Traditional Notions

The End... and a new beginning.

2009-04-26T21:55:00.000-07:00

Well, this blog ended some time ago, but I'll make it official. This is my last post. In a few weeks, I graduate from law school. Shortly thereafter I am told I have to take some sort of test.

Then, if all goes well and I jump through a bunch of hoops, I will make the following affirmation sometime in December: "I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability."

Seems simple enough. I do like the idea of pledging my allegiance to law above all else; there is no pledge to the country or its government. The oath is to the Constitution alone.

Unfortunately, in the past few weeks more has come out about members of my chosen profession failing (in my opinion) to uphold their oath. I am particularly saddened by the recently released torture memo signed by Jay Bybee, formerly head of the DOJ Office of Legal Counsel and current judge on the Ninth Circuit Court of Appeals. Relying on another memo he wrote, Bybee essentially authorized the waterboarding of Abu Zubaydah, which resulted in his being waterboarded at least 83 times in one month. A first-year law student should see the analytical mistake in the memos: they only present an advocate's view of the law of torture in an ostensibly objective legal memorandum. Further, scant attention is paid to the idea that while a single act may not be torture, repeated application or combinations of techniques can easily become torture (even if it were conceded that a single act of waterboarding is not torture, it is very hard to argue that simulating drowning almost three times a day for a month is not designed to provoke severe mental harm). But the substantive claims made are also wrong-headed, most notably the claim that a law attempting to restrict the President's ability to torture may be unconstitutional. The memos have been repudiated by subsequent Bush OLC administrations, but the damage - to America, to the profession, and to Abu Zubadaya's brain - has already been done.

But, there is also hope for the profession. Earlier this year Lieutenant Colonel Darrel Vandevelde, formerly of the US Army Reserve Judge Advocate General's Corps, filed this petition in support of the release of Mohammed Jawad, a Guantanamo detainee that Lt. Col. Vandevelde had been charged with prosecuting. He writes:

It is my opinion, based on my extensive knowledge of the case, that there is no credible evidence or legal basis to justify Mr. Jawad’s detention in U.S. custody or his prosecution by military commission. There is, however, reliable evidence that he was badly mistreated by U.S. authorities both in Afghanistan and at Guantanamo, and he has suffered, and continues to suffer, great psychological harm. Holding Mr. Jawad’s for over six years, with no resolution of his case and with no terminus in sight, is something beyond a travesty.

Lt. Col. Vandevelde goes on to describe his attempts over the course of more than a year to put together any sort of prosecution against Jawad, his eventual determination that Jawad was a minor at the time of his detention and incarceration, and his belief that he had suffered abuse at the hands of his American captors, including extensive sleep deprivation in Gitmo and physical abuse at Bagram, and that ultimately Jawad had been falsely accused of wrongdoing . Lt. Col. Vandevelde concludes:

Ultimately, I decided that I could no longer ethically prosecute Mr. Jawad or, in good conscience, serve as a prosecutor at OMC-P. I have taken an oath to support and defend the Constitution of the United States, and I remain confident that I have done so, spending over four of the past seven years away from my family, my home, my civilian occupation - all without any expectation of or desire for any reward greater than the knowledge that I have remained true to my word and have done my level best to rise to our Nation's defense in its time of need. I did not "quit" the Commissions or resign; instead, I personally petitioned the Army's Judge Advocate General to allow me to serve the remaining six months of my two year voluntary obligation in Afghanistan or Iraq. In the exercise of his wisdom and discretion, he permitted me to be released from active duty. However, had I been returned to Afghanistan or Iraq, and had I encountered Mohammed Jawad in either of those hostile lands, where two of my friends have been killed in action and another one of my very best friends in the world had been terribly wounded, I have no doubt at all- none - that Mr. Jawad would pose no threat whatsoever to me, his former prosecutor and now-repentant persecutor. Six years is long enough for a boy of sixteen to serve in virtual solitary confinement, in a distant land, for reasons he may never fully understand. I respectfully ask this Court to find that Mr. Jawad's continued detention is unsupported by any credible evidence, any provision of the Detainee Treatment Act of 2005, the MCA, international law or our own hallowed Constitution. Mr. Jawad should be released to resume his life in a civil society, for his sake, and for our own sense of justice and perhaps to restore a measure of our basic humanity.

I humbly hope that I may live up to Lt. Col. Vandevelde's expectations as to the importance of our oath. I hope you might help me along the way. Take care of yourselves,

Dave

Sarah Palin is Not Flat Busted

2008-09-04T03:17:00.000-07:00

This photo of Republican VP candidate Sarah Palin shows her showing off her shirt that reads "I may be broke but, I'm not flat busted." It was provided to the media by her parents.

I think the implication of this should be clear to everyone: a vice presidential candidate that would choose to wear a shirt with a message that employs such poor use of punctuation is clearly unqualified for the job.

I hope she enjoys her 15 minutes!

USF Beats Boalt.... Again!

2008-08-10T04:14:00.000-07:00

It was noted here last winter that USF beat Berkeley Law in first-time passage rate of the July 2007 California Bar Exam. The Bar is administered twice a year, and the February 2008 data are out. USF beat Boalt once again! And Hastings. And a bunch of others. As a matter of fact, we beat the rest of the ABA schools with the exception of Stanford, USC, Loyola and California Western.

Of course, a lot less people take the Bar for the first time in February, thus the numbers should be taken with a grain of salt.

What does this mean? As usual, not much. Berkeley will go on having excellent OCI prospects, taking open book exams and failing to disclose class ranks. We'll probably keep on falling in the rankings.

But we here at Traditional Notions like winning at things, so we thought we would pass it along.

Reason Number 4,572 Why Socialism Sucks

2008-05-07T01:56:00.000-07:00

Sunrise over Havana. This is a photo taken by blogger Yoani Sanchez, from her balcony in Havana, Cuba. I admit I had never considered that Cuba might have a lot of air pollution. It being a Caribbean island nation with ocean breezes, sustaining itself on tourism and supposedly so committed to the common good and all. Some simple research confirmed that air quality is, indeed, terrible. Although one might find that surprising in a place with virtually no cars and pretty much incapable of producing much more than the basic necessities of life for itself.

