around the Southwest, violating both ethical canons and criminal laws in the process. It’s evidence of showrunner Vince Gilligan’s genius that Better Call Saul shows Jimmy as more than an apprentice felon.

Instead Gilligan portrays Jimmy as a tragic hero– a good man eventually done in by the very gifts that make him special. In Season 2 of the series the self-destructive side of Jimmy’s personality starts to appear. Take the “bonus” incident from Episode 7. Earlier Jimmy’s legal career had been revived by a generous offer of employment from a law firm whose senior partner Cliff Main (Ed Begley, Jr.) admired Jimmy’s creativity.

But even though the firm gives Jimmy a generous signing bonus, a fancy car, and an expensive apartment, things quickly go awry. Unhappy with a television advertisement Jimmy airs without notice to the partners, the firm puts Jimmy on probation and assigns a junior associate to “babysit” him. Incensed by this disrespect Jimmy decides to resign, but then realizes that if he quits, he must pay back the bonus.

Jimmy nimbly changes course; he campaigns to be fired. He starts by wearing outlandish outfits to work, attire he knows will offend the partners’ sense of propriety. Then he stops flushing the community toilets as part of an alleged campaign to save water, knowing full well that a public discussion about restroom etiquette will embarrass his uptight colleagues. Finally, he buys a second hand bagpipe and starts using the firm’s offices as a rehearsal hall during working hours. This ploy is especially clever since it allows him not only to disrupt business, but also to parody senior partner Main’s own inexpert attempts to play the guitar.

Jimmy wins. Main fires him and Jimmy keeps the bonus. But since he doesn’t really care about money, Jimmy’s only victory is proving that he is indeed smarter and hipper than his conventional colleagues. But even this is a hollow victory because the intended targets of his ridicule don’t even get the joke. They just think he’s a jerk.

Of course, the “bonus” incident is small potatoes, but soon Jimmy goes further, actually doctoring a legal document in order to give his friend/lover/ partner Kim Wexler (Rhea Seehorn) a leg up in a competition for a client. This is clearly unethical and maybe criminal as well. Jimmy claims he only wants to help Kim secure a client she deserves. While Jimmy was protective of Kim, he also had other scores to settle. The firm competing with Kim happens to be one Jimmy feels had mistreated him in the past. And the victim of Jimmy’s ruse was Jimmy’s older brother, a partner in the firm who failed to support Jimmy in his dispute with the firm. It was about more than an injustice to Kim, it was also payback for past wrongs and an opportunity for Jimmy to prove (to himself) he’s the smartest guy in the room. We start to see Saul Goodman appear on the horizon.

In many ways, Jimmy is a good example of what I call in the book Guile is Good a “trickster lawyer.” The idea is that many talented lawyers resemble the Trickster of myth and fable who uses creativity and guile to best adversaries. I intend the trickster as a positive image for lawyers. The Trickster Brer Rabbit uses wit to escape becoming Brer Fox’s dinner. A trickster lawyer like Gerry Spence showed a similar creativity in crafting his masterful final argument in the Karen Silkwood case.

But sometimes Tricksters are too smart for their own good. They become so obsessed with showing their cleverness that they take self-destructive actions. One example might be doctoring a document that could easily end with the loss of your license to practice law. The legal imagination is a wondrous thing, but you have to know when and toward what ends you want to use it. Our final sighting of Saul Goodman on Breaking Bad finds him working behind the counter at a fast food outlet in Omaha, Nebraska wondering if the next customer will be a DEA agent or a mafia hit man. This is where his cleverness has led Walter White’s brilliant consigliere. And that’s also where Jimmy will end up.

Well-crafted fictions like Beter Call Saul inform as they entertain. There is no scarcity of lawyers in real life who are so delighted with their own deft moves that they have no awareness of how their behavior affects others, or even themselves. And most of them don‘t even have Jimmy McGill’s sense of humor.

Constitutional Law in 500 Words or Less

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The Sjupremes

Everyone knows that constitutional law is very important, but most people don’t understand why. I think the recent Texas case on abortion teaches us why it is so important– and so controversial.

Texas passed a law setting out new requirements for abortion clinics. Now clinics would have to employ a doctor with admitting privileges at a local hospital and buy additional expensive medical equipment. Texas claimed it was trying to make abortions safer, but abortion providers responded that the new requirements would in fact force most clinics to close. The number of clinics throughout Texas would drop from over 40 to 8 or 9.

A clinic sued in federal court, claiming that the requirements violated their patients’ “liberty” to choose an abortion under the Due Process Clause of the Fourteenth Amendment. The Supreme Court decided the case by applying a rule distilled from the constitutional text and prior court decisions—Did the new Texas law place an “undue burden” on the patients’ right to choose an abortion?

In answering this question, the Court looked at the goals Texas claimed the law would achieve and how well it achieved them as well as the obstacles it placed in the way of women seeking an abortion and how serious these obstacles were. Balancing these considerations a five member majority decided that the law was a “substantial obstacle” to the women’s right to obtain an abortion which in turn resulted in an “undue burden” on the protected liberty. The Court held the Texas law was unconstitutional.

