Burg Law

The root causes of Somali piracy

2009-04-21T08:54:00.005-04:00

Another group presented in my Post-Conflict Justice class yesterday, this time on Somalia. The country has led a lot of headlines lately, primarily because pirates off the coast captured an American ship and took Capt. Richard Phillips hostage. Now that Phillips has returned home and everyone is sure to stop paying attention, the Pentagon has announced that it plans aggressive military action against the pirates. We might as well declare war on sneezing in spring.

Somali piracy is merely a symptom of the massive problems Somalia faces. Despite sharing a common language and ethnicity, the country's rival clans have warred with each other for decades, a trend perpetuated by the western European countries that colonized the Horn of Africa. This didn't get much attention until the 1990s, when the U.S. and U.N. intervened, with good intentions and horrific results. Now, there is anarchy, and a clan formerly known as the Islamic Courts Union, now Al-Shabaab, has moved in to exploit it and place the entire country under Sharia law.

The people of Somalia had not been fed, and we gave them guns. Then other countries, recognizing Somalia's weakness, stole their fish and used their coastline as a toxic waste dump. What, honestly, did we expect? Before we start attacking Somalians again, we would do well to learn from our mistakes. We don't need another Black Hawk Down. Piracy is wrong, and stopping it would be nice, but it won't happen until we address the real causes. These pirates are viewed as heroes in Somalia because they're the one group who can put food on the table. If we go after them now, history will repeat itself and no one will come out ahead.

Think of Haiti

2009-04-17T11:33:00.003-04:00

Two papers are calling my name on this gorgeous Friday in Virginia, but I have to mention Haiti. On Monday a classmate and I gave a joint presentation about the country in our Post-Conflict Justice/Rule of Law class. We each spent at least 10 or 12 hours researching the country, which is full of great stories — being the world's #1 sugar producer and home of the world's only successful slave rebellion — and failures, such as a history of overthrown leaders and an impoverished people with little hope for the future.

This week Secretary of State Hillary Clinton visited Haiti. Now she's reminding the world that as the economic crisis hits us all, it hits the poor the hardest. Nowhere in the western hemisphere is there a place as poor as Haiti. They do not deserve the poverty, did not bring it on themselves. Their poverty is the result of a series of leaders, notably Papa Doc and Baby Doc Duvalier, who have taken advantage of a largely illiterate public and embezzled millions at the people's expense. The country's institutions remain in shambles, more than two decades after Baby Doc was exiled.

As so many people continue to feel sorry for themselves here in the United States — some rightfully so, of course — we would still do well to look southward, at a nation, Haiti, that desperately needs our help.

Vermont becomes #4; Watch D.C. next

2009-04-07T14:33:00.005-04:00

The Vermont Legislature legalized same-sex marriages today, overriding Gov. Jim Douglas's veto of the bill by the slimmest of margins in the Vermont House of Representatives, 100-49. The bill required 100 votes to pass; a key Democrat switched his vote after voting against the bill last week.

In 2000, Vermont became the first state to legalize civil unions (as the NY Times story notes, New Jersey and New Hampshire later did the same). Gay rights advocates in Maine and Rhode Island have pushed for the legalization of same-sex marriages, arguing that civil unions do not go far enough, and make gay couples appear unequal.

I agree. This post discusses the differences between civil unions and marriage, and there are many. Because the federal government does not recognize civil unions, such couples cannot file taxes jointly or enjoy benefits conferred to married couples. In a 1997 letter responding to a former Illinois representative, Henry Hyde, the General Accounting Office identified 1,049 federal laws "in which marital status is a factor." The office divided these into 13 categories:

Social Security and Related Programs, Housing, and Food Stamps
Veterans' Benefits
Taxation
Federal Civilian and Military Service Benefits
Employment Benefits and Related Laws
Immigration, Naturalization, and Aliens
Indians
Trade, Commerce, and Intellectual Property
Financial Disclosure and Conflict of Interest
Crimes and Family Violence
Loans, Guarantees, and Payments in Agriculture
Federal Natural Resources and Related Laws
Miscellaneous Laws

Numbers three (taxation) and four (federal and military benefits) contain 179 and 270 provisions, respectively. Benefits available to married couples include deductions of estate taxes, gifts of property, government-assisted relocations, as well as health benefits, life insurance benefits, and retirement annuities for surviving spouses. None of these benefits are available to couples in civil unions. Federal employees with a sick spouse are also entitled to unpaid leave, a benefit not conferred on single persons, or persons in a civil union.

