Affirmative Action for White Kids?

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Democracy's Constitution / Repairing The Systen / The Supremes

A recent lawsuit against Harvard College alleges that its admissions procedures covertly discriminate against Asian-American candidates.  This lawsuit has national importance because the admission procedures at Harvard are very much like those used at other elite schools.

Discovery in  the case has revealed that there is more than one path to admission to Harvard College. There is the official  procedure that looks at a whole raft of factors (including race) in  judging candidates in hope of obtaining a class made up of  excellent students, many from minority backgrounds.

But  another less publicized path gives special weight to whether the applicant is a relative of an alumnus—these applicants are called “legacy” candidates. A third road to acceptance  considers the applications of the sons and daughters of large donors to the college. One of these “donor” candidates was Jared Kushner, now famous as the son-in-law of President Trump. In deciding to admit Jared Harvard took into account  the fact that  his father had recently made a  2.5 million dollar gift to the college  And a fourth program is devoted to the admission of “recruited athletes” who are not  required to have the same academic qualifications as regular admits.

The shocking  news  is that almost one-third of the students admitted come from the  legacy, donor, or athlete tracks.  And since the beneficiaries of these programs are mostly white, these programs in fact operate as “anti-affirmative action” programs since they usurp  spots that might otherwise have been awarded to minority students under the normal admissions process. (If you are surprised to find that most of the athletes are white, remember that  Harvard sponsors a large array of intercollegiate sports, including  golf, ice hockey, rugby,  and sailing.)

The current litigation is limited to the narrow issue of whether Harvard’s  official   procedures discriminate against Asian-Americans.  It brings up  the truly difficult   issue of  whether and how Harvard should  consider  “race” as a factor in its admission procedure.

The plaintiffs argue that the use of  “race” inevitably invites bias when applied to individual cases.  For instance, plaintiffs have  shown that Asian-Americans have routinely been rated lower than whites on various “personal” factors.  They suggest omitting “race” completely and relying instead on hard socioeconomic data that would admit more students from less wealthy families.  They argue that this procedure actually  would yield more minority admissions than the present program.

Harvard  rejects these arguments arguing that there is no discrimination against Asian Americans, and pointing out that,  while the program proposed by plaintiffs might  admit more minorities overall, it would reduce African-American admits  from 16 to 10 percent of its entering class.

I do not mean to ignore the very important and very difficult issue of how, if at all,  schools should  consider race as a factor in admissions  and I  intend to  discuss it  in a future post. But  before facing  such a thorny issue, I think it makes sense that Harvard take some easy steps that would  improve its record on minority admissions  without any use of race.

I suggest that Harvard  eliminate all  admission preferences for alumni and donors.   Everyone senses that  something is very  wrong about  how elite colleges are choosing their students. The latest story about celebrity parents like Felicity Huffman bribing admission officers is the latest scandal, but what she did is not too different from the actions of  large donors like the Kushners, or from those of alumni who make large donations intended to help a relative.

I also suggest that Harvard end its special preferences  for recruited athletes;  let the athletic teams be made up of  students who  were chosen on the same academic standards as  their classmates.

I realize that neither of these suggestions  will be popular with alumni, who naturally like special treatment for their relatives and a football team that can beat Yale.  But elite schools’ today are too dependent on government subsidies to be considered “private” in any meaningful sense. They have to be answerable to the public.

That’s why it’s time  that  Harvard take action to make sure its student body is not chosen by wealth or status.   It  will only add to Harvard’s  prestige if it leads the way forward instead of defending practices that are no longer defensible.



#Things Could Be Better

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Book/film List / Democracy's Constitution / Repairing the System

 Laurentiu Ginghina  works as a mid-level official in a local government housing office in Vaslui, Romania.  But to me, Laurentiu is much more than a bureaucrat– he’s  a prophet who shows us a new way to see the world. He is also the subject of the  clever new documentary  Infinite Football .

Ginghina had played amateur soccer as a boy, but then a serious injury forced him to give up the game.  But rather than  damn his fate,  Ginghina decided to remake the game of  soccer. Therein lies the  lesson we should learn — don’t  docilely accept the present; look at it critically and, if possible, change it for the better. 

I call his attitude the #Things Could Be Better approach to life. And, although Ginghina’s  crusade is not one that excites me, I admire his decision to focus on a problem that is important to him and work towards a solution.  He has devised rules for a new form  of soccer (“Infinite Football”) that focuses on how fast the ball  travels  rather than how fast the players run.  He argues that this change will not only speed up the action for the spectator, but also enable older and injured  players  to continue to enjoy playing the game.

The  documentary makes clear that the odds are not good that Ginghina’s ideas are going to revolutionize  soccer in the near future.  That fact, however, does not stop him from quietly making his case, and patiently listening to objections that he then uses in improving the next version of his plan. 

Even if  Laurentiu  never revolutionizes professional soccer, his efforts will  have a positive effect.  Maybe some day he will be known as the man who invented a new form of  soccer –perhaps a “senior” soccer that opens up the game  to millions of older players who cannot play now.   Or maybe his ideas will inspire a computer game that makes him  a multi- millionaire.  If nothing else, he has  taken an active role in attempting to create  the future instead of docilely accepting fate.  That active engagement is a victory in itself. 

When not dreaming about his re-invention of  the game of soccer, Laurentiu  continues to faithfully perform his “day” job as a housing official.  The documentary shows him helping an elderly client who wanders into his office while he is talking to the documentary’s interviewer . Ginghina gives her his full attention as he counsels  her on how she might solve her problem.  Later we see him in conversation with his boss and again he shows himself a competent and loyal  employee. But when the interviewer suggests that they cut the interview short so he can get on with his work, Ginghina scoffs at  the idea. He performs his work duties conscientiously,  but he also insists that he is more than his job. 

Ginghina does not blind himself to the suffering in the world like the optimist, nor assume that the status quo is invincible like the pessimist.  Instead he has hope that things can be made better by clear thought and hard work. 

I contrast him with another of my heroes– Dashiel Hammett’s private detective Sam Spade who was made immortal by Humphrey Bogart in John Huston’s classic film The Maltese Falcon ( 1942). Spade inhabits a noir world of unyielding corruption. While he manages to  solve individual cases  in a way that preserves his  sense of honor, Spade is incapable of even imagining larger  reforms because he believes our sordid  world is  irredeemable.

Ginghina, on the other  hand, does not see the world as either inherently  benign or corrupt.   For him reality is fluid and malleable,  capable of becoming  better or worse –or just staying the same.  This hope permits him a psychological space that is denied Spade, the capacity to see an individual injustice as an opportunity to remedy a larger social problem.  Not just a handout to an individual pauper, but  a guaranteed minimum income for all citizens.   

The #Things Could Be Better mindset is reflected in texts  as different  as the First Amendment  and  The Endangered Species Act (ESA),  So next time you see someone marching to protest racism or  a bald eagle circling lazily in the sky,  give thanks that someone believed that #Things Could Be Better and acted to make them so.              




A Quiet Hero

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Heroes / Repairing the System

Dr. W. Melvin Brown is a Navy veteran who now practices medicine in his hometown, Charleston, South Carolina.  He is also an African-American, a fact that caused him to be a subject of controversy last month when some white friends urged him to apply for membership in the prestigious Charleston Rifle Club.

Brown was literally “black-balled.”  In the election meeting  members place either a white or a black marble in a box assigned to the proposed candidate;  six black balls  is a “no.”  When it turned out that Brown’s box contained 11 black marbles, he was tapped on the shoulder and asked to leave the meeting just as the successful 13 applicants, all white, moved forward for the induction ceremony.

To this point in the story, Brown is a victim, but not a hero. What I think makes him  a hero is his response to this racial insult.  Brown admits that his  immediate reaction was “huge disappointment”  and “not a little embarrassment.”   And I think we would all agree that he had every right to anger; a  public  denunciation of the club — and maybe a lawsuit– would seem an understandable response.

Instead, Brown has chosen to  stand  back to see how things  work out.  He is quietly supporting  his friends in the club who are trying to rectify the situation. “I would like to see the club fix itself.”  While commanding  whites in the Navy,  many from the South, Brown found that his efforts to show them  respect were usually reciprocated.

Demonstrations and litigation are, of course,  necessary to bring about structural change, but I think  Brown shows us that courtesy and patience also have a role to play,  especially in contexts  like a social club where personal relations are so central to the group’s success.

Brown also made a comment that keeps popping up in my mind: “The best way to fight racism is to meet people.”  Maybe that’s challenge we all should  think hard on in the new year.

So let’s hope that the members  of the Charleston Rifle Club listen to their better angels and ask Dr. Brown to join them.  But let’s also ask ourselves if we would not be better citizens– and happier people– if we followed Dr. Brown’s advice  to “meet” more people from backgrounds different than our own.

Happy New Year!


Constitutional Math

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Democracy's Constitution / The Sjupremes

ADDENDUM 12/11/18 — Several readers responded to this post by saying they thought it would be best if Chief Justice changed his votes, but didn’t speak publicly about his reason for doing so.  It appears that he is doing just that — aided by, of all people, Brett Kavanaugh.  See this NYT story.

In a recent post I called for Chief Justice John Roberts to act.  I felt that the politicization of the Supreme Court was destroying its legitimacy in the eyes of most Americans and that the Chief Justice should take action to “save the Supremes.”

And, lo and behold, Roberts has taken action, publicly criticizing President Trump  for referring to a federal  judge as an “Obama” judge. Roberts insists all judges are just “judges.” The problem, of course, is that Roberts is only right in a civics class sense; the Supreme Court is now inhabited by “Republican” and “Democratic” justices.

It all started when the Republican party started vetting potential judicial appointees on how they would vote on issues dear to the hearts of Republican voters.  Roberts himself would never have been appointed Chief Justice if  he hadn’t received the Federalist Society seal of approval as a “Republican” justice.  And, truth be told, he has seldom disappointed.

But now we need Roberts to  give a clear signal that he recognizes that,  if the Court starts handing down  decisions on  controversial issues with support only of “Republican” justices,  the public’s perception of the Court as being  above the  push and shove of partisan politics will quickly evaporate– and with it any positive verdict on the “Roberts” Court.

That’s why I suggest  that Roberts take a simple action that will change the judicial playing field. He should  announce that in the coming Supreme Court term he will not support any decision of the Court that does not receive the support of at least  six  justices.  Because there are only five “Republican” justices, this  would require the support of  at least one “Democratic”  justice to change the constitutional  status quo.  All decisions would have at least some  bi-partisan support.

One positive side effect would be that this would nurture more bi-partisan cooperation.  This might include some  movement towards the center.  That, of course, is at first glance alarming to leftist ideologues like myself, but maybe we have to come to accept the fact that in a nation where almost half the voters chose  Donald Trump  we cannot expect that the ACLU will always win.