But, it is a fairly common trend. Industrialized, free market nations do a significantly better job of protecting the environment than poor nations, particularly communist ones. The reasons run the gamut from using wood for cooking fires to the development of environmentally friendly technology. All it takes is one look at Eastern Europe, Russia or China to see how badly the communist states have treated the air.

Anyway. I highly recommend Ms. Sanchez's blog, Generacion Y (you can get some of it translated into English here, but it's not as good). Though clearly political, she has a knack of avoiding ideological harangues (perhaps like this one?) and just telling stories of daily life in Cuba.

The Eyes of The World are on You, Hillary

2008-05-07T00:57:00.000-07:00

Sen. Clinton on May 2:

This primary election on Tuesday is a game changer. This is going to make a huge difference in what happens going forward. The entire country -- probably even a lot of the world -- is looking to see what North Carolina decides.

And North Carolina decided: Obama 56%, Clinton 42%.

It's time for Hillary to go.

Why I hate TV

2008-04-27T12:30:00.000-07:00

Even when it's not TV, it's HBO. Season 1, Episode 8 of Big Love:

Lawyer: You are being sued for $5 million in injunctive relief....

Hrmmph.

Repeal the Sixth and Seventh Amendments!

2008-04-16T10:11:00.000-07:00

After what seemed like a lifetime of jury duty (but was really only two days), I've decided it's time to start flipping coins. One of my fellow jurors put it best: "After two hundred-odd years of this country, is this the fuckin' best we can do? Waste sixty persons' time for two days with a bunch of dumb questions? Pick 12 people and decide this thing, already!"

Of course, me and the two people with JD's were eventually peremptoried off. But couldn't they have decided they did not want any lawyers on the jury on Monday instead of making us come in to hear the inevitable on Tuesday?

Previous thoughts on why jurors should be paid available here.

Dr. King's Last Sermon

2008-04-04T13:56:00.000-07:00

I See The Promised Land
April 3, 1968
Memphis, Tennessee

Thank you very kindly, my friends. As I listened to Ralph Abernathy in his eloquent and generous introduction and then thought about myself, I wondered who he was talking about. It's always good to have your closest friend and associate say something good about you. And Ralph is the best friend that I have in the world.

I'm delighted to see each of you here tonight in spite of a storm warning. You reveal that you are determined to go on anyhow. Something is happening in Memphis, something is happening in our world.

As you know, if I were standing at the beginning of time, with the possibility of general and panoramic view of the whole human history up to now, and the Almighty said to me, "Martin Luther King, which age would you like to live in?"-- I would take my mental flight by Egypt through, or rather across the Red Sea, through the wilderness on toward the promised land. And in spite of its magnificence, I wouldn't stop there. I would move on by Greece, and take my mind to Mount Olympus. And I would see Plato, Aristotle, Socrates, Euripides and Aristophanes assembled around the Parthenon as they discussed the great and eternal issues of reality.

But I wouldn't stop there. I would go on, even to the great heyday of the Roman Empire. And I would see developments around there, through various emperors and leaders. But I wouldn't stop there. I would even come up to the day of the Renaissance, and get a quick picture of all that the Renaissance did for the cultural and esthetic life of man. But I wouldn't stop there. I would even go by the way that the man for whom I'm named had his habitat. And I would watch Martin Luther as he tacked his ninety-five theses on the door at the church in Wittenberg.

But I wouldn't stop there. I would come on up even to 1863, and watch a vacillating president by the name of Abraham Lincoln finally come to the conclusion that he had to sign the Emancipation Proclamation. But I wouldn't stop there. I would even come up the early thirties, and see a man grappling with the problems of the bankruptcy of his nation. And come with an eloquent cry that we have nothing to fear but fear itself.

But I wouldn't stop there. Strangely enough, I would turn to the Almighty, and say, "If you allow me to live just a few years in the second half of the twentieth century, I will be happy." Now that's a strange statement to make, because the world is all messed up. The nation is sick. Trouble is in the land. Confusion all around. That's a strange statement. But I know, somehow, that only when it is dark enough, can you see the stars. And I see God working in this period of the twentieth century in a way that men, in some strange way, are responding--something is happening in our world. The masses of people are rising up. And wherever they are assembled today, whether they are in Johannesburg, South Africa; Nairobi, Kenya: Accra, Ghana; New York City; Atlanta, Georgia; Jackson, Mississippi; or Memphis, Tennessee--the cry is always the same--"We want to be free."

And another reason that I'm happy to live in this period is that we have been forced to a point where we're going to have to grapple with the problems that men have been trying to grapple with through history, but the demands didn't force them to do it. Survival demands that we grapple with them. Men, for years now, have been talking about war and peace. But now, no longer can they just talk about it. It is no longer a choice between violence and nonviolence in this world; it's nonviolence or nonexistence.

That is where we are today. And also in the human rights revolution, if something isn't done, and in a hurry, to bring the colored peoples of the world out of their long years of poverty, their long years of hurt and neglect, the whole world is doomed. Now, I'm just happy that God has allowed me to live in this period, to see what is unfolding. And I'm happy that he's allowed me to be in Memphis.

I can remember, I can remember when Negroes were just going around as Ralph has said, so often, scratching where they didn't itch, and laughing when they were not tickled. But that day is all over. We mean business now, and we are determined to gain our rightful place in God's world.

And that's all this whole thing is about. We aren't engaged in any negative protest and in any negative arguments with anybody. We are saying that we are determined to be men. We are determined to be people. We are saying that we are God's children. And that we don't have to live like we are forced to live.

