Friday, August 11, 2006

random pictures

Monday, June 05, 2006

anonymous law firm

So here is something from the email circuits that I thought everyone should see,

This site is hilarious, absolutely amazing. It is the perfect parody, and so close to the truth it is painful to laugh.

There is also a blog and a book by the same guy.

Thursday, June 01, 2006

Weekly Hero, Thurgood Marshall

Thurgood Marshall is today's hero. Some have considered making Marshall a saint, which seems like a great idea to me.

His career with the NAACP is the cornerstone of my admiration. While I have often highlighted lawyers who pursue activism rather than litigation, Marshall demonstrates the way in which litigation can serve as a powerful symbolic weapon for the activist. His work on Brown v. Board of Education, though it did not result in real integration until about a decade later when the legislature went to work, was a powerful symbolic victory.

Some argue that such victories pacify rather than inspire activist movements. This is true sometimes, but other times that taste of victory is just what the movement needs to inspire further action. The Supreme Court in Brown recognized segregation as racist, and though it later limited Brown, this recognition may have fortified the moral high-ground of the activists and inspired the movement to take further political, legislative, and direct action.

The Brown strategy was brilliant, and an example to all activists seeking to use a litigation strategy.

On the Supreme Court, Marshall was a consistent and thoughtful advocate for compassion. Every time Thomas writes something crazy, we all miss Marshall a little more.

Wednesday, May 31, 2006

Devil's Advocate Jack Abramoff

So here is someone you may have heard of... Jack Abramoff!
So Jack was a lobbyist, now a convicted criminal and the center of a still unravelling corruption inquiry. He also happens to be a graduate of the most prestigious law school in the city, Georgetown. Let me tell you, it was a proud day for Georgetown when this guy's career went through the mud... maybe they'll revamp the ethics curriculum...

For me, part of what is so remarkable about Jack is his religious fervor. Abramoff is an Orthodox Jew, and I always find it shocking how cynically people can behave, even while professing (and experiencing) deep ethical and religious convictions.

Abramoff was convicted of tricking clients out of their money, but he would not merit mentioning as a devil's advocate if he was just a swindler. This kind of petty money-shuffling is not uncommon, but Abramoff is still special. His deception and self-agrandizement were the least of his problems... Abramoff was a lobbyist representing gambling interests. His strategy was to convince conservatives to kill anti-gambling legislation by claiming the legislation was not "strong enough" and proposing tougher legislation. The tougher legislation would not pass, and instead of stronger gambling restrictions, we end up with none.

This made everyone happy, particularly "conservative" politicians, who could grandstand and pose for their base, while secretly helping very wealthy interests their base despises.

This is another example of the way the modern conservative movement sneers at its religious and socially conservative base. This alone would be enough to earn Abramoff a Devil's Advocate, but his personal ethical twistedness and egoistic hubris are the icing on the cake.

Thursday, May 25, 2006

Surprise! a conservative court

The Supreme Court special, institutional role is to protect minorities and preserve the democratic process. That's what John Hart Ely says in Democracy and Distrust and the supreme court said in the famous footnote four of Carolene Products.

Guess what? The whole thing is bogus and founded on a rosy picture of history. The institutional role of the Court is to create the appearance of of fairness and democracy while supporting the interest of the elite in maintaining the status quo.
Let's begin at the beginning. Article III of the constitution creates the Supreme Court and provides procedures for the selection of Justices. The Justices are appointed during "good behavior" (ie for life) and are selected by the President. The president, in turn is selected by electors. The electors are selected by the state legislatures. the state legislators are selected by the people. The constitution places the supreme court four delegated steps away from democracy, and provides that once selected they are entirely unaccountable. Impeachment is not available for political purposes, only for high crimes and misdemeanors. Why is the Supreme Court deliberately undemocratic and unaccountable? The federalists were afraid that the rabble would take control of the representative bodies, and wanted to ensure that the elites were entrenched in the courts.
Fast-forward to reconstruction. The legislatures, in an extraordinary moment of true republican zeal, undertook a far-reaching plan to overhaul society to be more fair to the newly freed slaves. However, they feared the courts would interfere, so they passed the 14th amendment, guaranteeing equal protection of the law, even state law, and giving congress the power to enforce equal protection throughout the nation by legislation.

The court responded. They first limited the 13th amendment to a strict, formalistic interpretation of "involuntary servitude." Then they interpreted the fourteenth amendment to apply only to "political" laws like jury duty, rather than "social" laws segregation.
the civil rights cases - limited the 14th amendment to "state action" and preventing the federal legislature from regulating private discrimination.
Plessy. Needs no introduction.