That does not mean the Court cannot still be an agent of change.  Remember that  almost all landmark Supreme Court decisions (like Brown v. Board of  Education  and Roe v. Wade) have had strong support from justices appointed by presidents of both parties.  Good things can happen when justices are “just” judges and not political surrogates.

Would it be proper for Roberts to make such a commitment?  Certainly the text of the Constitution does not condemn it.  Art III, Section  1 only establishes  “one Supreme Court”.  It does not refer to the number of justices who will comprise the Court or how they should make their decisions.

Nor  would the Roberts action be “political” in any nefarious  sense. It is not  designed to further the policy goals of one party or the other. Instead it would help the Court retain the legitimacy it needs to perform its constitutional role as a “check and balance” on the other branches of of government.

It also would put the politicians on notice that the Court will not stand by and allow its legitimacy to be destroyed for a goal no more worthy than providing political parties one more issue upon which to divide the nation.

The Republican party has made Roe v. Wade an integral part of its campaign strategy for years (despite the fact that its majority opinion was authored  by a “Republican” justice); and now I read that Democrats feel that their vocal opposition to Brett Kavanaugh played a role in their recent success in congressional races.

The parties are not likely to save the Court.  Maybe it’s time for the Court to save itself.




Saving the Supremes

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Democracy's Constitution / The Supremes

I was recently complaining to a friend about the Republican party’s successful efforts to politicize the Supreme Court, efforts culminating in the confirmation of Brett Kavanaugh.  The “Federalist Five”– Thomas, Alito, Roberts, Gorsuch, and Kavanaugh– are expected to provide  a right wing majority for the foreseeable future.

My friend surprised me by noting  that my criticisms sounded like  “sour grapes;” he wondered if I would be equally outraged if the Democrats had been clever enough to ensure a left-liberal Supreme Court for the future.

While I admit that I would be less upset if the political“fix” resulted in decisions I favored, my concerns go deeper.  The machinations of Mitch McConnell and Co. alarm me because they have compromised the Court’s ability to play its essential role in  the constitutional  system of checks and balances that supports American democracy.

Let me explain. While each branch of the federal government –President, Congress, and Judiciary- can “check” the power of the other two—the source of that power differs for the Judiciary.  The authority of the President and Congress is political in nature; it comes from election by the voters.  With Supreme Court Justices, the constitution takes an entirely different tack; it insulates them from political influence by giving them life tenure.

This independence from political control gives the justices the space to impartially interpret the constitution and laws.  Their lack of political accountability is compensated for by two requirements: the need for a  written opinion after argument and support for the decision by a majority of the justices.

The Republican strategy undermines the independence necessary for the Court to do its job.  Does anyone think Brett Kavanaugh will ever be perceived as impartial after holing up in the White House during his confirmation hearings only to come out to express his inner-Donald in his combative testimony  to the Judiciary Committee? A Court which was designed to be above politics cannot be judged on partisan political standards and still maintain its legitimacy in the eyes of the people.   We are truly entering  a new era of American  constitutional history.

That’s why we need a new direction in the  process for for nominating  justices — presidents  should choose nominees who have NOT been vetted on norms of political loyalty.  Instead presidents should nominate  well-qualified lawyers without a track record that  predicts decisions in future cases.  We need exactly the type of justice the Federalist Society has railed against — judges like Blackmun and Souter who showed  a capacity to “evolve”  in their views as they became more knowledgeable about the issues presented and more aware of the Court’s role in our democracy.

But we also cannot ignore the fact that the conservative membership of the present Court has been constructed along partisan political lines.  When a Democrat is elected president, there will great pressure on him or her to appoint “Kavanaughs”  of the left. Therefore we need a sign that at least one member of the “Federalist Five” realizes that the Republican strategy has impaired the Court’s ability to do its job. It’s time for Chief Justice John Roberts to find the courage to “evolve,” signalling  in word and action his support for a Supreme Court not driven by partisan politics.

I know some readers will fear that the appointment of justices without a pre-approved agenda will lead to a “centrist” court which does not do enough to protect individual rights and political equality.  In one sense, this may be true.  But the Supreme Court was never designed to be a radical institution.  The Court’s constitutional role is to resolve disputes by reaching  decisions supported by a majority of  the justices who themselves have been chosen over time by presidents of different parties.  It should have members with different  political views if it claims to be the United States Supreme Court.

But then  the  decisions of the Court need not be just compromises between opposing political factions.  The greatest  weakness of  present discussions of the Court is that constitutional issues are discussed in partisan political terms.  But while most Democrats might favor abortion rights and most Republicans not, for judges the constitutionality of statutes forbidding abortion should not be a  “political” issue; instead it poses the issue of whether the Due Process Clause’s term “liberty”  assigns the decision to abort or not to the individual woman.

The Constitution does not think in terms of “Democrat” and “Republican” and neither should the Justices.

On the Road to Homeless

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Repairing the System / Untitled


The true power of  Evicted: Poverty and Profit in the American City, Matthew Desmond’s Pulitzer Prize winning study of poverty in Milwaukee, comes from the individual stories it tells.  Arleen’s story is a good example.

When we first meet Arleen (pseudonym) and her sons, Jori and Jafaris, they are moving into a new  apartment in Milwaukee’s inner city.  Arleen is busy  rearranging furniture and stacking  dishes next to her nice porcelain plates.  It’s a new beginning, but some old problems are about to re-enter her  life.

It starts  when her landlord, Shereena,  allows Arleen to be “light” on the rent one month so she can contribute to the expenses of her sister’s funeral.  All of Arleen’s family are poor, but they had decided they  would each contribute $350  to the funeral expenses.  Arleen knew she really couldn’t afford to contribute, but still refused to be “shamed” by not participating.  Shereena agreed that Arleen could pay back the  missing $350  in  small amounts each month, but when Arleen’s welfare check was reduced, she realized that paying the the rent and part of what she owed Shereena would leave  her completely broke.   So she  decided to pay only half  the rent, keeping the rest for expenses. It seemed preferable to owe more back rent than be unable to buy food.

Shereena promptly filed eviction papers.  At the eviction hearing the judge brokered a deal: Arleen would avoid a formal eviction (which would hurt her chances of finding a new apartment) by  vacating the apartment  before the end of the month.

Just before Arleen was scheduled to leave the apartment, she got what appeared to be a lucky break.  Shereena  had dropped by with the new tenant, a young woman named Crystal. Crystal asked Arleen where she and her sons were planning to move.  When Arleen replied that she didn’t know, Crystal offed to share the apartment with her until  they found a new place.  It turns out that such acts of generosity are not uncommon in the inner city; Crystal  herself had once stayed a month with a woman she met on the bus.

But a new problem quickly arose.  Crystal had become friends with Trisha, a young woman who occupied the apartment above hers.   One night she heard suspicious sounds; Trisha’s  boyfriend had come over and Crystal heard shouting and then a loud thump when the boyfriend threw Trisha to the floor.  Crystal decided she had to intervene, finally calling 911.  The police arrived and took the boyfriend away.

The next day Shereena was informed by the police that last night’s domestic dispute constituted a “nuisance activity” on her property; she had to file a proposed “abatement plan” for their approval or face a large fine and/or a year in jail.  The abatement plan Shereena chose was to evict Arleen and her sons.   It turns out that threatening abatement penalties is a common practice when a domestic dispute requires police intervention.  Usually the  single woman  beaten is evicted,  one good  reason why women are unwilling to call 911 when a  domestic dispute gets out of hand.  But here was a new refinement;  the eviction was imposed on Arleen and her children who had played no part in the dispute.

Arleen then started what turned out to be a long search for a new apartment.  She applied to eighty-nine landlords without success; most flatly turned her down; a couple orally agreed to rent to her, but later reneged.  She finally had  luck with number 90.  He was named Pana and agreed to rent her a one bedroom apartment for $525  a month.  (Her total income per month was $625.)  But Pana  made one condition very clear: “You need to pay your rent and not get in trouble.”

The  new “trouble” involved her older son Jori.  Jori was mostly an upbeat kid, very loyal to his mother. But he had from time to time showed signs of anger.  When a teacher at his new school (each eviction placed him in a different school zone) snapped at him, Jori  kicked the teacher in the shins and ran home. The teacher called the police who came to the apartment. Pana made Arleen an “offer”; if she vacated the apartment  in the next couple of days he would return her rent and security deposit. If not, he would evict her.  Arleen, Jori, and Jafaris left.

Arleen’s  luck did not improve..  Eventually she lost the children;  Jori went to live with his father and Child Protective Services placed Jafaris with Arleen’s sister. At first Arleen started to unravel (“I’m tired, but can’t sleep; I’m fitting to have a nervous breakdown.”)  But then she rallied and regained custody of her boys.  She took another apartment, this one without stove or refrigerator.  When we last see her, she voices the hope that someday “I can … look at my kids. And they be grown.   And they … become something. Something more than me.”

I guess you can say that Arleen and her family never reached the state of “homelessness”– unless you consider a stove and a refrigerator  necessary components of a home.

At the end of the book,  Desmond tells us some good news; there is an existing federal program that would solve Arleen’s housing problem; federal law makes poor families like Arleen’s eligible under Section  8 for a  housing voucher that will pay her full rent, but only cost her 30% of her monthly income.  If the rent is $525 dollars and her income $625  a month, the voucher would only cost her $188.  Desmond then tells us the bad news; as the number of poor families who are financially eligible for vouchers has grown,  funding has failed to increase to meet the need,   Now only one third of the  poor families eligible actually receive a voucher. Just imagine the uproar if only one third of the Americans who qualified for Social Security actually received their checks.

Arleen’s story persuades me that for many poor Americans the underlying problem is a simple inability to  pay the rent charged and have enough left to cover other basic needs like food and clothing.   Psychological and addiction problems also are involved, but perhaps as often the result as much as the cause of homelessness.

This is not the America we want to live in. What can we do?  A good first step is to  vote for candidates, presidential,senatorial, and congressional, who promise  to  make sure that every family that meets the eligibility requirements receives a housing voucher.





My Favorites

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This month marks the 4th Anniversary of   I have decided to celebrate this event by creating a new “page”  on  the blog–“My Favorites”. Its primary purpose is to provide new readers some sense of my interests and prejudices, but I hope long time readers might also enjoying taking a look.   Here are my personal favorite posts:

1.”What It Means to Think Like a Lawyer”  (1/04/2018)

2. “What It Takes to be a Good Lawyer” (10/15/2014)

3. “Constitutional Law in 500 Words or Less” (07/12/2016)

4.”Atticus Gets Real” (09/15/2015)

5.”To Err is Human”(02/20/2017)

6.”Using Law to Teach About Life” (09/08/2015)

7.”Deadly Dreams of Omnipotence” (11/09/2015)

8. “The Heart as well as the Head”(09 /29 /2015)



Contrition is Good for the Soul

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Guile is Not Always Good / Repairing the System

The cynical art of the “fauxpology” has entered the sacred precincts of the law.   Highly respected Judge Alex Kozinski of the prestigious Ninth Circuit Court of Appeals was accused late last year by several former female clerks and interns of improper behavior that included unwanted touching and fondling.  Kozinski at first denied the allegations, but soon resigned his judgeship and issued this “apology”:

“It grieves me to learn that I have caused any of my clerks to feel uncomfortable; this was never my intent. For this I sincerely apologize.”

