Archive for December, 2009

The International Law of Compassion

December 23, 2009 Leave a comment

The last post took a small step toward the realm of international law, and this post takes another step in that direction. International law, broadly defined, encompasses a full spectrum of agreements, treaties, conventions, resolutions, and decrees, all of which can be formal or informal, binding or non-binding. Some components of international law actually look like laws and come from legislative-like bodies like the United Nations. Others look like rules from regulatory agency-like bodies like the World Trade Organization. Other parts of international law are agreements between two or more sovereign states, or even between subnational entities. It is not uncommon for treaties to establish an administering body to adjudicate disputes arising under the treaty. International law thus can come from preexisting international bodies designed to make law, or it can arise from cross-border relationships.

Some Americans pay little attention to international law. They may see its systemic flaws as insurmountable, believe that international bodies should not bind domestic activity, or question the real motives behind international governing actions. Others, however, recognize the imperfections of international law as it stands today, but see international and global agreements as a worthwhile avenue for positive development. One powerful American, Associate Justice Anthony Kennedy, is a noted proponent of the applicability of foreign and international principles to American law and life and sometimes cites these principles in his judicial opinions. His opinion for the Court in the landmark case Lawrence v. Texas, 539 U.S. 558 (2003), is a good example. In overturning Bowers v. Hardwick, 478 U.S. 186 (1986) and striking down a state sodomy statute, Justice Kennedy bolstered the decision to overturn the Bowers case (which upheld a state law that criminalized sodomy between consenting adults, in private, as applied to homosexuals)  by pointing to foreign and international authority contrary to the Bowers holding:

To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in DudgeonUnited Kingdom. [Citing cases.] Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. [Citing amici curiae brief.] The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.

Lawrence, 539 U.S. at 576-77. In this example, Justice Kennedy is drawing on these sources to present a sense of global compassion.

Karen Armstrong is interested in compassion on a global scale as well. Armstrong is a British theologian who won a TED prize in 2008. In response, Armstrong, a former nun and current student of the major religions of the world, developed and issued her Charter for Compassion. The core of Armstrong’s thesis is that some version of the Golden Rule appears in all religions, and the root of this common core is a shared notion of compassion.

As presented, compassion tracks the discussion of passive and active virtues ongoing here. See supra. Compassion might sound like a baseline attitude or ethos, or a background sensibility to be recalled in convenient moments. For Armstrong and her supporters, however, there is an active element of compassion, which is something to be affirmatively practiced. Participating in a series of short presentations in support of the Charter at the Chautauqua Institution, Sri Swami Dayananda Saraswati emphasized the active nature of compassion:

Armstrong’s hope is that individuals around the world will read the Charter and add their names to its long list of signatories. See herehere, and here for more information.

One way that many people act out compassion is by making financial donations to causes they deem worthy of support. Contributing the monetary fruits of one’s labor can be a meaningful act and can offer the recipient flexibility to advance its mission. Briefly, if you are looking for worthy recipients for a financial donation during this season, consider supporting the documentary film To Them That’s Gone and the Crohn’s & Colitis Foundation of America.

Finally and undoubtedly, an element of compassion is passion. As the year and decade come to an end, many find time to reflect on their lives, the lives of those important to them, the loss of life, and passion for life. Few have both argued for and demonstrated passion for life like the late Jim Valvano. He delivered the most famous speech of his life, the keystone of his enduring legacy, at the ESPY Awards in 1993:

Merry Christmas and a happy homecoming to all.

Holiday Forum Shopping

December 16, 2009 8 comments

Attorney General Eric Holder recently decided that the United States would prosecute alleged 9/11 mastermind Khalid Sheik Mohammed in federal district court in New York, rather than in a military tribunal. Critics of this decision have not suggested that there are legal barriers to this move, and Holder agreed that civilian and military courts are both available under the law. Rather, the debate has played out on policy grounds.

When called before Congress to explain his decision– one he made without personal consultation with President Obama– the Attorney General said he did it to restore the integrity of the American judicial system. Part of Holder’s explanation of this justification was that civilian deaths outnumbered military deaths in the 9/11 attacks. He also said that the federal government, rather than New York, would bear the cost of the trial, which he estimated at $75 million for the first year.

