“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.
https://blacklivesmatter.com/about/

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.)
https://ropercenter.cornell.edu/polls/us-elections/how-groups-voted/groups-voted-2016/

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.

https://www.theatlantic.com/international/archive/2017/10/china-belt-and-road/542667/

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.
https://www.washingtonpost.com/world/another-chinese-human-rights-lawyer-is-going-to-jail/2017/11/20/5af09cbc-ce5d-11e7-8447-3d80b84bebad_story.html?utm_term=.ec0b372a383

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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Heroes

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.”  https://www.nytimes.com/2017/10/27/opinion/twitter-first-amendment.html?_r=0. .

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. https://www.nytimes.com/2017/10/25/us/politics/trump-republican-party-critics.html

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.

 

Marshall

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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,  https://www.nytimes.com/2017/08/25/us/charlottesville-protest-police.html?ref=oembed   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.  https://www.washingtonpost.com/blogs/erik-wemple/wp/2017/10/11/president-trump-may-be-too-incompetent-to-destroy-the-first-amendment/?utm_term=.1e9916ffa709   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://www.nytimes.com/2017/08/23/nyregion/a-judge-wants-a-bigger-role-for-female-lawyers-so-he-made-a-rule.html?mcubz=3 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.