Now, what does all of this mean in this great period of history? It means that we've got to stay together. We've got to stay together and maintain unity. You know, whenever Pharaoh wanted to prolong the period of slavery in Egypt, he had a favorite, favorite formula for doing it. What was that? He kept the slaves fighting among themselves. But whenever the slaves get together, something happens in Pharaoh's court, and he cannot hold the slaves in slavery. When the slaves get together, that's the beginning of getting out of slavery. Now let us maintain unity.

Secondly, let us keep the issues where they are. The issue is injustice. The issue is the refusal of Memphis to be fair and honest in its dealings with its public servants, who happen to be sanitation workers. Now, we've got to keep attention on that. That's always the problem with a little violence. You know what happened the other day, and the press dealt only with the window-breaking. I read the articles. They very seldom got around to mentioning the fact that one thousand, three hundred sanitation workers were on strike, and that Memphis is not being fair to them, and that Mayor Loeb is in dire need of a doctor. They didn't get around to that.

Now we're going to march again, and we've got to march again, in order to put the issue where it is supposed to be. And force everybody to see that there are thirteen hundred of God's children here suffering, sometimes going hungry, going through dark and dreary nights wondering how this thing is going to come out. That's the issue. And we've got to say to the nation: we know it's coming out. For when people get caught up with that which is right and they are willing to sacrifice for it, there is no stopping point short of victory.

We aren't going to let any mace stop us. We are masters in our nonviolent movement in disarming police forces; they don't know what to do. I've seen them so often. I remember in Birmingham, Alabama, when we were in that majestic struggle there we would move out of the 16th Street Baptist Church day after day; by the hundreds we would move out. And Bull Connor would tell them to send the dogs forth and they did come; but we just went before the dogs singing, "Ain't gonna let nobody turn me round." Bull Connor next would say, "Turn the fire hoses on." And as I said to you the other night, Bull Connor didn't know history. He knew a kind of physics that somehow didn't relate to the transphysics that we knew about. And that was the fact that there was a certain kind of fire that no water could put out. And we went before the fire hoses; we had known water. If we were Baptist or some other denomination, we had been immersed. If we were Methodist, and some others, we had been sprinkled, but we knew water.

That couldn't stop us. And we just went on before the dogs and we would look at them; and we'd go on before the water hoses and we would look at it, and we'd just go on singing. "Over my head I see freedom in the air." And then we would be thrown in the paddy wagons, and sometimes we were stacked in there like sardines in a can. And they would throw us in, and old Bull would say, "Take them off," and they did; and we would just go in the paddy wagon singing, "We Shall Overcome." And every now and then we'd get in the jail, and we'd see the jailers looking through the windows being moved by our prayers, and being moved by our words and our songs. And there was a power there which Bull Connor couldn't adjust to; and so we ended up transforming Bull into a steer, and we won our struggle in Birmingham.

Now we've got to go on to Memphis just like that. I call upon you to be with us Monday. Now about injunctions: We have an injunction and we're going into court tomorrow morning to fight this illegal, unconstitutional injunction. All we say to America is, "Be true to what you said on paper." If I lived in China or even Russia, or any totalitarian country, maybe I could understand the denial of certain basic First Amendment privileges, because they hadn't committed themselves to that over there. But somewhere I read of the freedom of assembly. Somewhere I read of the freedom of speech. Somewhere I read of the freedom of the press. Somewhere I read that the greatness of America is the right to protest for right. And so just as I say, we aren't going to let any injunction turn us around. We are going on.

We need all of you. And you know what's beautiful to me, is to see all of these ministers of the Gospel. It's a marvelous picture. Who is it that is supposed to articulate the longings and aspirations of the people more than the preacher? Somehow the preacher must be an Amos, and say, "Let justice roll down like waters and righteousness like a mighty stream." Somehow, the preacher must say with Jesus, "The spirit of the Lord is upon me, because he hath anointed me to deal with the problems of the poor."

And I want to commend the preachers, under the leadership of these noble men: James Lawson, one who has been in this struggle for many years; he's been to jail for struggling; but he's still going on, fighting for the rights of his people. Rev. Ralph Jackson, Billy Kiles; I could just go right on down the list, but time will not permit. But I want to thank them all. And I want you to thank them, because so often, preachers aren't concerned about anything but themselves. And I'm always happy to see a relevant ministry.

It's alright to talk about "long white robes over yonder," in all of its symbolism. But ultimately people want some suits and dresses and shoes to wear down here. It's alright to talk about "streets flowing with milk and honey," but God has commanded us to be concerned about the slums down here, and his children who can't eat three square meals a day. It's alright to talk about the new Jerusalem, but one day, God's preacher must talk about the New York, the new Atlanta, the new Philadelphia, the new Los Angeles, the new Memphis, Tennessee. This is what we have to do.

Now the other thing we'll have to do is this: Always anchor our external direct action with the power of economic withdrawal. Now, we are poor people, individually, we are poor when you compare us with white society in America. We are poor. Never stop and forget that collectively, that means all of us together, collectively we are richer than all the nation in the world, with the exception of nine. Did you ever think about that? After you leave the United States, Soviet Russia, Great Britain, West Germany, France, and I could name the others, the Negro collectively is richer than most nations of the world. We have an annual income of more than thirty billion dollars a year, which is more than all of the exports of the United States, and more than the national budget of Canada. Did you know that? That's power right there, if we know how to pool it.

We don't have to argue with anybody. We don't have to curse and go around acting bad with our words. We don't need any bricks and bottles, we don't need any Molotov cocktails, we just need to go around to these stores, and to these massive industries in our country, and say, "God sent us by here, to say to you that you're not treating his children right. And we've come by here to ask you to make the first item on your agenda--fair treatment, where God's children are concerned. Now, if you are not prepared to do that, we do have an agenda that we must follow. And our agenda calls for withdrawing economic support from you."