If the Attorney General is trying to restore the integrity of the American judicial system, does it make sense to try Mohammed in civilian court? While our civilian judicial system is under daily attack by scholars and academics for perceived inefficiencies and arguably inappropriate resource allocations, these are comparatively minor points. Holder presumably is responding to the more significant criticism from popular and political sectors at home and abroad that American military tribunals are inadequate and lacking in integrity. The basic argument is that military tribunals, with their procedural restrictions, present an environment where the cards are stacked against detainees, who are tried and convicted with secret evidence and testimony from witnesses the detainees cannot confront.

All branches of government are concerned about their legitimacy, and this especially is true of the judicial branch. Courts usually are the least democratic, most inaccessible institutions in a democracy, so legitimacy is critical for them. Public perception is the keystone of legitimacy. Generally speaking, courts have no means by which to enforce their judgments. If the public believes a court is illegitimate, that court cannot function.

John Winger has a mixed history with the military justice system.

If Holder’s aim is to respond to the perceived deficiencies of the military justice system, does deliberately trying Mohammed in civilian, rather than military, court accomplish that goal, or does it admit a view that, when you really need fairness and integrity, military tribunals are not the place to go? If the Attorney General is unable to assuage the critics of military tribunals without changing the nature of those tribunals, are they ever appropriate? In not supporting the system that actually is under meaningful attack, has Holder conceded the critics’ point?

Supporters of military tribunals usually argue that prosecution before those bodies is appropriate when it is important that information required to conduct the proceeding not become public. They also argue that civilian trials of particularly dangerous individuals present a danger to the public not present in military trials. Opponents argue that in camera review (confidential review of evidence by the judge alone, in chambers) can adequately avoid disclosure of secret or confidential information. Extensive use of in camera review, however, may itself undermine the legitimacy of the proceeding. Increased security can reduce the risk of dangerous occurrences at an increased cost.

Holder’s claim that trying Mohammed in civilian court will rehabilitate the judicial system may be dubious, but perhaps there are other reasons for making this selection. If a civilian prosecution in this particular case does restore (both domestic and foreign) public confidence in America’s treatment of detainees, this could lead to some abstract improvement in the country’s international relations. If it quiets calls for better detainee treatment, it could prevent a push to try Mohammed before an international tribunal (the thought being that an American civilian trial, while not as agreeable to proponents of a military trial, would be preferable to process before an international body).

Part of Holder’s defense was that the trial will be quick and, given the overwhelming evidence, the end (a guilty verdict) is strongly implied. This responds to some of his critics’ concerns while undermining his position. If the point of prosecuting in civilian court is to demonstrate that the United States gave Mohammed the most fair trial it could offer, the fact that the outcome is a foregone conclusion that will follow from a quick and easy process suggest otherwise, and these statements from the Attorney General sound like something more than a prosecutor’s confidence in his case.

Republicans on the Senate Judiciary Committee, who did not necessarily share Holder’s background concerns, had other questions for the Attorney General:

How can we be assured that these enemies will be found guilty? Given that criminal courts are now the presumed venue for those captured on the battlefield, will soldiers need to read them their rights at the time of capture? Since you wish to make exceptions on a case-by-case basis to the presumed civil venue, don’t all those captured need to be read their rights and have the opportunity to remain silent? Won’t this venue expose intelligence to our enemies? Can our classified information really be secured? Can we in fact predict how the judge will rule? If these people are brought into the country will they get additional rights under immigration law? What if they claim asylum?

One observer reported that Holder “seemed bewildered in the face of these inquiries.”

As usual, there are arguments in favor of and opposed to the Attorney General’s decision to try Mohammed in civilian court. Their views on this question aside, those interested in consistency nevertheless may find Holder’s rationale, if not his position, unsatisfying.

The comment section below is available to explain your vote in the poll, present other arguments for and against the Attorney General’s decision, and offer alternative courses of action.