Apologizing for causing  someone  to “ feel uncomfortable” when the behavior complained of is a physical sexual assault  qualifies as a good example of what is known as a “fauxpology”– a disingenuous statement in the form of an apology which implicitly  denies the improper behavior took place.

I think a comment  judge Kozinski made to a newspaper reporter when the scandal broke may better express his true state of  mind:  “If this is all they can dredge up after 35 years, I am not too worried.”  And while the conduct his clerks complained of was not as egregious as that charged against  Harvey Weinstein, there is an important parallel between the cases:  a federal judge has power to help or hurt the career prospects of his clerks very much comparable to that of a movie producer over  the careers of aspiring actresses.

The Ninth Circuit Judicial Council had a authority to hold a hearing on the allegations against the judge, but instead ruled that Kozinski’s resignation mooted the case before them.  You might call it a  judicial plea bargain;  Kozinski goes quietly and his colleagues minimize the damage to his reputation by  not making an explicit finding of wrongdoing.  The end result was that Kozinski leaves the bench with a 200,000 dollar a year pension and the ability to claim that the charges against him were never proven in court.

Now we find that Kozinski has begun to make a quiet “comeback.”   It started with writing an article for a legal journal, and included an interview on a public radio station. But these might  prove to be only the opening gambits.  Perhaps Judge Kozinski  (he retains the title)  will soon be appearing on academic panels or teaching courses at prestigious  law schools. Always known for his keen wit and intelligence,  I imagine Kozinski might well find many hospitable venues.

Now three of Kozinski’s accusers have written an op-ed to complain about this slow-motion rehabilitation.

His accusers object to the fact that Kozinski is being allowed to continue his legal career without either admitting his misdeeds or facing up to the charges in a judicial inquiry.  They believe this result disrespects his victims. I agree completely.

But I also think there are good reasons for Judge Kozinski to welcome a judicial determination of the truth or falsity of  the charges against him. Otherwise they will tar his reputation for he rest of his life –and after.  The Ninth Circuit’s silence also  diminishes the public’s respect for a prestigious court that has abnegated its duty to police the behavior of its members.

If the charges against Kozinski are false, it is in his interest and that of the legal system to have a judicial finding to that effect.  If they are true, it will be best for him to accept that judgment and make a sincere apology to the women he has harmed and the court system he has embarrassed.  Not only would this conclusion help restore public trust in the legal system, but Judge Kozinski might well find that a little honest contrition is good for the soul.






How a Court Stops Being Supreme

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Democracy's Constitution / The Sjupremes

The short answer is that the Supreme Court stops being  supreme when it allows a political party to dictate the substance of its judges’ decisions. Let me explain.

A good place to begin might be 1990  when George Bush Senior appointed David Souter to the Court. Souter, a New Hampshire Republican, had served as a New Hampshire  supreme court justice before being appointed. Although he had a long judicial record, Souter had ruled on few controversial federal constitutional issues. At the Senate hearings on his nomination, the Republicans portrayed him as conservative, but his own answers to questions were moderate in tone. Still he was easily confirmed.

At first Souter’s votes were  cast with the conservative wing of the court, but slowly he evolved to take a more moderate and sometimes liberal stance– even voting to uphold Roe v. Wade. The Republican party soon embraced a new slogan for future Supreme Court nominations—“No more Souters!”

That slogan quickly became a reality, at least for justices appointed by Republican presidents. Justices Thomas, Roberts, Alito, and Gorsuch have all proved themselves “safe” votes on the issues most dear to conservative Republican hearts — abortion, gay rights, affirmative action, campaign finance, and voting rights If we add one more “no more Souter” Republican to the Court there will be a “safe” five justice conservative majority on these key issues for the ascertainable future.

And that’s exactly what is happening. Justice Kennedy, the last moderate Republican, recently retired and President Trump has nominated ultra-conservative Brett Kavanaugh to replace him. Kavanaugh will most likely  be confirmed on a party  vote.

How did this happen? Jeffrey Toobin tells the story well in his book The Nine.  He begins in the early 1980’s with the formation at Yale Law School of a club for conservative law students who felt ostracized by the ultra- liberal ethos at the school. They called themselves the Federalist Society. Professor Robert Bork agreed to be their faculty adviser.

To my mind this was all to the good. The Federalist Society provided a valuable resource to students; they could discuss issues in a hospitable atmosphere and engage more effectively as a group in the campus culture. Soon affiliates were formed in other law schools and activities were coordinated. Conservative professors and judges were invited to speak, and an annual conference was staged. Slowly a national network of conservative law students, faculty, and judges formed where conservative legal ideas not only could be discussed, but the careers of conservative students, lawyers– and judges —advanced.

The Federalist Society became first a prominent voice in Republican judicial politics and eventually the dominant one. Thomas, Roberts, and Alito all had strong Federalist Society support. But a new and more sinister chapter in the story began  in 2016 when Republican candidate Donald Trump asked the Federalist Society to provide him a list of  ” acceptable” nominees for his first Supreme Court nomination if he were elected. Trump wanted to signal to conservatives that there would be “no more Souters” on his watch.

After extensive research the Federalist Society provided Trump a list of “safe” judicial candidates. One judge named was Neil Gorsuch. Later a successor list was compiled which included Brett Kavanaugh.

Is it a good thing or a bad thing to appoint a justice with the tacit understanding that he or she will vote a certain way on key  issues? From a political perspective, it sounds fine. The party gets the results it wants and the nominee gets the political support he or she needs.

But a constitutional perspective arrives at a different conclusion. Such a pact disrespects the  litigants whose case is decided before arguments are even heard. Judges should be autonomous actors free of political commitments. They certainly should not be spear carriers for a political movement.

I recognize that  Kavanaugh has not entered into an iron-clad contract to reverse Roe v. Wade; he could always change his mind. But I do think accepting a nomination that comes with a tacit assumption that you will not disappoint your political sponsors compromises a justice’s ability to take a fresh look at controversial issues. Can you imagine the uproar if Kavanaugh should pull a “Souter”?  So can Kavanaugh.

The big loser here in the long run will not be the Democratic party because they will quickly learn to ape the Republican strategy to ensure that Democratic nominees also follow a preferred party line. The loser will be the Court itself because its legitimacy is closely tied to the perception that it is above partisan politics. A court which is perceived as the agent of a political party is no longer in any meaningful sense “supreme.”

I think we will all soon regret that there are “no more Souters” on the Court. All justices of necessity come with political values, but we don’t want any with political agendas.


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The Sjupremes

Why did 81-year-old Justice Anthony Kennedy, known best for his decisions protecting gay and abortion  rights,  choose to retire at the time that best enables Donald Trump to appoint a right wing successor who will most likely vote to reverse those decisions?  Adam Liptak and Maggie Haberman  of the New York Times give us the answer.  Trump  “guiled” him.

Liiptak and Haberman outline a  “flattery” campaign aimed at convincing Kennedy his legacy would be honored.  A key pressure point was Justice Kennedy’s affection for his former clerks.   Trump’s first Supreme Court nomination was Neil Gorsuch, a former Kennedy clerk.   Kennedy himself was chosen to give Gorsuch the judicial oath at his swearing in, an occasion that permitted  Trump to lavishly praise Kennedy (“a great man of outstanding accomplishment”).

Then the White House announced two sitting federal judges were being considered  candidates for the next Supreme Court vacancy; they too had been Kennedy clerks.   And Trump also managed in his first year to appoint three other former Kennedy clerks to  federal appeals courts.

Trump also reminded Kennedy that they had a personal connection (“Say hello to your boy– a special guy”).   Kennedy’s son, Justin, had been Trump’s banker for many years.  When Kennedy later reciprocated the attention by inviting  Trump’s daughter Ivanka and her young daughter to be his personal guests at the Supreme Court,  Ivanka  tweeted  their gratitude for being able to see “our legal system firsthand.”

All the steps in Trump’s serenade of  Kennedy are  examples of  guile– clever, disingenuous ploys designed to accomplish an unannounced goal.   Liptak and Haberman are quick to point out that there is nothing unethical in their use.  I agree.  Flattery, even insincere flattery, is a  well-established  part of  social intercourse.

There is no shame in being the perpetrator of guile, but also no honor in being its willing victim.


Smart Law

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Book/film List / Repairing the System

Identifying a problem is usually easier than solving it. Take, for instance, the spate of police shootings of unarmed minority suspects like Michael Brown in Ferguson, Mo.

Proposed solutions seem to vary from mild responses like more racial sensitivity training for police officers to more punitive ones like heavy criminal sanctions that are never in fact imposed . UC Berkeley Law professor Franklin Zimring in his book When Police Kill suggests a more indirect, but potentially more effective, approach.

Zimring tells us that empirical research indicates this is a situation where the most effective remedies do not deal specifically with race. He suggests developing internal regulations which clearly limit the officer’s authority to use deadly force against a suspect of any race to situations where the shooting is necessary to protect the physical safety of the officer or a member of the public.  If the investigation of the shooting does not support the claim of necessity, the shooting is unauthorized.

Zimring also suggests instituting programs, not in racial sensitivity, but that train officers in techniques to “de-escalate” the tense interactions between police and suspects that often lead to unnecessary deaths of  suspects and officers of all races. The combination of limits of the officer’s discretion to use deadly force and  training to find a way to “slow down” the interaction between officer and suspect prevents the creation of a situation where an officer has to make a split second decision whether or not to shoot, a decision he or she may well later regret.

Zimring also has some good ideas on how we can nudge local police forces to face up to the fact too many unarmed civilians are being shot by  police officers. But for me the main takeaway is that, although the law sometimes teaches and often punishes, its primary goal is to change how people act.  There are smart and not-so-smart ways to do that.

“Neutral” Is No Longer An Option

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Book/film List / Legal Fictions / Repairing the System

When I first saw Jordan Peele’s  Get Out last year I thought it was a very funny movie.  But after  interviews with Peele, I realized that he also intended to make  a subtle, but  potent, commentary on race relations in America, one that blamed white liberals (like me)  for leaving African Americans on their own in fighting the war against racism.