And so, as a result of this, we are asking you tonight, to go out and tell your neighbors not to buy Coca-Cola in Memphis. Go by and tell them not to buy Sealtest milk. Tell them not to buy--what is the other bread?--Wonder Bread. And what is the other bread company, Jesse? Tell them not to buy Hart's bread. As Jesse Jackson has said, up to now, only the garbage men have been feeling pain; now we must kind of redistribute the pain. We are choosing these companies because they haven't been fair in their hiring policies; and we are choosing them because they can begin the process of saying, they are going to support the needs and the rights of these men who are on strike. And then they can move on downtown and tell Mayor Loeb to do what is right.

But not only that, we've got to strengthen black institutions. I call upon you to take you money out of the banks downtown and deposit you money in Tri-State Bank--we want a "bank-in" movement in Memphis. So go by the savings and loan association. I'm not asking you something that we don't do ourselves at SCLC. Judge Hooks and others will tell you that we have an account here in the savings and loan association from the Southern Christian Leadership Conference. We're just telling you to follow what we're doing. Put your money there. You have six or seven black insurance companies in Memphis. Take out your insurance there. We want to have an "insurance-in."

Now there are some practical things we can do. We begin the process of building a greater economic base. And at the same time, we are putting pressure where it really hurts. I ask you to follow through here.

Now, let me say as I move to my conclusion that we've got to give ourselves to this struggle until the end. Nothing would be more tragic than to stop at this point, in Memphis. We've got to see it through. And when we have our march, you need to be there. Be concerned about your brother. You may not be on strike. But either we go up together, or we go down together.

Let us develop a kind of dangerous unselfishness. One day a man came to Jesus; and he wanted to raise some questions about some vital matters in life. At points, he wanted to trick Jesus, and show him that he knew a little more than Jesus knew, and through this, throw him off base. Now that question could have easily ended up in a philosophical and theological debate. But Jesus immediately pulled that question from mid-air, and placed it on a dangerous curve between Jerusalem and Jericho. And he talked about a certain man, who fell among thieves. You remember that a Levite and a priest passed by on the other side. They didn't stop to help him. And finally a man of another race came by. He got down from his beast, decided not to be compassionate by proxy. But with him, administered first aid, and helped the man in need. Jesus ended up saying, this was the good man, because he had the capacity to project the "I" into the "thou," and to be concerned about his brother. Now you know, we use our imagination a great deal to try to determine why the priest and the Levite didn't stop. At times we say they were busy going to church meetings--an ecclesiastical gathering--and they had to get on down to Jerusalem so they wouldn't be late for their meeting. At other times we would speculate that there was a religious law that "One who was engaged in religious ceremonials was not to touch a human body twenty-four hours before the ceremony." And every now and then we begin to wonder whether maybe they were not going down to Jerusalem, or down to Jericho, rather to organize a "Jericho Road Improvement Association." That's a possibility. Maybe they felt that it was better to deal with the problem from the casual root, rather than to get bogged down with an individual effort.

But I'm going to tell you what my imagination tells me. It's possible that these men were afraid. You see, the Jericho road is a dangerous road. I remember when Mrs. King and I were first in Jerusalem. We rented a car and drove from Jerusalem down to Jericho. And as soon as we got on that road, I said to my wife, "I can see why Jesus used this as a setting for his parable." It's a winding, meandering road. It's really conducive for ambushing. You start out in Jerusalem, which is about 1200 miles, or rather 1200 feet above sea level. And by the time you get down to Jericho, fifteen or twenty minutes later, you're about 2200 feet below sea level. That's a dangerous road. In the day of Jesus it came to be known as the "Bloody Pass." And you know, it's possible that the priest and the Levite looked over that man on the ground and wondered if the robbers were still around. Or it's possible that they felt that the man on the ground was merely faking. And he was acting like he had been robbed and hurt, in order to seize them over there, lure them there for quick and easy seizure. And so the first question that the Levite asked was, "If I stop to help this man, what will happen to me?" But then the Good Samaritan came by. And he reversed the question: "If I do not stop to help this man, what will happen to him?".

That's the question before you tonight. Not, "If I stop to help the sanitation workers, what will happen to all of the hours that I usually spend in my office every day and every week as a pastor?" The question is not, "If I stop to help this man in need, what will happen to me?" "If I do no stop to help the sanitation workers, what will happen to them?" That's the question.

Let us rise up tonight with a greater readiness. Let us stand with a greater determination. And let us move on in these powerful days, these days of challenge to make America what it ought to be. We have an opportunity to make America a better nation. And I want to thank God, once more, for allowing me to be here with you.

You know, several years ago, I was in New York City autographing the first book that I had written. And while sitting there autographing books, a demented black woman came up. The only question I heard from her was, "Are you Martin Luther King?"

And I was looking down writing, and I said yes. And the next minute I felt something beating on my chest. Before I knew it I had been stabbed by this demented woman. I was rushed to Harlem Hospital. It was a dark Saturday afternoon. And that blade had gone through, and the X-rays revealed that the tip of the blade was on the edge of my aorta, the main artery. And once that's punctured, you drown in your own blood--that's the end of you.

It came out in the New York Times the next morning, that if I had sneezed, I would have died. Well, about four days later, they allowed me, after the operation, after my chest had been opened, and the blade had been taken out, to move around in the wheel chair in the hospital. They allowed me to read some of the mail that came in, and from all over the states, and the world, kind letters came in. I read a few, but one of them I will never forget. I had received one from the President and the Vice-President. I've forgotten what those telegrams said. I'd received a visit and a letter from the Governor of New York, but I've forgotten what the letter said. But there was another letter that came from a little girl, a young girl who was a student at the White Plains High School. And I looked at that letter, and I'll never forget it. It said simply, "Dear Dr. King: I am a ninth-grade student at the Whites Plains High School." She said, "While it should not matter, I would like to mention that I am a white girl. I read in the paper of your misfortune, and of your suffering. And I read that if you had sneezed, you would have died. And I'm simply writing you to say that I'm so happy that you didn't sneeze."