Categories: Current, International, Legal, Poll

The Federal Common Law Blues

December 9, 2009 4 comments

In 1842, the Supreme Court decided Swift v. Tyson, 41 U.S. 1, and acknowledged the existence of an unenunciated federal common law that federal courts could discern and develop from abstract, unstated, unenumerated general principles and concepts of law. But see Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (overruling Swift). At least for the first 160 or so American years, therefore, there was some sort of background set of notions, some underlying set of principles, beliefs, feelings, influences, and strains rattling around in the ether, informing common law explication and development across the land.

In 1842, another background set of feelings, moods, notions, principles, and beliefs also was knocking around the ether. Unlike the federal common law’s judicial developers, the primary interpreters were not highly regarded and robe-clad, although most of them did have life tenure. Their sources for interpretation were not the writings of the Greeks, Germans, Scots, English, and French (although European influences would find their place later on), and their tools for transcription were not the ink well and paper; indeed, most were illiterate. Instead, they were drawing on the raw emotion of a life of slavery, using voices, hands, and instruments descended from their African heritage. While the Erie Court brought the general federal common law to a screeching halt in 1938, the American blues remain an unstoppable force to this day.

Many people have written about the blues, but it is a difficult genre to appreciate and approach in 2009 (or, in popular musical notation, NOW 32). It is difficult, in other words, to understand the bare foundation, when we are used to seeing the building’s ornate and increasingly esoteric façade.  I came to the blues in a roundabout manner, after realizing that many of the songs I liked, across genres, had something in common. I couldn’t quite put my finger on it, but there was some common thread, or idea, or principle underlying these songs. Eventually, I found my way to the form and feeling of the blues, and began to dive deeper into the music’s history, carrying with me an appreciation of its more modern applications in pop, rock, and rock and roll, and gaining a more complete understanding of pockets like soul and R&B, and of the jazz I’d played and studied.

American blues eventually jumped the ocean and can now be heard all over the world, where new generations of musicians, who grew up in their own traditions, are reaching out into that same ether, trying to tap into the same currents, moods, forms, and temperaments.

There is a reason why, when the best musicians get together, the blues is the sonic plate du jour. For a one-off supergroup like the Dirty Mac, things are no different.

The federal judges in the Swift era never quite made it to drawing out all of the tenets and principles of the mystical federal common law before the Erie decision relieved them of that duty. With any hope, those operating on the basic blues forms will continue to search for new ideas and innovations and continue to reinvent the past. This process has a role in communities as well. There exists within the collective ether of most communities a set of customs, expectations, sentiments, feelings, and preferences generated over time. Stronger communities– those with longer histories, more significant attachments to place or space, or, perhaps, more homogeneous (defined broadly to include more than demographic factors) populations– may have a broader, more robust set of values, than newer communities. On the other hand, communities formed for a particular purpose may have a more well-defined set of values. What is important for the strength in community that is necessary for community perpetuation and growth, is a process through which members of the community recognize that they do share a set of values, however broad, and engage in a process of discovery and interpretation of those values.

The comments below are available for any topical thoughts, whether you’re interested in Swift and Erie, value definition and exploration in your community, or just somebody who’s into the blues.

Derek Trucks: Blues Interpreter and Innovator

Categories: Action, Law, Music

Law “School”: Education or Professional Filtering?

December 4, 2009 3 comments

Although offhand criticism of lawyers is uncontroversial and commonplace, critics of legal education are less common. One reason for this distinction might be because few people who have not attended law school have the requisite motivation and information to engage in such criticism. Additionally, many who have attended law school do not have the requisite motivation. This is because people who invest up to three of the vital years of their lives, hundreds of thousands of their dollars, and their health (especially that of their eyes and hair), cannot approach the possibility that it all might have been a bad idea. This is understandable, which is to say that I am able to understand it. Even a mere critique of the legal education system is but a first step down that forbidden path.

That criticism of legal education is not especially common is not to say that legal education is less deserving of criticism. One of the values of a forthcoming assessment is that it can provide useful information to those who are being blindly led like lambs to the slaughterconsidering applying to law school. Another value is the possibility of advancing law education reform which, by extension, could lead to positive changes across the legal profession and in improvements in the broader society.