The film shows what happens to a young African American male named Chris (Daniel Kaluuya) when he accompanies his European American girlfriend, Rose (Allison Williams), home to meet her family. The family is eager to meet Chris, but not as a prospective son-in-law. They see him as a potential addition to their crew of African American domestics/sex slaves  assembled over the years  to serve and service them. The nervous laughter begins when we see Chris slowly realize the future Rose and her family have planned for him and plots his escape.

Get Out reminds us of the uncomfortable psychological space in which African Americans are placed in polite American society;  in theory they are accepted as equals, but in fact often are not seen as such. Peele believes that most African Americans can identify with Chris’ predicament — how in meeting whites to distinguish between potential friends and well-disguised foes.

White Americans have a long history of being clueless about the social reality African Americans encounter. For a long time schools and the  media kept us  in a state of blissful ignorance about the devastating effect that centuries of  slavery, then near slavery under “Jim Crow” laws, and later discrimination have had on the lives of our African American compatriots. In movies, for instance, African Americans  were mostly portrayed as amusing comic characters or faithful retainers. Until the 1960’s  most white Americans knew little and thought less about the barriers African Americans faced in trying to live the American dream.

But this era of innocent ignorance was shattered by a civil rights demonstration in 1963 in Birmingham, Alabama. Network television brought into living rooms all over America images of Southern police using water cannons and police dogs to disrupt a peaceful march by African American grade school students.

At first, a new  more enlightened America appeared to be in reach. African American activists like Martin Luther King, with the support of white religious groups and left wing activists,  were able to put civil rights on the national political agenda. And then President Lyndon B. Johnson  made sure  that the Civil Rights Act of 1964 and Voting Rights Act of 1965 became the law of the land.

But it soon became clear that, while a great battle for racial justice had been won, the war for equal respect was far from over. Fifty years later that war continues. Anyone who  has even casually read the newspapers, watched cable news, or skimmed the web knows that racial progress has stalled and now threatens to recede. Peele rightly attributes this sad situation to white “neglect and inaction.”   Silence can be culpable.

Fortunately, African Americans have not given up the fight.  New  groups like Black Lives Matter  have called our attention to damning facts like the numerous  incidents where an unarmed African American suspect has been killed by a white police officer.  But polls tell us while about 83% of African Americans voice support for Black Lives Matter, that favorable view is shared by only 35% of whites.

Why do nearly two thirds of American whites not support Black Lives Matter?   I think the reason is that many whites who cannot not deny the facts that Black Lives Matter has publicized still  resent hearing the bad news from a black activist group.

This reaction might be irrational, but it’s  still very  human.  If white police officers misuse their power, that itself says nothing about white civilians. But in our culture where “race” is such a powerful and polarizing force,  whites may feel the charge implicitly includes them. Or they may feel  sympathy for the officer involved and his or her family.  But sympathy for a mistake  made under great pressure does not justify condoning a system that accepts  unjustified killings of unarmed citizens.   What about their families?

Peele says one reason he made the movie was to explode the myth that Obama’s election transformed America into a “post-racial society.” He’s clearly right. Whites should expect blacks to distrust them until they prove themselves trustworthy.  To ignore history and the distrust it has bred does no one a favor. Still it is in the best interests of both white liberals and African Americans to work as allies in creating a society where all races are treated fairly.  We have a lot of internal issues to work through if we hope to be successful. How to voice and  listen to criticism is one of those issues.

In the meantime, European Americans are going to have to spend less time nursing their hurt feelings and more time working on remedying the evils  critics like Black Lives Matter point out.  And they have the power to do so if they choose. Even now white participation in the fight is significant.  If we take support of  Black Lives Matter as a rough measure of support for the fight against racism,  white supporters   outnumber African American supporters by more than two to one.

The support of just one-third of white Americans is not  going to get the job done. But  if the percentage of whites supporting  the goal of  a  post-racist America  approached in any way the  83%  support of  African Americans, the war would soon be won.The simple truth is that whites created the “race” problem and without our contribution it can’t be defeated.

Martin Luther King set out the moral metric that should guide us: “We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly….”

There’s no longer  room for “neutrals” in this struggle. It’s time for liberal whites to show whose side we are on. A good starting point might be learning  more about Black Lives Matter.

The Next America

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Democracy's Constitution / Repairing the System

Please excuse my optimism, but I think we are so mesmerized by the political gong show  going on in Washington that we fail to notice a quiet democratic revolution taking place in American cities and states. Here are some examples.

One of America’s most serious problems is growing income inequality. The federal government has done little; the federal minimum wage is still $ 7.25 per hour. In contrast, San Francisco and Seattle have raised the local minimum wage to $15 per hour. One thing poor workers need is more money, and local governments are starting to see that they get it.

But just as  important as current pay checks is the question of whether kids in school today will get the education they need to earn a good living later.  New York City’s universal pre-k program  gives them a step up by providing all 4  year olds in public schools the early education that up to now only wealthy parents could buy their children. Psychologists tell us that the early years are when young minds most need intellectual stimulation; and economists report that early schooling results in higher wages later in life.

But it’s not just pre-k education. New York State’s public universities also provide full time local students a free college education.  The city of Memphis helps its  employees pay back their outstanding student loans.

Too often we are shocked by a news story about an unjustified shooting of a minority civilian by a police officer.  But now cities as different as Salt Lake City and Los Angeles are rewriting police manuals to encourage a “deescalation” in tense police/suspect  interactions so that they don’t end in fatal gun  fire.  This results in fewer police shooting suspects, but also fewer suspects shooting police.

Another national disgrace is how our antiquated criminal justce system punishes poor Americans for their poverty. For far too long innocent people accused of non-violent misdemeanors have served jail time because they not could afford to pay the bond required for their pre-trial release.  Others have pled  guilty to crimes they did not commit because otherwise incarceration awaiting trial would lose them their jobs. Now Atlanta and Philadelphia no longer require money bonds in non-violent misdemeanor cases. That’s not only more fair to poor defendants, but also to the taxpayers who would otherwise pay the bill for their unnecessary incarceration.

And let me end this short survey by pointing out that California, Hawaii, Maryland, Massachusetts, and New Jersey all ban the sale of the AR-15  semi-automatic rifle used in the recent Parkland  school shootings.

To me these reforms are evidence that a younger, more compassionate electorate is signaling that they want to live in a America that reflects their values.  I think they will get their wish. In a democracy the majority eventually prevails. And the statistics from the 2016 election show who will most likely comprise the majority in the future.

Here are six important voting groups who voted for Clinton over Trump by ten percent or more: women (C-52 T42), African-Americans (C-88 T-8), Hispanics (C-65 T-29), Asians (C-65 T 27), 18-29 year olds (C-55-T36), 30-44 year olds (C-51 T 41).    Trump’s strongest support came from whites  (T-58 C- 37),  45-64 year olds (T-52 C-44), and voters 65 and over (T-52 C 45.)

I don’t mean to suggest that success is inevitable. About 40% of our fellow citizens seem to have a radically different future in mind; and partisan gerrymandering and efforts to disenfranchise minority voters skew  election results to the right.

Still, two facts seem clear; in 2016 Trump and the Republicans depended heavily on white male voters over 45 years of age, a group that will have less electoral punch in each succeeding  election as Hispanics and Asians become a larger percentage of the population.   And Trump’s  actions since the election have further damaged the Republican “brand” in the eyes of many voters, but especially minorities and women.

The reforms I’ve  described point to the next America– a democracy that recognizes its responsibility to improve the lives of all its citizens. Of course, it’s not a done deal.  But in a contest between a party with a shrinking voter base nursing their resentments and  a growing one voicing its hopes, I like our chances.

China Has Big Plans for Your Future

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Democracy's Constitution / lawyers without borders

When I first visited China in the 1980’s, the tallest building in Shanghai was the fourteen story Peace Hotel; when I returned a few years later, there were over fifty skyscrapers over fifty stories. So China’s economic miracle is no  surprise to me.  But up till now, it has consisted mostly of  supplying low price goods to Western consumers at very competitive prices.  Now  China is planning to provide over a trillion dollars of  capital investment loans to poor nations  around the world.

Called the One Belt and One Road Initiative,  the plan  is extremely ambitious in both geographic reach and financial cost.  While the American Marshall plan after World War II was limited to Western Europe and provided  the equivalent $800 billion in developmental aid, The Chinese initiative will aid countries ranging from China’s western   border to Eastern Europe and down into the Indian subcontinent.  China has already provided $300 billion of infrastructure loans and plans to spend a trillion dollars more.  The Atlantic  gives a good  overview.

China’s motivation is not altruistic.  These are loans, not grants.  And it hopes to spur development in its Western provinces and also develop strong trade ties across Western Asia and Eastern Europe.  Like the the U.S. with the  Marshall plan, China  also has political goals.  It claims to be  only trying to create a “community of shared future for mankind” to replace the United States’ new  “America First” philosophy.   But one facet of  this future will be  acceptance of the  legitimacy of the the Chinese political and legal models.

And therein lies the problem.  The idea of promoting prosperity in poor countries is an excellent one, but not at the price of endorsing the Chinese Communist Party’s disdain for democratic government, human rights,  and the rule of law.  If you  have any doubts about the repressive nature of the Chinese political model, I suggest you look at this iconic photo (see above) of Chinese army tanks bearing down on a lone student demonstrating for democratic reform  in Tiananmen  Square in 1989.

Of course, 1989 was a long time ago, but the Chinese conception of law as order has showed is itself a constant.  In the 1980’s there was a lot of optimism that we could “export” the  ideal of the rule of law with its emphasis on individual rights and independent courts to countries like China.  Many American law schools established “sister school”  relationships with Chinese law faculties.  And the Chinese government even appeared to tolerate the emergence of human rights lawyers who represented clients in disputes with governmental authorities.  But even then there were clouds on the horizon; some of these lawyers had problems keeping their law licenses.

Then on July 9, 2015  the storm broke.  That was the day that the Chinese government started arresting  human rights lawyers and activists  all over China.  Since then over 200 lawyers have been  questioned, detained,  and often  imprisoned.  Those who admitted “guilt” were released with a warning. Those who refused were jailed and  tortured. Think for every lawyer arrested  how many other young lawyers have decided to stay away from human rights cases. Here is the story of one idealistic young lawyer who was arrested that fateful day and is still in prison two and one-half years later.

We should never forget that the Chinese  system is not limited to trade; it also includes a party-controlled dictatorship and a disdain for the rule of law, at least when applied to democratic and individual rights.  And just as  American political ideals  and goals were inextricably intertwined with the Marshall plan,  the Road and Belt initiative will have a dramatic impact on the political  landscapes of the countries participating.

But One Belt and One Road also constitutes a danger to citizens of Western democracies.  We sometimes  talk as if democracy, human rights, and the rule of law  were part of the natural structure of the universe, but that’s not true.  The American experience with these ideals  is only an experiment and the “human rights” aspect of it a rather recent experiment.   And, just as  after the American success in World War II, the ideological landscape shifted towards American political values, should China become the dominant world actor that same landscape will tilt in their direction.