And I want to say tonight, I want to say that I am happy that I didn't sneeze. Because if I had sneezed, I wouldn't have been around here in 1960, when students all over the South started sitting-in at lunch counters. And I knew that as they were sitting in, they were really standing up for the best in the American dream. And taking the whole nation back to those great wells of democracy which were dug deep by the Founding Fathers in the Declaration of Independence and the Constitution. If I had sneezed, I wouldn't have been around in 1962, when Negroes in Albany, Georgia, decided to straighten their backs up. And whenever men and women straighten their backs up, they are going somewhere, because a man can't ride your back unless it is bent. If I had sneezed, I wouldn't have been here in 1963, when the black people of Birmingham, Alabama, aroused the conscience of this nation, and brought into being the Civil Rights Bill. If I had sneezed, I wouldn't have had a chance later that year, in August, to try to tell America about a dream that I had had. If I had sneezed, I wouldn't have been down in Selma, Alabama, to see the great movement there. If I had sneezed, I wouldn't have been in Memphis to see a community rally around those brothers and sisters who are suffering. I'm so happy that I didn't sneeze.

And they were telling me, now it doesn't matter now. It really doesn't matter what happens now. I left Atlanta this morning, and as we got started on the plane, there were six of us, the pilot said over the public address system, "We are sorry for the delay, but we have Dr. Martin Luther King on the plane. And to be sure that all of the bags were checked, and to be sure that nothing would be wrong with the plane, we had to check out everything carefully. And we've had the plane protected and guarded all night."

And then I got into Memphis. And some began to say that threats, or talk about the threats that were out. What would happen to me from some of our sick white brothers?

Well, I don't know what will happen now. We've got some difficult days ahead. But it doesn't matter with me now. Because I've been to the mountaintop. And I don't mind. Like anybody, I would like to live a long life. Longevity has its place. But I'm not concerned about that now. I just want to do God's will. And He's allowed me to go up to the mountain. And I've looked over. And I've seen the promised land. I may not get there with you. But I want you to know tonight, that we, as a people will get to the promised land. And I'm happy, tonight. I'm not worried about anything. I'm not fearing any man. Mine eyes have seen the glory of the coming of the Lord.

Does JP Know How to Use a Computer?

2008-03-28T17:40:00.000-07:00

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Obsessions

2008-03-25T14:58:00.000-07:00

I've been slack in my posting for the past few weeks, and I am not sure why since I have been obsessesed with a whole host of issues, in particular the corporate law issues in the Microsoft acquisiton of Yahoo, the Bear Stearns collapse, and DC v. Heller.

However, all those fell to the side when the decision in Medellin v. Texas came down this morning. I have posted my commentary at Transnational Law Blog, and also here. I have been working on a law review comment on the topic of Medellin and it's antecedents for some time now, and it was quite gratifying to be engaged in the discussion about it immediately when it came down (and based on first-hand knowledge of the history, briefing and decisions, not second-hand reporting on it). I had made a prediction about what the outcome in the case was going to be, and if I do say so myself I think it was pretty close, particularly compared with the prediction of Prof. Hollis, who was actually cited in the opinion.

Anyway.... all of this to say it's been a good semester for engagement with complex real-world legal issues without feeling like I am foundering around. And the legal issues dovetail nicely with my classes, which means I continue to be engaged with them. Of course, all of this at the expense on my interests in college basketball, which I have to admit seems to have completely dissipated this year, despite Carolina's shot at the the championship. Oh, well.

Medellin v. Texas: ICJ decision creates an international obligation, but not domestic law

2008-03-25T14:46:00.000-07:00

Cross-posted at TLB.

This morning’s decision in Medellin v. Texas is the culmination of a long line of cases, both at the ICJ and at the Supreme Court, that have attempted to determine the effect that an ICJ ruling has under U.S. domestic law. In the law review comment I am working on, I have approached this problem from the perspective of trying to doctrinally resolve the Medellin line of cases with the Supreme Court’s decision in Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985). In Mitsubishi, the Court determined that parties to an international commercial contract that appointed a third-party arbitrator would, absent an entirely egregious result, be bound to the decision of the arbitrator, even if such a decision is not the same result as what would be achieved in the courts. Thus, I wondered why it might not be possible for states to take a similar approach and appoint a third party arbitrator (such as the ICJ) to resolve disputes arising under a treaty (a contract between states).

The Supreme Court in Breard and Sanchez-Llamas seemed to be hostile to the idea of allowing the ICJ such a power. Thus, I anticipated that the decision in Medellin would limit the power of the ICJ to create a binding obligation. My prediction last week was that the Court would determine that while the ICJ had the power under the treaties to decide that the US had breached an obligation to Mexico or to other states and perhaps order damages, it would not allow the ICJ the power to order compliance measures that would have any effect under federal law. While this would be an unsatisfying answer (it is clear to most that the ICJ’s powers are not limited to award of damages), this was in some way reconcilable with Mitsubishi, since international third-party arbitrators are limited to awarding damages (and thus do not have the power to order a party to comply with the contract, only to determine that a breach has occurred.

My prediction, I think, was fairly close. I predicted it would be 5-4, though in fact it was 5-3 with a narrow concurrence by Stevens. The court did find that there is an international obligation, but declined to allow the ICJ to dictate the terms upon which it should be complied with domestically without some further action by the legislature. My initial reaction is that that approach is easily reconcilable with the approach taken in Mitsubishi. The opinion expressly notes that it is undisputed that the ICJ decision is an international legal obligation of the United States (p.8). The subsequent question is that if we accept that the US has this obligation, what needs to be done? Petitioner argued that nothing needs to be done, and that the domestic courts now have the power and obligation to enforce the judgment. The Solicitor General argued that nothing needs to be done until the President says what should be done. The Court rejected both of those approaches, and determined that compliance with our international legal obligation in this case requires some action on the part of the legislature.