The decision is controversial because the key terms in the Court’s opinion (“undue burden” and “serious obstacle”) themselves do not appear in the constitution. These vague phrases are the creations of the justices who also decide what they mean in a particular case. The majority could have just as easily determined that only laws creating an “overwhelming burden” on the woman’s choice violate the constitution. If they had, Texas would have prevailed.

No one can deny that, for all practical purposes, the justices decide what the constitution means. We are told this is “undemocratic” and in a sense it is. But the Constitution was passed in part to protect certain rights, like individual liberty, from democratic abuse. So, since the constitution cannot interpret itself, the Founding Fathers came up with a neat compromise. Supreme Court justices do not stand for election like presidents and senators, but they are appointed by presidents and confirmed by senators who are elected.

That is also why the election in November is so important. Different president, different justices. Different justices, different constitutional law. (429 words)

Irreversible Errors

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Repairing the System / Repairing The Systen

Thomas Thompson was executed by lethal injection eighteen years ago this month at the age of 43. After you read my post from a year ago I think you will agree that there is an excellent chance that Thompson never committed the crime that triggered his death.

My brother, Quin Denvir, was Thompson’s lawyer. Shortly before his death, Quin wrote Governor Brown asking that he end executions in California. I know that, as he wrote that letter, Quin was thinking very much about what had happened to Tom Thompson.

Brown was against the death penalty as a young man. Maybe it’s time he acts to foreclose irreversible errors in the future. You can contact him to tell him that you hope he will commute the sentences of those now on death row.

“Gimme Shelter”

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Repairing the System

A couple of months ago I happened to be walking through San Francisco’s skid row and noticed a beautiful old church. I decided to look inside. At first my eyes were drawn towards the altar, but then I noticed someone sleeping in one of the pews. As my eyes became accustomed to the darkness, I realized that almost the whole church was filled with sleeping bodies.I asked myself “Why are all these people sleeping in a church at 11 o’clock in the morning?” Slowly the answer dawned on me—because the church is locked at night.

This month activists are mounting a campaign in San Francisco to make the homeless more “visible.” My experience in that church not only made the homeless more visible, but also less abstract. They are people who have nowhere to lie down at night and nowhere to hang out during the day.

Here is an article that shows how San Francisco could actually solve the problem.

The Heart as Well as the Head

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Guile is Good! -- the Book (excerpts) / Heroes

“The brain may devise laws for the blood, but a hot temper leaps o’er a cold decree.” (Merchant of Venice,Act I Scene ii, ll. 18-19)

Shakespeare here voices a view of the relationship between reason, passion, and law that still rules our discussions today. Law and reason are partners; passion is their enemy. This image supports the idea of the lawyer as a “cool” technician creating sophisticated legal schemes much like a computer engineer spins out a new algorithm.

But I wish to propose a different image of law, one in which reason and passion are partners in law’s creation. Passion energizes reason which in turn educates and refines passion’s hot temper. The operative word is “synergy,” not opposition. That’s why I believe that the practice of law is most fulfilling for lawyers who feel they are using their skills to accomplish goals their hearts approve. And perhaps that is also why we often hear that highly paid lawyers in elite firms are not as happy in their work as one would expect.

I think this story from Brown v. Board of Education is a good example of the reason-passion partnership in action. Brown is now universally acclaimed as one of our greatest legal and political accomplishments as a nation. But it was anything but a done deal when the Supreme Court heard arguments in the case. One major problem facing Thurgood Marshall and his colleagues as they prepared their briefs was how to answer a question the Court had specifically requested the parties to address: Had the Congress that passed the Fourteenth Amendment intended to ban segregated schools?

It was a difficult question for Marshall and his team to answer because there was some circumstantial evidence that seemed to support the conclusion that the framers had no such intention. John Bingham was the primary author of the text of the Fourteenth Amendment. He also was the author of the original text of the Civil Rights Act of 1866 which outlawed “discrimination” as well as other practices. But when opponents of the Civil Rights Act charged that its “discrimination” language would apply to segregated schools already in existence, Bingham agreed to remove the “discrimination” language from the Act to assure its passage. If Congress, including Bingham, did not intend the Civil Rights Act to apply to segregated schools, why would we think they intended the Fourteenth Amendment’s Equal Protection clause to do so?

At first Marshall and his legal team could not think of a persuasive answer to that crucial question. But they refused to concede it. Marshall insisted that his colleagues find an answer that would reconcile an expansive reading of the Equal Protection Clause, which was necessary for victory in Brown, with Bingham’s concession that segregated schools did not violate the Civil Rights Act passed by the same Congress.

Here’s how one participant said the team saw their task:
“It was not that we were formulating lies; there was nothing as crude or naïve as that. But we were using facts, emphasizing facts, bearing down on facts in a way to do what Marshall said we had to do.” Suddenly, the answer appeared. (“It was like lightning breaking through.”) Bingham agreed to remove the “discrimination” language from the Civil Rights Act because the Fourteenth Amendment’s Equal Protection Clause made it unnecessary. One purpose of the Fourteenth Amendment was to authorize the Civil Rights Act, but another was to go beyond it to ban all state deprivations of equal protection.