And that’s when  the values of  liberal democracy would  gradually become  less the voice of the future and more a relic from the past.  In the abstract,  individual constitutional rights protected by an impartial judiciary seem self-evident, but in practice the concrete decisions  enforcing individual rights, like a woman’s right to choose an abortion, are often quite controversial.   We are reminded every day that large numbers of Americans would feel very comfortable with a populist majoritarianism immune from judicial scrutiny.  It wouldn’t take much to turn the tide in their favor.

If we want to live in a world — and a  nation–  where  humans rights are protected by independent lawyers and  impartial judges we must be prepared to fight for that goal.  One way is to promote an America that leads in a world-wide effort to end poverty and  spread the  growth of  liberal democratic institutions.   But right now we must start by informing ourselves about the dangers of  the  Chinese initiative.


What it Means to”Think Like a Lawyer”

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I have always been puzzled by the venerable phrase “thinking like a lawyer.” What does it mean and should we take it as a  compliment or a put-down?

I think the idea is  best captured by a metaphor trial lawyers sometimes  use to describe the craft of a colleague they especially admire or an adversary they fear — he or she can “see out the front.”  It means the ability to look over a complex legal situation and manage its resolution to your client’s advantage.  Everyone knows that a competent lawyer must  know  all the  facts and  the laws relevant to  his or her case.   But those are  just the preliminaries. The best  lawyers have the  ability to weave those  facts and laws into a powerful narrative that in the end wins the day.

In the book  Guile is Good,  I  illustrate this point by telling how trial lawyer Gerry Spence  framed his final argument to the jury in a famous lawsuit  brought against the  Kerr-McGee Corporation by the estate of Karen Silkwood.   Kerr-McGee was a huge corporation that made plutonium-radium fuel rods for nuclear reactors.  Spence’s complaint  claimed that Silkwood, an employee and  union rep at a Kerr-McGee plant, had been contaminated by nuclear active material while working at the plant.  She later was killed in a car crash on her way to an appointment with a reporter for the New York Times  to discuss worker contamination.  (You may have seen the award winning film Silkwood that tells her story.)

Spence’s final argument to the jury is a good example of a  lawyer “seeing out the front.”  Like a well-crafted play, it had four “acts.”  First, Spence described in concrete detail the negligence of Kerr-McGee in its meager  program of safety precautions; then he described the  heroic young  Silkwood’s  attempts to  to warn the trusting  workers of their danger. In the penultimate “act” he  showed how Kerr’-McGee had tried to blame Karen  for her exposure to radioactive poisoning.

And then there was the finale  where  Spence’s  urged the jury to use the power that law gives them to see that justice was done to the memory of this heroic young woman.  The jury responded by awarding the Silkwood estate five hundred thousand  dollars in compensatory damages and  five  million dollars in punitive damages.

Not only did  Spence write the script, he produced  and starred in  the play. We have to understand that winning  a big lawsuit is the product of a a thousand  strategic decisions, some small, some large, but all essential to victory.  Before he or she accepts the case, the lawyer must evaluate it to make sure it will produce a verdict that justifies the expense of going forward. He or she then must decide what evidence to introduce and what evidence to leave out.  Also what  improper  objections to make  to disrupt the defendant’s case and what proper ones to  omit in order to  persuade the jury that the lawyer is so confident they will do justice to his client that he or she has no time for petty legal bickering.

And  the lawyer also  needs the nerves of a card sharp  and the acumen of an accountant to decide on what settlement figure he or she will finally accept, knowing full well a five million punitive damages verdict is never going to be upheld on appeal. But to me , perhaps the the most amazing talent of all is the  self-confidence to  choose an unorthodox approach to trying a case,  knowing full well that you  will be roundly criticized should it fail.

I think it parochial to  think of that only lawyers “think” this way.   Spence uses his  talent  in a legal context, but I think he is just one example of  a larger group of people with the more general ability to make  intelligent decisions under conditions of great uncertainty.   Lyndon Johnson showed the same talent creating the  War on Poverty ,as did  Steve Jobs in the marketing of computers, Berry Gordy in the record business, and  Harvey Weinstein  in the film industry.

But that still  leaves the intriguing question of whether it is “good” to  “think like a lawyer”?  In one sense, such thinking is  clearly a form of human excellence, like  running fast or singing  beautifully.  But things get more complicated when we put the question from a societal  perspective. What’s good for the client may be bad for the society.  Spence  had the luck (or sense) to use his skills on what appears to have been the side of the angels.   But not all brilliant lawyers are fighting for the Karen Silkwoods of the world against the Kerr-McGees.  While many talented lawyers today are fighting to combat the causes of climate change, I am sure that many more are using their skills to defend the corporations that are helping to cause it.

And then there’s the question of whether this brilliance  makes the  lawyer a better and/or happier person.  Here we must face up to the  sad fact that great ability often  soon joins itself to great hubris, what one might call the “master of the universe” syndrome.  A great man (usually it is a man) persuades himself that conventional ethical limits no longer apply to him.  After all, it  was  the same decision-making prowess that    enabled  Harvey Weinstein to bring a  beautiful movie like The Crying Game  to the screen that also permitted him to conceal his terrorizing of  young actresses for  decades. And let us not forget Judge Kozinski.

Here as elsewhere we can learn a lot from fiction.    Francis Ford Coppola’s  The Godfather  trilogy shows us early on that  Michael Corleone is the brightest of the three brothers, but then we witness how in the end his  brilliance at outsmarting the world only earns him  loneliness and bitterness.

So if  you ask me whether it’s “good” to think like a lawyer, I have to distinguish between different meanings of the term “good.”   If we think of  intellectual ability as an abstract quality (like a sharp knife) it is clearly  “good.”  But once we consider the purposes we use that intellectual knife to accomplish or how its use affects our own sense of well-being, I am afraid that simple answers elude us.    

If you would like to know more about Gerry Spence’s  performance in the Silkwood trial  and tales of other  lawyer creativity,  here  is  a link to my book Guile is Good.

Not Garrison Keillor!

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Repairing The Systen

It’s easy enough to enjoy some righteous indignation when the Roy Moores of the world are accused of sexual harassment, but I have a different reaction when people I admire like Garrison Keillor, Louis C.K. and Al Franken are  the accused.   But in the final analysis, if  they have done the deeds they are accused of, they too must suffer  the consequences.

John Huston was one of the most important directors in  Hollywood in the 1940’s and 50’s.  He became friends with a well-known jockey for a time, but then somehow lost interest in his new friend.   When the jockey didn’t take the hint, Huston went out of his way to insult and humiliate him.  Eventually, some of Huston’s friends became so uncomfortable with his cruelty towards  someone who only  admired him that one  asked Huston why he acted in such an ugly manner.  Huston’s reply is one we should remember– “Because I can!”

The only way to end our epidemic of  predatory acts against women is to make it clear that they will be punished  no matter who is the perpetrator.  There can be no “good guy” exception.

Keillor is a special case in that he denies the allegations.  Even a rudimentary concept of fairness requires that he be allowed a forum to show his innocence.  And, even if he is guilty of the acts charged,  we do not have to stop admiring the work of  people like Keillor, C.K., and Franken, nor should it prevent us from wishing  them well in their new lives.













It’s the Little Things that Count

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Repairing the System

The New York Times  has good news to report.  It turns out that doing good works. Non-profits in inner city areas that have worked on mundane projects– e.g. planting trees, building playgrounds,  mentoring students, and finding employment for young males– have played a significant role in reducing the murder rates in American cities.

Here’s the whole story.


Time for Donald to Take a Big Fall

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Democracy's Constitution / Repairing the System

The title to Tim Wu’s op-ed in the NYT sounds the alarm– “How Twitter Killed the First Amendment.” .

Professor Wu  points out that there has been a dramatic change in how speech operates in American politics.  Formerly, the First Amendment worked to protect speakers from government prosecution, thereby creating a workable national political discourse. But now censors in Russia and China have invented new techniques geared to the internet age that permit them to “not only disseminate pro-government news,” but also “generate false stories and coordinate swarm attacks on critics of the government.”  Information is no longer a tool of  enlightenment, but has also become  a weapon “to confuse, blackmail, demoralize, subvert, and paralyze.”

Wu also points out  that  these techniques have been imported into our own political discourse, ironically by our own president. “The administration habitually crosses the line between  fact and propaganda.”  And Trump’s supporters are also skilled in using Facebook and Twitter to “manipulate American political debate.”

I applaud Professor Wu for warning us that the  Trump presidency constitutes a mortal danger to  American democracy.  He also helps us understand some of the  causes of this danger. There are lots of  them.  It started with the discovery by  psychologists  that  people are by nature much less rational than had been supposed.  Not only are we irrational but we are consistently irrational in ways that allow  clever opportunists  to manipulate what we believe.  We tend to believe falsehoods that make us feel good more readily than truths that don’t, and to  accept as true false propositions if they are frequently repeated.

Our psychological frailty has  allowed people like Rupert Murdoch and Roger Ailes  to create a  new decentralized  free speech marketplace where some newspapers,  television networks. and  internet sites  give their audiences  only information they already agree with mixed with  repeated accusations of the iniquity and stupidity of their opponents.  The information is different on Fox than on CNN, but the strategy is the same.

And now social media corporations like Twitter and Facebook have invented techniques that allow them to micro-target  selected audiences  at a speed that had been heretofore  impossible.  Trump  agents were able to  feed the unemployed construction workers in Michigan the “truth” they wanted them to hear about “rebuilding America” at the same time as they were painting Hillary Clinton as a modern Lady Macbeth to the liberal Republican women in Pennsylvania.   And neither audience  ever knew the identity  of the source they were relying  on.

Trump has also helped instigate the era of “fake news.”   The term has been used to describe two different propaganda techniques. One is  the  systematic  repetition of statements (e.g. “Obama was not born in the United States”) the speaker knows are untrue.  The second is even more toxic; it consists of a  constant volley of false statements  by authority figures  (e.g. the president of the United  States)  accusing main line news sources  like the New York Times  and  NBC of routinely lying to their audiences. The result has been the creation of a political discourse where the very idea of  “truth” is a contested concept.

It is clear that there are many areas where the new internet  techniques  must be regulated, but this promises to be a very long and contentious process. Right now we have a more immediate problem.  President Trump is using his constitutional powers to  sow distrust in the integrity of  our traditional procedures for  establishing political truth. The idea of  a First Amendment “marketplace of ideas” where opposing ideas compete in a  fair competition from which truth  emerges is central to our democracy.  The Trump presidency continually attempts to undermine that competition by accusing the traditional  umpires in this debate, like the Times and NBC, of intentional lies.  The longer he stays in office the more harm he does to the voters’ trust in the  democratic process. If  the legitimacy of our political discourse is going to survive, American  voters are going to have to decisively repudiate Donald Trump before he completely destroys trust in the system.