In America, legal education did not always take place in the university cash engines that are our modern law schools. Law school is best understood as a professional school, rather than a graduate school (real graduate students, like English and philosophy Ph.Ds, like to remind law students of this), so it makes sense that lawyers once trained in an apprenticeship regime reminiscent of Paul Revere or, more topically, Abraham Lincoln. Before the Civil War, aspiring attorneys apprenticed with an established lawyer, a custom known as “reading law” or “reading the law.” The shift to modern law schools began in the late 1800s, and the transition from apprenticeship to institutional training was a gradual one. (The transformation is not complete: even today, in places like Vermont, apprenticeship remains a recognized path to the legal profession.) In the process of making this transition, did the nature of the mission of legal training change as well? What, in other words, is the real purpose of modern law schools, and does it have any connection to the original apprenticeship model?

Legal professionals today commonly say that law school does not train students for the actual practice of law. Despite the ubiquity of the federal government in citizens’ lives, the majority of law is state law, and the majority of legal work takes place on the state and local levels. The differences are not so striking, but states do have their own discrete sets of laws and rules. Even where states have adopted the federal or model rules that are often the basis of law school classes, they rarely do so in whole or keep the same numbering and organization. In short, to be a functioning attorney, one must study and become expert in the laws, rules, and policies of the particular state or states in which one is practicing. See also state bar examinations. Disassociation with a particular locale was not a problem under the apprenticeship model, but there may be no better way to handle this aspect of law school education if schools are going to continue to send graduates to a variety of states for employment than to teach only the federal rules or model codes.

It is one thing if law schools cannot feasibly teach, in a single course, the specific rules of evidence and procedure for multiple jurisdictions, but it is another if the basic educational approach is misdirected. Law school is, in some ways, an uncomfortable nexus of the academic and professional worlds. Trainers are professors, (usually) not practitioners, and they must grade students’ work, not simply give feedback. The entire grade for a course usually is based on nothing more than a final examination, a written test that could last as few as three hours or as many as twenty-four. The letter grade on a transcript and, maybe, a look at the marked up answers, frequently are the only feedback a student receives.

Less formally, law school classrooms are not so often the hosts of heavy and widely participatory discussion as some might expect. The combination of the Socratic Method and access to wireless internet (though it may be nothing more than a twenty-first century substitute for daydreaming) often renders class a one-on-one exchange between the professor and the “on call” student. Common first year courses like contracts are broad, and have complicated histories such that it may be difficult to get through enough basic material in one semester to reach a point where discussion is useful or possible. On the other hand, the black letter foundation of each of these courses is well-established and mostly uncomplicated. Why, then, do professors so often obscure it or otherwise “hide the ball”? The answer might be understood by returning to the formal conflict between the professional and the academic in the area of grading. There are complicated parts of contract, tort, and criminal law, and of the procedure and evidence rules, but their core tenets are fairly easy to understand. The core tenets are also the main focus of the exams. This presents a problem when one is concerned about grade distribution, and law school administrators are concerned about grade distribution. Presumably, students’ raw scores are mostly clumped around a certain number. Grading professors must work to find distinctions between exam responses to force the clump apart and into a neatly organized bell curve of standard deviations. If they hide the ball during the semester, this will make the to-be-tested material harder for more students and the exam responses easier to curve.

If law school defers necessary apprenticeship instead of replacing it, wouldn't aspiring attorneys rather cut to the chase and strike while the iron is hot?

Obscuring the material may be a rational response, if the problem is one of grading and grade distribution. If the goal is professional legal training, however, this all seems a bit crazy. What could be the goal of a training system based on generating a particular grade distribution, other than professional filtering? A law student’s grade point average is the most important factor in hiring decisions. There are other relevant factors, but none nearly so important as GPA. To work to fashion a particular spread of GPAs is, when combined with the employer emphasis on grades, to operate a system of professional filtering.

If this is what is happening in law schools, it still might not be a problem if the professional marketplace values the skills the academic approach rewards. As presented, this approach rewards skills detached from the substance of the course, which mainly come down to hard work in the form of the ability and willingness to think independently and teach oneself the material. Hard work is a virtue and is relevant to any form of employment. This approach only rewards hard work, it doesn’t teach it, however, and it obscures the substantive legal material. If this presentation represents reality, it is hard to see the true value for students in an institution that looks like a professional regulatory hurdle.