Others, I’m sure, will debate the merits of whether the determination that nothing in either the Optional Protocol or Article 94 of the UN Charter creates a self-executing obligation under federal law. I think that there are good arguments to be made on either side of that debate. But the question of whether the judgment is a binding legal obligation is clear. The only question left domestically is: who is responsible for enforcing that obligation? The Court seems to state that it cannot be the judiciary acting alone, nor the executive acting alone. Thus, this problem is put squarely in the legislature’s lap (whether the federal Congress, or the state legislatures). For those concerned with constitutional overstepping of the President and/or the judiciary, this is a superb result. And even for those of us who are committed internationalists and would like to see a greater acceptance of international tribunals, this decision is not problematic. In a sense, it is a reaffirmation of the international obligation we have under the treaties, and merely concerns itself with the internal steps we must take in order to comply.

Simon's Rock Pride!

2008-02-25T08:55:00.000-08:00

My fellow alumni Joel and Ethan Coen are big-time Oscar winners.

It was a tough choice for me, but I have to say I liked There Will Be Blood just a bit more. Oh, well.

Post South Carolina Roundup

2008-01-27T16:38:00.000-08:00

It's no secret that I am for Obama. I predicted he would be the nominee in February 2007. I still think he is going to win, but I fear the Clintons.

To be honest, I have this pit of ice in my stomach, because I have a feeling that no matter what happens, I am going to come out of this having lost all respect for Bill Clinton. At 33, I suppose I should be used to watching heroes crumble, but I still can't bear to watch Bubba soil his image by race-baiting Obama. Consider, for example, Bill's attempted diminution of the South Carolina primary by noting that Jesse Jackson won the state in 1992. What do Jesse Jackson and Barack Obama have in common? Not much, except for the fact that they are both black. It's troubling when Bill Clinton is attempting to diminish the impact of Obama's more than 2-1 victory over Hillary in SC to nothing more than his blackness. The implication is that Barack, like Jesse, is nothing more than a black presidential candidate, and while they may win in a state like South Carolina they have no hopes of winning the nomination nationally.

I admired Bill Clinton's tenacity to win national elections against the Republicans. However, when he turns that skill against another Democrat, and particularly one that carries the hopes of a new generation of Democrats, it is incredibly worrisome.

For those of you who may be on the fence about Obama, I offer you these pieces from the past week:

Bob Herbert on some of the more troubling aspects of the Clintons.

Caroline Kennedy's op-ed endorsement of Obama, and why Obama represents the same hope for this generation that John F. Kennedy once offered another generation. Ted Kennedy is expected to leave neutrality behind and endorse Obama on Monday.

I offer this post and comment string from the conservative legal blog Volokh Conspiracy as evidence of Obama's appeal to some conservatives, at least educated ones. I believe Obama has the best chances of winning in November.

http://www.barackobama.com/

We Interrupt This Blog For An Important Public Service Announcement

2008-01-24T13:13:00.000-08:00

Presidential Candidates and the Juris Doctorate

2008-01-23T18:02:00.000-08:00

Democratic presidential candidates with JD's:

Hillary Clinton - Yale
Barack Obama - Harvard
John Edwards - UNC
Joe Biden - Syracuse
Chris Dodd - Louisville
Tom Vilsack - Albany

Without:

Bill Richardson (But has M.A. from Tuft's Fletcher School of Law and Diplomacy)
Dennis Kucinich
Mike Gravel

Republican candidates with JD's:

Mitt Romney - Harvard
Rudy Giuliani - NYU
Fred Thompson - Vanderbilt
Sam Brownback - Kansas
Duncan Hunter - Thomas Jefferson
Tommy Thompson - Wisconsin

Without JD's:

John McCain
Mike Huckabee - but for what it's worth he has an honorary LL.D from Ouachita Baptist University.
Ron Paul
Tom Tancredo
Alan Keyes

My highly unscientific conclusion: there is a correlation between "presidential candidate without a JD" and "slightly nutty".

What Are They Teaching at NYU Law These Days?

2008-01-22T19:41:00.000-08:00

From the NYT coverage of Heath Ledger's death:

Others in the crowd said their first reaction was disbelief. Nicole Vaughan, 24, a law student at New York University, was in a seminar about Jesus when someone sent her a message about Mr. Ledger.

Crikey. That makes me feel so much better about my own school's class Interpersonal Dynamics for Lawyers.

UPDATE: Dave Hoffman at Concurring Opinions picked up on the same quote, and tracked down the class at NYU, The Passion of the Christ: The Trial of Jesus. From the course description:

The Seminar will examine the historical context, the factual matrix and the legal issues concerning the trial(s) of Jesus by the Jewish and Roman authorities. Readings will include some of the principal primary sources and a selection from the vast seondary literature. For serious learners. Tons to read and plenty of hard work. Do not enroll just for curiosity.

That's right. "For serious learners. Tons to read and plenty of hard work. Do not enroll just for curiosity."

Transnational Law Blog

2008-01-22T11:33:00.000-08:00

In order to focus my blogging a bit more, I have recently started posting at Transnational Law Blog, a forum created by a group of students from Hastings that focuses broadly on issues in international law, whether public or private.

I have mostly focused on posts regarding my law review comment, which is a comparison of third party dispute resolution mechanisms in international private contracts and in international treaties. The first in this series is on arbitration in international commercial contracts. The follow-up post is on Medellin v. Texas and the Supreme Court's apparent reluctance to allow third party dispute resolution mechanisms in international treaties. As I post further comments, I will make sure to note them here.

USF Beats Boalt!

2008-01-10T13:12:00.000-08:00

I blogged earlier about USF's high California Bar passage rate for first-time takers on the July 2007 exam (85%). And I cautioned, of course, that we will have to look at how we did relative to other schools. But now the data for the other schools are out.

USF came in fourth, ahead of Davis, Hastings, and 3% points higher than The Law School Formerly Known As Boalt Hall!

Well done, USF Class of '07!

Update: Armen over at Nuts & Boalts has some good-natured sour grapes in regards to the news (or maybe not so good-natured?).