How will that repudiation come about?  The constitution provides a mechanism: impeachment. That will require the House to pass articles of impeachment–most likely charging Trump of colluding with the Russians to impact the 2016 election–and then having the  Senate  find Trump guilty as charged.   Actually I think Trump is guilty of the even greater constitutional crime of subverting the democratic process.  But whatever the infraction charged, it is not clear that impeachment will be successful because both houses of Congress  are now controlled by a Republican party  that seems  increasingly to fear Trump more than he fears them.

Should impeachment fail, it will be necessary that the voters overwhelmingly reject Trump  and the Republican party in 2020. This too will not be easily accomplished with  a polarized electorate fed false and confusing  information.  Trump  is still supported by 35-40% of voters as well as the leadership of the Republican party.   And that’s  a lot of voters in a polarized nation, especially when you add to them voters who don’t approve of  Trump but prefer him to an opponent whom Trump and his agents will  constantly demonize as they did Hillary in 2016.

Now all voters who reject Trump and Trumpism must confront the urgent issue of repudiating Trump. Lingering tensions between Clinton and Sanders supporters within the Democratic party must be neutralized and moderate Republicans and  Independents must join together  to repudiate Trump.  We all  lose if he wins.

If we hope to put our  fragile Humpty Dumpty of a democracy back together again,  it’s Donald Trump who  must take a great fall.



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Heroes / Legal Fictions

Michael Asimow  of  Stanford Law School shares with  us his review of the new film Marshall:

This enjoyable and inspiring movie is a worthy contribution to the courtroom movie genre.  You’re going to love it.

The movie memorializes the great Thurgood Marshall (who later won Brown v. Bd. of Education and sat on the Supreme Court). The film brings to life a forgotten rape case in Connecticut that Marshall tried early in his career when he was the solo staff lawyer at the NAACP.  The story focusses on the plight of a black man accused of raping a white woman and it highlights issues of racism and classism in the courtroom and on the streets.

The movie recalls the classic films “To Kill a Mockingbird” (which also involved a black on white rape case) and “Anatomy of a Murder.”   Like “Anatomy,” which also involved sexual issues, the trial consumes most of the movie.  What I really liked about “Marshall,” as well as “Anatomy of a Murder,” is that–as in real life–a trial is an attempt to reconstruct the past but we can never be sure of what actually happened.  The jury must select between conflicting narratives about the disputed events and we (like the jury) can never be certain of who is telling the truth. The lawyer’s job is to come up with a story that fits the facts and sell it to the jury.  As this blog emphasizes, guile is good and Marshall was definitely not lacking in guile.

The writing of this film is sharp and witty and the acting and direction are great.  Particularly strong is the emerging partnership and friendship of Marshall and the local lawyer, Sam Friedman. Marshall was not admitted in Connecticut and so he needed a local lawyer as co-counsel. Friedman is a Jewish lawyer specializing in insurance defense who had never tried a criminal case and thought he would just sit next to Marshall during the trial and and do nothing.  But the racist judge refuses to allow Marshall to participate in the trial and requirers the terrified Friedman to conduct the entire trial with Marshall serving as his adviser.  The way Friedman rises to the occasion is quite inspiring and recalls the great days of Black/Jewish collaboration in the civil rights movement.

Go see this film as soon as you can and tell your friends about it

Trump’s Constitution

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Democracy's Constitution / Repairing The Systen

In a year of shocking images, those from Charlottesville still  chill me the most. Certainly those of “alt-right”  marchers chanting “Jews will not replace us”, but even more so those of armed thugs attacking peaceful  #BlackLivesMatter demonstrators in full view of  quiescent police officers,   Eerily similar images from Germany in the 1930’s quickly come to  mind.

While there is still a controversy over whether the police were ordered to “stand down” by their superiors, they clearly  did not stand up to protect citizens exercising their constitutional rights from criminal violence. The right to speak out on controversial issues doesn’t mean much unless it is joined to a correlative right to police protection from violent reprisals by people who disagree with you.

We tend to think of “free speech” and “law and order” as contradictory concepts, but actually in practice they are a constitutional odd couple  who need each other if either is to survive. The  events at Charlottesville make  it immediately clear how free speech is dependent  on police protection. Alt-right participants threw rocks,  water, and even bottles of urine at the counter- demonstrators as the police stood by.  Experiences like that can only dampen the enthusiasm of future would-be demonstrators to speak out.

The dependence of the police on the vitality of free speech guaranties may be less obvious, but is  no less  present.  The First Amendment needs the police for protection, but the police have an equally necessary need for the democratic legitimacy that can only be provided by a system that  allows the citizens to voice their views on public issues– including police misconduct.  Otherwise “law and order”  is reduced to only “order” enforced by fear.

The growth of #BlackLivesMatter signals that large numbers of  minority citizens have lost faith in the police, a fact that can only diminish police effectiveness.   Events like those we saw take place in Charlottesville will now undermine the confidence  of millions of other Americans in the fairness  of the system.  Where does that leave our much heralded faith in the “rule of law”?

Of course,  President Trump was not  directly involved in the decisions made by the police in  Charlottesville last August, but I believe that his election and actions since then have created a social space where such practices  have become tolerated  if not condoned.   When the president uses the presence of demonstrators at a rally as an invitation to whip up the crowd to “get’em out of here,” his words become the constitution in action.  Tolerance of opposing opinions is no longer celebrated; it’s now seen as a sign of weakness.

So too the fact that President Trump’s recent imbroglio with NBC news will never reach a court does not deprive it of  constitutional impact.  NBC had reported the president wanted to multiply  our nuclear stockpile tenfold; he denies it.   This is a question of fact.  Of course, Trump  might have the facts right and the network might have them wrong,  but I don’t think many would bet on that proposition after listening to the president the last nine months.  I don’t even think he expects most observers to believe  him; he knows that “alternative facts” voiced by the President will have the power to comfort his supporters and raise doubts among  the uninterested and/or  undecided.

But the idea that that each side can have its own facts is antithetical to the values behind  our First Amendment  which  assumes that reasoned debate will allow the audience to distinguish between “truth”   and “falsity”‘.  If  uncomfortable facts can be dismissed as “fake news”, reasoned debate ends,  and with it democratic public discourse.

Some critics, like the author of this Washington Post article,  believe that Trump may be  too much a clown to be dangerous.   Unfortunately, that’s probably not true.   He may indeed be a  braggart  and a charlatan,  and perhaps also mentally unbalanced, but Donald Trump is also a genius of sorts. Not like Einstein, more like the creator of a very successful reality television  show who knows how the viewers’ mind works and how he can manipulate it to his advantage.   And in our entertainment-centered  culture, that means real power, power here magnified  exponentially by  the fact that  the speaker is the elected leader of the most powerful nation in the world.

And let’s not forget  that even an unsuccessful Trump might bring down the whole edifice of constitutional democracy with him.  Remember many thought Hitler a clown and he did ultimately fail, but not before he destroyed German democracy and caused the death of millions of innocent people.



Small Revolutionary Acts

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Heroes / Repairing the System

How does social reform happen?  History books tend to portray social reform as a tidal wave  that sweeps away an unjust and obsolete status quo, but I think reform is better understood as the  cumulative result of  individual acts of opposition to concrete injustices people encounter in their own lives. Only with hindsight can we  assess the importance of any one action. Even  an idle question posed  in a conversation between old friends might turn out to have been essential to success.

Jack B.Weinstein is a very experienced and highly respected Senior Judge in the federal distric tcourt in Brooklyn   He recently issued an unusual  “rule” for proceedings  in his courtroom. It states that junior members of litigation teams “are invited to argue motions they have helped prepare and to question witnesses with whom they have worked.”

The rule is Weinstein’s response to years of  watching  senior partners (usually male) pause during argument to confer with  a younger lawyer (often female) better informed on the issue in question.  Up to now Weinstein had taken informal steps to  encourage participation by younger lawyers, but it was a chance comment he made at lunch with a friend that led him to issue his rule.

His luncheon companion happened to be his former colleague Sara Scheindlin, recently retired from the Brooklyn federal disrict court.  As he sat down Weinstein greeted Scheindlin with the question he always asks when they meet– “What good are you doing in the world these days?”  I imagine the question was spoken in an ironic tone,  an inside joke between professionals who know well from experience how difficult it can be to “do good” in our complex legal  world.

But this time Judge Scheindlin gave a straight answer to Weistein’s question;  she replied  that she had just worked on a New York Bar Association report that had documented how few women lawyers  were  actually arguing in court cases that they had taken the major role in preparing. Since the report’s findings agreed with Weinstein’s own experience,  he asked what he could do to help.  Scheindlin  replied, “You could amend your individual rules”  And he did just that.

Of course, amending   the procedures in one court is a rather modest reform, but Scheindlin knew that Weinstein’s action might have effects well beyond his courtoom.   Weinstein is  a member of law’s aristocracy;  when he speaks, people listen– people like Alan Feuer  of the New York Times who wrote this interesting article on Weintein’s new rule. https:

Now self-appointed consciences of the profession like me will alert concerned citizens like you who may spread the alarm.  My prediction is that slowly large firms will be forced to change their ways. The best  job candidates will inquire about what steps firms are taking to give juniors courtroom experience, and  clients will also demand reform.  Large corporations like Hewlett-Packard, Oracle, and Facebook have already demanded that the firms who represent them field a diverse team of lawyers. Young male associates as well as female will benefit since it would be impolitic, if not illegal, to favor young women over young men.

If we take a larger historical perspective, we  can see  Scheindlin and Weinstein’s  lunch conversation as part of the history of the  women’s rights revolution. And a lot of people should get some credit,– whoever thought up the idea of the bar association report for one, but also Scheindlin and Weinstein,  Feuer, (and maybe even you and me). The  reform will have been  the result of  thousands or millions of  small  “revolutionary”  acts taken  over time that happened to change the future.

So the  next time you lunch with  colleagues why not ask them (in an ironic tone) “What good are you doing in the world these days ?”  You never know  what will happen next.

The Psychology of Equal Protection

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Repairing The Systen / The Supremes

A  brotherly difference of opinion about cake portions  presents the  same type of  issue that the Supreme Court will soon decide in an important  case. They both involve examples of inequity.

Nicholas Kristoff  reports  that scientists have found that monkeys  are very sensitive to   unequal treatment.  If you give one monkey  tastier food, the others resent it.   But Kristoff  also gives us a lot of examples of situations where humans protest  unequal treatment.  Whether it turns on preferential treatment for  first class air travelers or the sky-high salaries paid to corporate CEOs,  those left out resent it.