Now Bingham’s concession did not undermine a broad reading of the Equal Protection Clause; it supported it. Upon reflection the team came to believe that this argument not only fit their purposes, but was also true.

Passion did not “leap o’er” reason in the Brown case, it directed reason towards a legal conclusion that that satisfied the heart as well as the head.

Note: I discuss Thurgood Marshall and his legal team’s performance in the Brown case at greater length in the book Guile is Good.

Woman Bites Dog!

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You know the well-worn story of the would-be reformer who comes to office only to discover that “real” reform is “unattainable”; the pragmatic decision in the “world of the possible” is learn to accept a half loaf or less. But here’s a new story. Kara Stein, a new appointee to the Securities and Exchange Commission (SEC) either never received the “world of the possible” memo, or has decided to disregard it.

This editorial from the NYT tells how three big banks recently pleaded guilty to felony charges arising out of their attempts to rig the world currency markets, but in reality came out unscathed because the fines imposed were insignificant to these titans of finance compared to the illegal profits they gleaned from their violation of the law. To make things worse, the SEC refused to impose any meaningful administrative disciplinary punishment. The only encouraging sign was that one commissioner wrote a “scathing” dissent.

That commissioner was Kara Stein. This article from Bloomberg gives us some more information about Commissioner Stein. It turns out that she helped write the Dodd-Frank legislation that was designed to prevent large corporations from engaging in anti-social activities like rigging currency markets. When “moderates” on the commission told Stein that the Dodd-Frank legislation did not give the SEC authority to rein in banks in cases like these, she politely told them that was not true. The SEC’s problem was not a lack of legal authority, but a weakness of political will.

Kara Stein is the type reformer we need today. She knows her stuff and is faithful to her principles. And to top it off, she’s not only a lawyer, but to my delight also a former law professor, a member the law professoriate, that under-utilized army of potential law reformers. Let’s hope that her scathing dissent is the first step on the road to future victories in the war to rein in corporate power.

Blind Justice

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Repairing the System

Social Science tell us that situational pressures, more than personal  ethics, drive our decisions. Remember  the volunteers in a Yale study who willingly “tortured” people when directed to do so by authority figures.

It seems that almost every day we read of some  corporate rip-off of unsuspecting  consumers.  If we have any hope of controlling these fraudulent practices  our laws must put  in place incentives  for corporations to encourage ethical  behavior and prevent illegal acts.  It’s all about setting the right reward-penalty structures for  corporate actors. The law’s goal should be to  encourage low-level employees  to disclose illegal acts  and   impose substantive punishments on those executives who fail to act when they are best situated to stop those acts.

The tricky part is when to use carrots and when to use sticks.  I think that “carrots” are the right tool for encouraging lower-level employees to report pressures  to engage in fraudulent behavior, but that criminal punishment, including jail time,  must become a realistic possibility if we hope to get the  attention of the responsible top level executives.

The story of Patricia Williams is a good example of the importance of legal protections encouraging  low-level employees to report pressures to engage in unethical practices.

Ms. Williams worked for the Wyndham  corporation, a Fortune 500 company that markets  times shares to consumers.  She discovered that many of her colleagues were making false statements to clients  in order to meet unrealistically high sales goals.  Williams  first alerted the corporation through approved channels, but that only provoked her supervisors to harass her. So she filed a whistle-blower suit and four years later a jury awarded her $20 million dollars in lost wages, compensation for psychological distress, and punitive damages.

This is all good news as far as it goes.  But it’s not clear how much, if any, Wyndham  has changed its sales practices.  That’s why I think we also need to bring a “stick” into play.  It appears that there was a three- level process at play at Wyndham.  The top officials set the sales goals; the intermediate supervisors told the sales personnel that, if necessary to meet the goals, they should employ a  TAFT strategy with clients–“Tell Them Any Fricking Thing.”  The sales personnel made the false claims.   To change this corporate culture, the law has  to target the guys at the top.  You can’t allow them to hide behind claims of ignorance.

Towards this goal, last year’s 8th Circuit opinion in U.S. v. DeCoster may be helpful. It holds that corporate officers can be held criminally liable if they fail in their supervisory responsibilites.

DeCoster involved the sale of contaminated eggs by a large company.  The officers convicted stipulated that, while they were not aware the eggs were contaminated,  they had authority to detect the contamination and  prevent the sale of the eggs. The District Court found  that lower level employees at the concern had “felt comfortable” ignoring USDA regulations, and might have felt some pressure to do so. Three month sentences  were ordered for the responsible executives.

Admittedly DeCoster is a departure from the traditional criminal law approach of only punishing people for acts they take with a “guilty mind.” Now a corporate officer can be imprisoned for negligently failing to  prevent actions  he or she may not have known of.

Still it seems to be a necessary extension  of criminal liability  if the law is going to effectively  deter fraudulent practices. For law to avert its gaze  as  officers use the corporate form  to immunize themselves from responsibility for  predatory practices they at least tolerate  undermines  confidence in the law’s capacity — or even willingness – to protect  average  Americans.

The old saying “Justice is Blind”  starts to take on a new and sinister meaning.