What if the worst-case scenario happened in Pakistan?

2007-12-31T15:01:00.000-08:00

Over at Opinio Juris, Prof. Julian Ku links an article in the UK’s Herald that noted that US Special Forces were on standby to enter Pakistan and secure the nuclear warheads should civil unrest threaten the Musharraf regime. Ku calls this plan a “sensible precaution” but opines that it would be “almost certainly illegal under international law.”

My final exam in Public International Law a few weeks ago posited exactly this scenario: a takeover in Pakistan by fundamentalist elements including Al Qaeda and Taliban. My task, as Deputy Legal Advisor at the Department of State, was to write a memo outlining the legal basis for entering to secure the weapons as well as a possible full-blown invasion if necessary.

The rationale I gave was that such an action was justified under our right to self-defense from an imminent armed attack, as established under customary international law (e.g., the Caroline Doctrine) and under Article 51 of the UN Charter. Under the Caroline Doctrine as articulated by Secretary Webster in 1842, US policy has been that anticipatory self defense may take place in cases where the necessity of defense is instant, overwhelming, leaves no choice of means or time for deliberation. I think there is a strong argument that this scenario presents such a case.

There are two characteristics of this hypothetical scenario that lead to its legality that are not present in other cases (such as, say, Iran, North Korea or Syria). One is the confirmed presence of nuclear weapons and advanced rocketry. The second is that we are currently in a state of unprovoked belligerency with Al Qaeda and the Taliban, and we can reasonably expect that any fundamentalist takeover in Pakistan would involve significant elements of these groups. I think there is a reasonable argument that if this takeover occurred, there would be a high likelihood of an imminent nuclear attack (if the US didn’t immediately secure the weapons, I doubt Al Qaeda would wait around until there was a Security Council resolution or we established our resolve... they would launch as soon as it was technically feasible).

This is different from the Bush preemption doctrine, which is aimed at preventing states which may one day both secure WMD’s and become belligerent with us. Like many, I find that approach to be of dubious legality. However, here we would be dealing with a regime that has already attacked, and with certain nuclear capabilities.

Of course, international law is by no means an exact science. Determining whether something is legal or not is really just a process of making arguments and letting political processes and public opinion be the judge. However, my feeling is that when reasonable people such as Prof. Ku see an armed action as a “sensible precaution” there is a good argument to be made that it is also a legal precaution.

Building a Better Legal Profession (really?)

2007-12-12T16:06:00.000-08:00

Of course, we all know that while a good number of the people who are admitted to Stanford Law are really, really smart, some of them are going to end up being fairly useless. For example, take the Stanford students behind Building A Better Legal Profession, a supposedly "national grassroots organization" dedicated to "reforming the legal profession" (which seems to mean not making corporate lawyers work so hard, and increasing diversity among associates and partners at BigLaw firms).

My main critiques:

1) You are not "grassroots." You are enrolled at Stanford Law.

2) BigLaw is not "the legal profession." Less than 10% of lawyers work in the AmLaw 100. Only a Stanford student would think that their rarified air was "the legal profession."

3) Poor, poor corporate lawyers. I am amazed by some law students' passion. Even during their first year, many students are active in organizations that advocate on behalf of the poor, or work for political candidates, or lobby on behalf of equality under the law. That is why I am completely unimpressed by people who are dedicated to making life easier for corporate lawyers from elite schools. You're gonna get paid almost 200K (with bonuses) your first year.... quit yer whining. Nobody cares.

4) Cross-register for a statistics class: The group posts "rankings" of law firms based on their supposed performance on a number of indicators. At the moment, they seem to only focus on diversity rankings, and made a big splash in the media when they released these rankings over the summer. I'll admit, increasing diversity in corporate law firms is somewhat more worthwhile than the general "better legal profession" schtick, but if you are going to rank firms, make sure you know what you are talking about.

For example, one of their main statistical analyses is measuring the "female opportunity gap" between associates and partners. Presumably, this ranking is offered to show how poorly a firm performs at promoting women. But the statistical method is flawed. I doubt the percentage of female partners vs. the percentage of female associates is in any reliable way correlated to a firm's willingness to promote women (there are many other factors intervening, not least of which is what percentage of associates that are promoted to partner regardless of gender). For example, look at Baker and McKenzie in Northern California. They have far and away the highest percentage of female partners (32.7%) and are a close second in highest number of female associates (60.7%, behind Morgan Lewis' 61.6%). But, they rank 6th, right behind Skadden, which has 28.6% female associates and 16.7% female partners!

Since these clowns decided that weighing the amount of female partners against the amount of female associates somehow would serve as a proxy for whether a firm was doing a good job of promoting women, if anyone actually gave a hoot about these rankings, the best way to improve your ranking would be clear: decrease the amount of women you hire as associates!

Of course, not much should be expected when you describe your ranking methodology as cut, paste and rank. But, you guys go to Stanford: even if you are in law school and thus innumerate, you are embarrassing Sergei and Larry. If you spent half the time on your analysis than you apparently did on taking artistic photos of yourselves and making a ruckus in the press (in my opinion, seems more about self-promotion than anything else), maybe your rankings would have some degree of relevancy. If you are going to make a public claim that your rankings should mean anything whatsoever, then you must rank responsibly.

5) Capitalization. You are law students. Learn to use capital letters. Yes, I know you don't have to and law firms will still slobber all over you in hopes that someday one of your classmates will give you work, but try to pretend that you are serious people.

UPDATE: And look at that curve! BABLP ranks firms by quintiles and applies the standard A through F rating, with A's going to the top quintile and F's to the bottom quintile. Coming from students at the law school with perhaps the most grade inflation of them all (a whopping 3.4 median), isn't that a bit harsh?

Class of '07 knocks the cover off the bar

2007-12-07T13:41:00.000-08:00

USF first-time bar exam takers in the the July '07 exam achieved a 85% pass rate, compared to a 76% pass rate overall for exam takers from CA ABA-approved schools. Data on other schools is not yet available.