This Jared Bernstein article raises  the fairness issue of income inequality. He tells of a growing feeling that something should be done about the enormous wealth differentials between Americans.  The top 1 percent of Americans now own more wealth than the bottom 90 percent.  Bernstein also sketches out a  legislative  program that would decrease economic inequality in America.  A family allowance for children,  a government jobs program, and expansion of the earned income tax credit are all on his list.

In Wisconsin in 2012, there was a State Assembly election where  Republican candidates  were elected to a majority of the seats statewide even though the Democrats won a majority of the votes. They accomplished this remarkable feat by artfully drawing the election boundaries in a way that minimized the success of Democratic candidates.  The Seventh Circuit ruled that this  political gerrymander violated our constitutional provision against inequity, the Equal Protection Clause.

The Supreme Court recently agreed to hear the Wisconsin case and other alleged political  gerrymanders in  state and Congressional elections all over the country.  A decision is expected before the 2018 elections.  Of course, political gerrymanders have been used by the Democratic  party as well as the Republican in the past.  They are unfair no matter which party prevails, but in today’s America that party is almost always the Republican. And there is no doubt that the Republicans will use the political  power the gerrymander gives them to  defeat  the equality enhancing reforms Bernstein proposes.

Most people  dismiss the political gerrymander as too complex an issue to understand, much less care about.  That’s why I want to insist that the current Supreme Court case raises the same basic moral issue as the brothers’ dispute.   Have the portions been allocated fairly?  And like the cake argument — and that over  a family allowance for children- –  how that issue of fairness  is decided will  have a very concrete effect on the lives of very real people.

Here is a video of the monkey experiment.  It’s great.


True Grit

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Book/film List / Legal Fictions

If you had to choose a law partner from the characters in Better Call Saul, who would you choose? I’d pick Kim Wexler (Rhea Seehorn).  When you consider the alternatives it’s really an easy decision,  When he’s not busy playing sycophant,  Howard (Patrick Fabian) is a tyrant.   Chuck (Michael McKean) is paranoid, arrogant, and more than a little weird.  And then there’s charming Jimmy (Bob Odenkirk), the one  with a moral screw missing.

But Kim also  has many virtues in  her  own right.  From the first season she  has demonstrated intelligence,  hard work, and the ability to get along with others.   When we first met Kim she was an associate at Hamlin, Hamlin, and McGill, extremely grateful to the firm for financing her legal education.  She hoped to be a partner some day, but it became clear that managing partner Howard Hamlin did not think she had the “right stuff” to be a partner in his prestigious  firm.  Perhaps he felt that Kim’s reserve did not signal  the necessary “killer instinct.”  Kim didn’t complain; instead she showed self-confidence in not only striking out in solo practice, but also savvy in successfully attracting a big client.

But the virtue that most impresses me is  one Kim  has demonstrated in the last few episodes of Better Call Saul.   Let’s call it  “grit.” You will remember that Kim was able to wrest the valuable  Monte Vista bank business away  from her old firm,  only to discover that her friend, occasional  lover, and current office partner Jimmy McGill had engaged in  dubious  behavior in order to improve her chances of prevailing.

We know Kim well enough to realize she would find the fact that Jimmy had intervened on her behalf without her knowledge  deeply offensive, not  only because of the  impropriety involved,  but also because it  showed a lack of confidence in her ability to prevail on her own. I must confess that I thought that Kim might terminate  her relations with both Monte Vista and Jimmy  in order to separate herself from any possible scandal.

But Kim is made of sterner stuff;  she does not  retreat; she advances.   She first reminds herself  that she has done nothing illegal or unethical; she is not responsible for the actions of her office mate.  But she does have a duty to disclose the situation to her client  and warn them of the public relations  problems that could arise.   She does just that, adding that she would understand if they decided to retain new counsel.  They tell her  they want to stick with her.

Then she had to decide what role she should play, if any, in the disbarment proceedings brought against  Jimmy by the victim, his older brother Chuck.  Kim not only decides  not to abandon her friend, but actually volunteers to  serve as his co-counsel in the disbarment  proceedings.

There is both a heroic and a pragmatic dimension to this decision.  It’s heroic because she is coming to the aid of a friend in need,  even though this  will tie her more closely  to his misdeeds in the court of public opinion.  But since the repercussions of Jimmy being disbarred will impact  her career as well as his, it  makes good sense for her to make sure  that he has good representation.

I think here she has made  an admirable distinction between the roles of judge  and advocate. It would be improper for her to decide whether Jimmy violated ethical rules or not, but she does have a  right to make sure he puts on the best possible defense.

I won’t spoil your pleasure in watching the ethics hearing itself (Season 3, episode  5 “Chicanery” ) by revealing all that  transpires,  other than to note that  the unorthodox but extremely persuasive case   Jimmy  and Kim present limits the discipline imposed to a year’s suspension of Jimmy’s law license. So  Kim comes out a winner, not only as an advocate, but as a friend, and also helps avoid a scandal that would probably lose her a valued  client.

Of course,  Better Call Saul is at heart a soap opera.   As we begin to see in  the latest episode (Episode 6 “Off-Brand”), Kim’s friendship  with the irrepressible and irresponsible Jimmy McGill will continue to cause her problems.  Jimmy’s cynical and amoral alter ego Saul Goodman makes his first appearance.

Future events are sure to test Kim’s relationship with Jimmy. But I am confident she  will show the same poise and good judgment she has exhibited up to now. Kim’s evolution from compliant associate to confident  professional  teaches  us that practicing law is more than an intellectual exercise;  it’s also a test of character.

I would say the moral of the story of Kim’s transformation is that while you always have to stand up for your client, and sometimes  you choose to stand up for a friend, you should  never forget to stand up for yourself.





Creating the Future

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Heroes / Repairing The Systen

James Lorenz died  earlier this year. In the late 1960s  Lorenz  showed  himself to be one of the most important  social entrepreneurs of the second half of the Twentieth Century.  A 26 year old associate in a Los Angeles corporate firm, Lorenz not  only dreamed up the idea of  a network of local legal services  offices placed all over rural California  to serve its farmworkers, but also attracted  the political support necessary to get his proposal  funded, and then supervised the placement of its offices and the hiring of its staff.  The result was California Rural Legal Services (CRLA), what many believed  to be the premier legal services program in the United States.

I decided to attend Lorenz’s  memorial service, not only to honor  a former colleague, but also to see what I could find out about the back story behind  Lorenz’s  success.  I wasn’t disappointed.  Much of the service understandably consisted of memories of Lorenz’s glory days as a golden boy on the playing fields and seminar rooms of the elite Phillips Academy, and later at Harvard College and Harvard Law School.  But two speakers helped me understand how this young lawyer from a privileged background demonstrated  not only the creativity to come up with the idea of CRLA, but  also the political and  organizational skills to make it a success.

The first bit of information came from a friend of Jim’s who had done a little research to help in writing Jim’s  obituary.  My ears perked up when he mentioned that  Lorenz wrote his senior thesis at Harvard College on the creation  of the Tennessee Valley Authority (TVA).  The TVA was one of the  New Deal’s  most innovative and successful programs,  It brought  electricity to  Appalachia,  but  Lorenz’s  thesis emphasized how  one of TVA’s Directors, a  young  Harvard Law School alumnus named James Lilienthal, believed that the TVA’s  real mission was  not  electrical power, but the jobs  and political power it would provide the impoverished citizens of Appalachia.

After graduation from Harvard Law Lorenz took what seemed a very traditional career path, accepting an associate position at the prestigious Los Angeles law firm of O’Melveny & Myers. Like many young associates,  Lorenz  signed up to do pro bono work; the group he volunteered for provided free legal assistance to farmworkers.  Soon Lorenz got a call from an individual asking for his help, but he had to refuse because he was too busy with firm work.  A little later  Lorenz got another call, and again had to beg  off because of firm  commitments.

That’s when I imagine the  “Eureka!” moment occurring.  Lorenz saw that what farm workers  in California needed was not a list of one-shot volunteer lawyers,  but a law firm that could provide them the broad array of legal services that O’Melveny & Myers  provided its corporate  clients.  And he also realized  his  vocation was to create such a firm.

Another talk by retired California Supreme Court Justice Cruz Reynoso  showed the   savvy and determination that Lorenz brought to the task of making his dream a reality. Reynoso  recalled his first meeting with Lorenz.  It was in Washington D.C where Reynoso had recently moved to  take a position  at the Equal Employment  Opportunity Commission (EEOC).  But Lorenz knew Reynoso as one of the premier Mexican-American lawyers in California, a man who  had earlier established a successful practice in the small rural  town of El Centro, California.  So Lorenz flew in from California, even wheedling an invitation to stay in the  Reynoso  family home in order to improve his chances of  persuading  Reynoso to join the  CRLA Board of Directors.  Cruz Reynoso  later succeeded Lorenz as CRLA’s  Executive Director.

CRLA has won a lot of victories on behalf of farmworkers; a ban on the use of DDT in fields,   the end of  discriminatory placement of Spanish-speaking children in Special Education classes, and a  ban of the use of the notorious “short-handled” hoe in the fields are three  of many possible examples. Perhaps its success  is most eloquently witnessed by the enemies it made. Governor Ronald Reagan made a concerted effort to de-fund  CRLA  for alleged unlawful activities, charges that were later unanimously rejected  by a  panel of  state supreme court justices.

Legal Services for the Poor nationwide has been fighting a rear-guard action against reduced financial support and crippling restrictions for the last 45 years.  The fact that his creation, CRLA,  has continued to flourish in this hostile environment (serving over 40,000 clients every year) is strong evidence that Lorenz had  not only the right idea, but  but also built a organization that had staying power when times got tough.

But I hope we do more than celebrate Lorenz.  We should also  emulate him.  Too often people think of lawyers as rear view-oriented– focused only  on resolving past disputes. The story of Jim Lorenz reminds us that lawyers can also help create the future.

Fake Justice

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Repairing the System

Donald  Trump has ushered in the era of “fake news.” The only question is whether we should view Trump himself as  its creator  or its victim.  Now we see a parallel problem with Trump’s Attorney General Jeff Sessions– Is Sessions the enemy of “fake evidence” or its champion?  This NYT article by Jim Dwyer suggests he is its champion.

By “fake evidence” I mean prosecution testimony that purports to be backed by scientific expertise, but in fact is  junk science. “Bite mark ” evidence is one example. Dwyer points out that twenty-one defendants nation-wide have been  convicted on the basis of  testimony by “experts” that their tooth impressions matched those found at a crime scene, only to later have the conviction overturned  when DNA proved the defendant innocent.  There is also “hair sample” analysis. A FBI study found  that the expert testimony on hair matches in their sample was false in 96% of the cases.  Ninety-six percent!!