In the end, there is little opportunity for practical, learning-by-doing education in law schools today. Clinical courses are not emphasized, legal writing is relegated to the first year and widely derided, and legal research education is outsourced to WestLaw and LexisNexis staffers whose goal is to hook law students on their service with free access and rewards programs. The overall situation is one of deferred apprenticeship. During summers and after graduation, students complete the apprentice-style, on-the-job training they need, learning the profession’s skills in their work with practicing attorneys.

There may never be a good time to ask someone what they think of law school, but now– when students are preparing for finals, prospective applicants are considering their futures, and those who graduated or left early are reaching a point of end-of-year reflection– is as good a time as any to have a conversation about the way we train people for work in a service industry that is both the butt of many jokes and one of the most well-respected professions in the country.

Categories: Education, Incentives, Legal

The Value of Citation

December 2, 2009 1 comment

The previous post made passing reference to the deficiency of cited material in the digital pages of Wikipedia, something that, for many, reduces the quality and reliability of the content.

Citations serve a number of purposes. Most basically, they allow the reader of a work to access the material the author of the work relied upon for the assertions in the work. The requirement for uniformity in citation stems from this basic purpose. Consistent format in citations facilitates readers’ ability to track down the precise source the author used. There are a number of citation styles, which are often extremely complex. Although there is not a single, common system of citation, different fields, professions, and specialties tend to adhere to a consistent system within their own literature. In legal documents, The Bluebook‘s “Uniform System of Citation” dominates the profession and is in its eighteenth edition. I have advocated a simpler regime, at least when it comes to academic papers, for some years, guided by the basic premises of citation discussed here: 1) provide enough information about the cited source to allow a reader to look at the same source material the author was looking at while writing, and 2) be consistent. Adherence to these two guidelines should require no additional work on the part of the author, unlike the more complicated systems.

Beyond this basic function, proper citation has other effects. One of these is the strengthening of the author’s credibility. In a legal brief, for example, the goal is to inform and convince a judge, not to create a great literary work. Judges who read a brief devoid of citation to relevant authorities will be skeptical of the brief, even if the arguments are of good quality. Statutes and court precedent are authorities that bind judges. When a brief cites those authorities, the judge is more comfortable with the attendant arguments because the advocate has presented arguments rooted in the judge’s relevant legal landscape. In the case of scholarship, the situation is inverted but the outcome is the same. There, the goal is to create a groundbreaking, original work, and one might think that citations to the work of others erodes originality. Very few scholars produce truly sui generis work; rather, it is very likely that they relied upon the ideas of those who came before them. Failure to cite to the ideas of others will erode the author’s credibility– first among readers familiar with the background literature and then more generally, once a reputation of plagiarism spreads– detract from whatever actually original ideas the author presented, and irk those whose ideas the author imported as original.

Beyond maintaining credibility, another purpose is the active showing of respect that comes with an affirmative recognition in the form of citation. More neutrally, citation to a source signals, in most cases, quality. This notion is the basis for tracking the influence of scholars and publications by aggregating and tallying citations. The idea of showing respect for content creators plays out informally as well. On online information websites like Twitter, for example, the practice of retweeting, or otherwise giving credit by linking to originators is common and widely favored.

Sometimes citations come as a pleasant surprise. A colleague recently forwarded me a link to the American Bar Association‘s news posting on the top legal blogs of 2009 and directed my attention to the caption for The Volokh Conspiracy:

The Volokh Conspiracy is named for its founder, UCLA law professor Eugene Volokh, but it’s authored by nearly 20 contributors, mostly law profs with a passion for con law, government policy and each other’s observations. One fan, Vanderbilt law student Alexander Denton, praises Volokh contributors for “engaging posts on a variety of topics, thoughtful interaction … and writing styles that are [both] scholarly and accessible.”

It is unlikely that the ABA bolstered its credibility with that inclusion. Even so, I’m sure a VC Guest-Blogging invitation will arrive any minute.

Categories: Information, Internet