In comparison, in July '06, USF had a 74% pass rate, while the CA ABA rate was 73.7%. That year, Boalt was 85%, and Stanford 89%.

Handy comparison chart (stats available here):

Year------CA ABA------- USF--------Boalt--------Hastings
2007..........76%..................85%........... ?.................... ?
2006..........73.7%.............. 74%.......... 85%............. 84%
2005...........70%................ 74%.......... 87%............. 84%
2004.......... 69.4%............. 65%.......... 87%............. 81%
2003.......... 69.5%............. 65%........... 89%............ 78%
2002.......... 72.2%.............. 67%.......... 85%............. 78%
2001........... 79%................. 73%.......... 90%............ 84%
2000........... 74.3%............. 73%........... 94%............ 81%
1999............ 69%................ 72%........... 85%............ 79%
1998............ 72.1%............. 68%............91%............ 82.8%
1997............ 82.4%.............86.5%......... 86.4%........ 85.5%

Statistical anomaly? It's clear that if it is, it's a big one. In 1997, we certainly beat the curve, but it wasn't a huge percentage over the statewide average. The fact that this year we made a huge gain in what was a modest increase statewide, combined with the increases in '05 and '04, suggest that USF is reaping success from doing something a little differently.

But what is it? Is it the instruction, or the incoming LSAT/GPA's?

Boumediene v. Bush

2007-12-05T04:28:00.000-08:00

The Supreme Court will hear oral arguments today in Boumediene v. Bush, the latest in a series of cases seeking to establish the scope of the rights of the Guantanamo Bay detainees. One of the issues before the Court in this case is whether non-citizens detained as enemy combatants have a constitutional right to challenge their detention in federal court. To put that in the simplest terms possible, the issue is whether the US government has to give a reason to a judge as to why it is holding a person in prison, or if it can simply lock the detainees up (for what is now six years and counting) without providing any justification whatsoever.

Marty Lederman has this post at Balkinization summarizing the legal issues in Boumediene. But it was his description of the appellants that stands out the most to me:

They were not captured fighting U.S. forces in Afghanistan or, like Hamdi, surrendering a weapon there. Instead, they are Algerians who immigrated to Bosnia and Herzegovina during the 1990’s. Five of them are Bosnian citizens. On 9/11/01, each was living with his family in Bosnia. None is alleged to have waged war or committed belligerent acts against the United States or its allies. According to the Boumediene brief, they were arrested by Bosnian police in October 2001, purportedly on suspicion of plotting to attack the U.S. Embassy in Sarajevo. But the Bosnian authorities had no evidence for this charge; instead, they acted under pressure from U.S. officials, who threatened to cease diplomatic relations with Bosnia if the petitioners were not arrested. On January 17, 2002, the Supreme Court of the Federation of Bosnia and Herzegovina, acting with the concurrence of the Bosnian prosecutor, ordered the petitioners released because a three-month international investigation (with collaboration from the U.S. Embassy and Interpol) had failed to support the charges on which the petitioners had been arrested. On the same day, the Human Rights Chamber for Bosnia and Herzegovina, established under the U.S.-brokered Dayton Peace Agreement and staffed by judges from several European countries, issued an order forbidding the prisoners’ removal from Bosnia. Later that day, however, as the Boumediene petitioners were being released from a prison in Sarajevo, Bosnian police acting at the behest of U.S. officials (and in defiance of the Human Rights Chamber’s order), re-seized them and delivered them to U.S. military personnel, who transported them to Guantanamo, where they have been held for the past six years, without contact with their families.

These are the persons whom our government believes that it can continue to detain without so much as stating the reasons why they can do so before a judge. The fact that we continue to have any moral authority at all in this world is a testament to every executive administration this country has had prior to January 2001.

Law school is a mad, mad, mad world

2007-12-04T01:33:00.000-08:00

My Con Law exam was this afternoon. I went to sleep early this evening.

I just woke up, and thought I was having a nightmare. But I wasn't. In my dreams, I had managed to piece together (through the fog of the wine and Tylenol PM that I took to get me to sleep) that the Tenth Amendment only serves as a bar to the commandeering of state resources when Congress acts pursuant to the powers that come before the Tenth (and possibly only the Commerce Clause). However, it almost certainly doesn't apply to powers under 14th Amendment section 5, which is the authority behind a RFRA-like statute where I applied a Printz analysis on the exam this afternoon.

Aargh. Not only did I know that, but I really knew that. My heart was pounding so hard I couldn't go back to sleep.

So now it is 2 AM, and I am sitting up and working on my Public International law take-home exam, which is on (redacted for honor code purposes), which is an area where I skipped some of the reading in the hopes it would not be the topic of the exam. But it is. So, here I sit, reading my PIL textbook.

I can't wait to go back to the working world.

Books I would like to read if I wasn't always reading cases

2007-11-30T03:17:00.000-08:00

So, uhhh...

If anyone is looking for Xmas gift ideas for me, these might work:

The Savage Detectives, Roberto Bolano
The Quiet American, Graham Greene
A Theory of Justice, John Rawls

And, if anyone has other recommendations, please let me know.

I love that crazy old coot

2007-11-30T02:57:00.000-08:00

I might have voted for John McCain had he been the Republican nominee in 2000. Thankfully, he wasn't, because he has since proven to be pretty batty.

But, I gotta hand it to him: regardless of the number of issues on which we might disagree, I admire him for following his conscience. Sometimes his conscience leads him towards threatening war with Iran, and that's not so good. But sometimes he challenges his own party in ways that they really need.

For example, in the last debate, on the topic of immigration, McCain had this to say: “We need to sit down as Americans and recognize these are God’s children as well, and they need some protections under the law, and they need some of our love and compassion.” Pretty good stuff, considering the GOP field was at that point attacking each other over who had coddled immigrants the most and was therefore unworthy of nomination.