And other formerly well-respected types  of forensic evidence, like handwriting identification and  tire tread matching, have also come under suspicion The Justice Department had until recently been working with nonpartisan  groups to improve the quality of “expert” testimony on forensic science. They seemed to be making good progress until President Trump named Jeff Sessions as his Attorney General. Sessions promptly disbanded the nonpartisan National Commission of Forensic Science and suspended an ongoing internal Justice Department review of the use (and misuse) of forensic science in closed cases.

The key issue here seems to be who should decide what constitutes good science in the use of forensic evidence– the scientists or the police and prosecutors?  Sessions, a former prosecutor,  has made clear where his loyalties lie. When  a Senator,  his reaction to a scathing report by the National Academy of Sciences (NAS) on the misuse of forensic evidence was disquieting: “I don’t think we should suggest that those proven scientific principles we have been using for decades are somehow uncertain.” But the NAS report had concluded that the hallowed “principles” Sessions  was defending were in fact mostly junk science.

I  link this issue to a larger malaise that I think has infected our justice system.  Even though we mouth the principle that every defendant is innocent until proven guilty, the reality is a conviction-driven system where the presumption of guilt attaches as soon as the  police  convince themselves they have the “bad guy” in custody.  From that point on, the system uses  a variety of techniques to get a conviction– denial of bail, over-charging to induce a plea to a lesser offense,  aggressive interrogations aimed at confessions, and questionable  eye witness identifications  are all available tools.  And now we find “fake evidence” also allows prosecutors to put  a sophisticated veneer on  what may be little more than a policeman’s  “hunch.”

We can talk about systemic reforms all we want, but I have come to think that the problem goes beyond  shoddy procedures;  the  deeper  problem  may be that police and  prosecutors  feel they are infallible in identifying  guilty defendants.

In a recent post I told the story of the Norfolk Four, four sailors who made coerced confessions to a rape and murder DNA later showed they did not commit.  The police started with one defendant who confessed after 9 hours of aggressive  interrogation, but later DNA testing showed him innocent of the rape.  So the police decided, not that he was innocent, but that he must have had an accomplice.  A second sailor was arrested and he too eventually confessed, but his DNA also proved him  innocent. The police reacted by arresting another “accomplice.”  And so the story continues.  What shocked me most about the case was that, even though the Norfolk Four were all  finally released from prison, no official– police officer, prosecutor, trial or appellate judge–  ever admitted that an error had been made. Police and prosecutors have to own up to the reality that they are not infallible.

Of course, it’s somewhat presumptuous to believe that intelligent police and prosecutors are not aware of  the human propensity to make mistaken judgments. This realization, however, suggests a more sinister  explanation for prosecutor use of  unreliable evidence to convict defendants of crime– one that emphasizes  the similarity between “fake evidence” and “fake news.”  Maybe it’s not a question of a misguided  prosecution confidence that they are using shaky evidence to convict defendants they feel are guilty, but a callous lack of concern about convicting the innocent so long as someone is held responsible for the crime.  Better that we punish the guilty than the innocent, but even more important that someone be found guilty so the system will appear to be doing its job.

It just might be that the era of “fake justice”  has begun.


Never Reward a Bully

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The Sjupremes

Constitutional law expert Cass Sunstein has just given the Democratic Senators some advice on how to handle the Gorsuch vote.

Sunstein  outlines five options before choosing the  one that suggests they  vote against any nominee who they feel puts in jeopardy basic constitutional protections, a description he believes   Gorsuch warrants; but that they shouldn’t go so far as to filibuster his confirmation if he has the support of a majority of the Senate.

I myself  would prefer Sunstein’s  option 3; it holds they should not only vote against Gorsuch  but , if necessary, also filibuster to prevent  his confirmation. Sunstein thinks this stance has its strengths, but finally rejects it as imprudent because  it would further encourage the public perception that  the Supreme Court is a  political rather than a legal institution.

Sunstein  agrees that “it is perfectly appropriate for senators to oppose nominees on the ground that they disapprove of their likely judgments, above all if those judgments would be destructive to liberty and equality.” He even admits that this position “is refreshingly candid.” But he rejects it because  “it acknowledges that confirmation wars are here to stay, which would be pretty terrible news.”

I too shudder when I hear  Supreme Court justices routinely described as “Republican appointees” or “Democratic  appointees.” But I think the way to end this  embarrassment is to render these terms  less relevant in describing the opinions of the individual justices.  We need a tacit truce between the parties that provides that Democratic presidents will appoint Democratic moderates to the Court and Republican presidents moderate Republicans. The goal should be a Supreme Court of centrists their opponents think they  can live with.  Caving in to Mitch McConnell’s “take no prisoners” approach last year is not the way to achieve a centrist court.

Here’s why I part ways with Professor Sunstein.  I don’t think that rewarding a bully is ever a  good negotiation tactic ; and Senate Majority Leader Mitch McConnell has shown himself to be  just that.  When President Obama attempted to cool down the nomination wars by choosing the highly respected Democratic centrist judge Merrick Garland as his nominee, McConnell  refused to hold hearings on the Garland nomination, urging Republican colleagues not to even meet with him.

Yet now the Republicans choose Neil Gorsuch to serve in  Garland’s place. Neil Gorsuch is much like other recent Republican nominees– impeccable academic background, soft-spoken, and adept at giving non-responsive answers to questions that would reveal his views on key constitutional issues.   But we know from his opinions and speeches that his confirmation would only tighten the Federalist Society’s grip on the Court.

What will happen if the Democrats accept Gorsuch’s ascension to the Court without a full out fight? Sunstein  appears to think that a statesman-like surrender  will end the political polarization of the confirmation process, but I think it will only encourage the Republicans like McConnell to be even more aggressive in the future. Why change what has proved a winning strategy?

The way to change the public’s perception of the Court as a hyper-political institution is to appoint justices who are not perceived as hyper-political.  And that will only come about when  Democratic presidents nominate centrist Democrats and Republican presidents nominate centrist Republicans. And the first step necessary to bringing about this new truce is not rewarding McConnell for his hyper-partisanship.

Some may fear that appointing moderates  will rob the Court of  input  from justices who are willing to push the constitutional envelope.   But I think study of the Court’s history shows this to be a false fear.  No one expected former Republican District Attorney Earl Warren to lead a constitutional   revolution in the due process  protections afforded criminal defendants. But Warren did exactly that.  And no one ever expected Roman Catholic Reagan counselor Anthony Kennedy to cast the deciding vote in the gay rights case. But he did.

When you give a judge life tenure you must recognize that  he or she  may “evolve'” to embrace positions we– and even  he or she– never foresaw. This intellectual fluidity is good for the Court.  Ensure that  they start in the mainstream and let time, the responsibilities of the job, and the quirks of  human nature give us all the constitutional flexibility  we need.

Shameless Self-Promotion

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Heroes / Repairing the System

Back in 1969 I worked  in a legal services office in the Imperial Valley  on the California-Mexican Border.   Most of our clients were Mexican-Americans who had the usual poor people legal problems–rent arrears,  welfare, and  consumer debt. For instance, I  found  I had a large number of clients who were being dunned for unpaid bills at the County Hospital.

Since my employer,  California Rural Legal Assistance (CRLA),  believed that we should not only represent individual clients, but also impact the larger problems that affected the poor,  I started  thinking about how we might improve  access to medical services  in the county. Most of our clients could not  afford doctors and had to go to Mexico for treatment.  And those who went to the County Hospital  ended up with large debts.

I discussed the problem with my bosses in San Francisco, but at first no  solution came to mind.  Then one of my supervisors called to tell me I might look into new grants that HEW was awarding for medical clinics  for migrant farmworkers.  That sounded promising, so I contacted HEW  and was told that  the first step was to find a neighborhood organization that could apply for  the grant.

I immediately thought of  Casa de Amistad, a community group in Brawley that had  good rapport with the farmworker  community.  Once Casa de Amistad agreed to sponsor the clinic, a year of great excitement and suspense began. We had many small victories and almost fatal defeats before  HEW finally  approved a  grant  of about 400,000 dollars, only to see the local medical society file a lawsuit in federal court to block the grant.

Finally we were victorious in that suit and the Clinica de Salud opened its office in Brawley, California with four doctors.  It was the first federally funded migrant health  clinic in the United States.  And while  only a drop in the bucket of the unmet need, it was the most satisfying accomplishment of my short career as a practicing lawyer.

Fast forward forty-five years.   I am  returning  to the Imperial Valley to witness the enrobing ceremony for a new Superior Court judge.  His name is  Marco Nunez, and the courthouse overflows  with people of all ages celebrating the success of this local boy who everyone seems to admire and love. It is a special occasion for me too since Marco is  a graduate of the University of San Francisco School of Law  where I  taught  for many years, and also because his mother, Mary Ellen Nunez,  was one of my favorite co-workers at CRLA so many years before.

I decided to  also use our visit to the Valley to show “la clinica”  to my wife Miriam who has patiently listened to  the story of its birth  many times.   But I wasn’t sure I could find the clinic  on my own  so I googled its website  to get directions, and  learned a  lot I didn’t  know.

“La  clinica” has morphed into “las clinicas”– it   now  operates twelve medical clinics all over Imperial County, as well as  three dental centers, and three women, infant and child nutritional centers. It employs 340 people and  has annual revenues of 34 million dollars a year. And it  not only treats migrants, but also a wide range of patients from medicare, medicaid, and private  insurance plans. Patients without insurance are billed on a sliding scale based on  income.  It sounds like our little clinica has become the Kaiser of the Imperial Valley, only better.

I should emphasize that I was  only one of a group of people who worked to make  la  clinica a reality. Al Kovar and Cesar Enriquez  of Casa de Amistad  and Lou Giancola of HEW quickly come to mind.  And I had no role in the clinic’s terrific growth since its inception.  Still  I think I can safely say that without me the clinic  would not have happened.

While not denying that there is an element of  shameless self-promotion in my telling the clinic’s  story,  I think it also highlights a larger  truth. CRLA was part of the federal  Legal Services  Program  within the  often maligned  “War on Poverty.”   The  time I worked at CRLA   was  the high point for federal support of legal service programs  for the poor, and CRLA was one  of the best financed  of those programs . We had the time and resources to do our jobs well.  But soon thereafter  Legal Services came under vicious political attacks resulting in  drastic budget cuts  and restrictions on the cases it could take.

Who knows what legal services for the poor might accomplish today  if it was generously  funded once again? A legal system where only the corporations  and the wealthy  are represented by lawyers hardly qualifies as as system of justice.

I also think my personal story  supports one of this blog’s primary messages–  the practice of law can be an exciting and socially helpful profession if individual lawyers choose to make it so. So If any young lawyer or law student should ever ask my career advice  again,  I plan to say, “Do something you find interesting that may  make the world a little less unjust– preferably something that  someday  might  afford you an  opportunity for  shameless self-promotion.”

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.

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

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.

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.