The fourteenth amendment was designed to change society, but the court interpreted it to preserve as much as possible Slaughterhouse Cases. The amendment was designed to break down the caste structure that kept poor, black, former slaves beneath white masters. It was interpreted by the court to apply only to government action and only to political, explicit disadvantaging of black people in the letter of the law.
Plessy has overtones of Dred Scott; there is a sense of fatalism about social equality. According to the court, if black people think that segregation makes them unequal, it is only because they feel unequal, because the law separates both white from black and black from white symetrically.
Of course, segregation was not equal and not intended to be equal. But that didn't bother the court, they were only concerned with maintaining the appearance of equality.
This is only the most obvious example. Throughout history, Dred, Plessy, Lochner, Hammer v. Sidway, Brown (II), Bakke, Gratz, The courts have interpreted the constitution to appear fair, rather than to mandate justice! This continues in all areas of constitutional law, from the first amendment rights of corporations and the wealthy, to the "symmetry" of equal protection, to the on-again-off-again deference of Chevron, the law is skewed toward the elites and shielded by the rhetoric of rights and precedent.
The court is concerned with what O'Conner (in casey) calls "institutional legitimacy." It must be extremely true to precedent, particularly in rhetoric, in order to maintain the appearance that court decisions are fair and just. In most cases, precedent = status quo, which is convenient for the elites. More importantly, however, legitimacy SHOULD NOT be an ends in itself.

"Legitimacy" is an information cost, a screen between the court and justice. Let the court make it's decisions openly, reasoning explicitly from policy and good sense, then we will evaluate these decisions on the merits of justice, not on some false appearance of fairness.
Should the courts protect the marginalized and ensure a working democratic process? sure, why not? everyone should! But it is hardly within their special expertise. The expertise of the court has long been ensuring the fair appearance of federal institutions, while maintaining the oppressive position of the elites in the status quo.
Activists should not pin all their hopes on the Court, (or legislature for that matter) but on their own power to change society. Litigation and legislation are better at slowing change than encouraging it; make sure to include direct action!

Wednesday, May 24, 2006

Eugene Debs and Clarence Darrow

The hero for this week is a two-fer. Debs and Darrow were partners at one point, and Darrow represented Debs on at least one occasion, so it isn't a stretch to talk about these two contemporaries in one post.
Debs was a union activist, orator, and candidate for the Socialist Party for president of the United States. His career spans from the Pullman strike to the antiwar movement during the great war. He was imprisoned on more than one occasion for peaceful speech.
Clarence Darrow began his career as a corporate litigator, but switched sides to defend Debs after the Pullman strike. Darrow also defended the teacher who taught evolution during the Scopes trial.
Darrow was a great litigator, and Debs a great thinker and speaker. Together, they are this week's Hero.
Debs quotes:
"I am not a Labor Leader; I do not want you to follow me or anyone else; if you are looking for a Moses to lead you out of this capitalist wilderness, you will stay right where you are. I would not lead you into the promised land if I could, because if I lead you in, some one else would lead you out. You must use your heads as well as your hands, and get yourself out of your present condition."
"If you go to the city of Washington, and you examine the pages of the Congressional Directory, you will find that almost all of those corporation lawyers and cowardly politicians, members of Congress, and misrepresentatives of the masses—you will find that almost all of them claim, in glowing terms, that they have risen from the ranks to places of eminence and distinction. I am very glad I cannot make that claim for myself. I would be ashamed to admit that I had risen from the ranks. When I rise it will be with the ranks, and not from the ranks."
"The Man of Galilee, the Carpenter, the workingman who became the revolutionary agitator of his day soon found himself to be an undesirable citizen in the eyes of the ruling knaves and they had him crucified."
Clarence Darrow
"With all their faults, trade-unions have done more for humanity than any other organization of men that ever existed. They have done more for decency, for honesty, for education, for the betterment of the race, for the developing of character in man, than any other association of men."
"When I was a boy I was told that anybody could become President. I'm beginning to believe it."

Tuesday, May 23, 2006

The Republican Veto rule, Hastert's unconstitutional power grab

Is the "Republican Veto" unconstitutional?

Speaker Hastert has come up with a clever way to ensure that all House bills are approved by the right-most half of the republican party.

His "majority of the majority" rule, functions as a "party veto", permitting any majority of republican house members to veto a bill.
"Speaker J. Dennis Hastert's insistence that major legislation reach the House floor only if it appears to be backed by a "majority of the majority" could throw a high hurdle in front of efforts to reach a House-Senate compromise on immigration later this year, lawmakers said. Hastert (R-Ill.) has invoked the policy in blocking bills that appeared likely to win approval from more than half of the House's 435 members but less than half of its 231 Republicans."

This means that any 161 Republicans have the power to stop any bill they do not like, no matter how many democrats and moderate republicans support it.

The consequence of this policy is to further discourage involving House democrats in legislation, and to shift legislation to the right.

This seems like an almost unconstitutional rule, reminiscent of Clinton v. New York and the line item veto, or the congressional veto of legislated executive discretion in INS v. Chadha. I know that there is considerable discretion in congress to permit rulemaking, but this seems fundamentally different than committee rules or floor debate regulation.

Could Hastert say that no bill will go to the floor unless it is approved by, for example, the house republican leadership? or, Tom Delay? or Hastert? Would it be legal to create a rule giving the speaker of the house alone a similar veto power? What about me? Could he give me veto power?

How far does "rulemaking" power go?

This rule gives special power to particular person or group to overrule a majority of the legislature. If Chadha and Clinton v. NY are "legislative actions," then this veto power should also be a legislative action and unconstitutional.