Civil unions will not last. Within five or ten years, most of the blue states — and some red ones, too — will have legalized gay marriage either by legislative fiat (Vermont) or through the courts (Massachusetts, Connecticut, and Iowa). This is a very good thing.

In what may become the most publicized battle for same-sex marriage, the District of Columbia City Council also voted today, 12–0, for a bill to allow recognition of gay marriages. Mayor Adrian Fenty supports gay marriage, but for the bill to become D.C. law, Congress must give its approval.

The California Supreme Court is still weighing its decision whether to uphold Proposition 8, a constitutional amendment which banned gay marriage in the nation's most populous state. Also watch Minnesota to see if it's the next state in the Midwest to legalize same-sex marriage.

What a difference Iowa court has made

2009-04-05T09:55:00.002-04:00

A UCLA study says that Iowa's decision to legalize same-sex marriage will result in a net economic gain of $5.3 million, today's Des Moines Register reports:

- Income tax: $1,254,000
- Inheritance tax: -$1,391,000 (Iowa would lose money because of a marital deduction for state inheritance taxes)
- Sales tax: $2,668,000 (annually for the first three years)
- Public assistance savings: $2,786,000

TOTAL: $5,317,000 net gain

Source: The Williams Institute at the University of California, Los Angeles

This morning I wrote this letter to my old newspaper, the West Branch Times, highlighting the difficulties that citizens have had in obtaining the rights granted to them by constitutions:

Oh, what a difference a court can make.

In January 1857, 21 Republicans and 15 Democrats met in Iowa City to draft a new constitution for the state of Iowa, focusing primarily on banking and the rights of African-American men. When Iowans ratified the document, they agreed to allow banking, but flatly denied the vote to black men. Iowa women would not get the full right to vote for another 63 years, with the passage of the 19th Amendment to the U.S. Constitution.

Despite this obvious discrimination in the original Iowa Constitution, the drafters included an important provision as Article 1, Section 6: "All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens." With the 1857 ratification, Iowa's version of the equal protection clause passed 11 years before the 14th Amendment to the U.S. Constitution, which granted equal protection of the laws to all U.S. citizens — at least in theory.

But as so frequently happens, rights granted to people in the Constitution did not become reality until a court said so. Not until 1954 did the U.S. Supreme Court decide that the 14th Amendment meant that black schoolchildren could attend the same public schools as white schoolchildren. Only in 1967 did that same Court hold that equal protection meant blacks and whites could marry, striking down a heartless Virginia law. And not until 2009 did the magnificent Iowa Supreme Court recognize that same-sex couples could enjoy a right, marriage, that most certainly belongs equally to all citizens.

Because the Iowa Supreme Court can recognize rights in the Iowa Constitution that the U.S. Supreme Court has not yet found in the 14th Amendment, same-sex couples in 47 states now look to Iowa with envy. Since the decision last Friday, I have worn my black and gold wardrobe with pride. I come from a place that recognizes rights, "even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice."

As is so often the case, today I am proud to be an Iowan.

Same-sex marriage will be legal in Iowa!

2009-04-03T10:48:00.005-04:00

Citing Marbury v. Madison, McCulloch v. Maryland, Lawrence v. Texas, Dred Scott v. Sanford, and Brown v. Board of Education, the Iowa Supreme Court today ruled that the state statute defining marriage as between a man and a woman is unconstitutional under the Iowa Constitution. Beginning in three weeks, same-sex couples will be able to marry in Iowa. (Read the full, awesome, unanimous opinion here. No. 07–1499.)

I'm going to quote some of the best excerpts:

In fulfilling this mandate under the Iowa Constitution, we look to the past and to precedent. We look backwards, not because citizens’ rights are constrained to those previously recognized, but because historical constitutional principles provide the framework to define our future as we confront the challenges of today.

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality. ...

Finally, it should be recognized that the constitution belongs to the people, not the government or even the judicial branch of government.

p. 15.

The primary constitutional principle at the heart of this case is the doctrine of equal protection. ...

The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change. As Justice Oliver Wendell Holmes poignantly said, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” ...

So, today, this court again faces an important issue that hinges on our definition of equal protection. This issue comes to us with the same importance as our landmark cases of the past. The same-sex-marriage debate waged in this case is part of a strong national dialogue5 centered on a fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans. This class of people asks a simple and direct question: How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage?

pp. 16-18.

Therefore, with respect to the subject and purposes of Iowa’s marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples. Society benefits, for example, from providing samesex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples.

In short, for purposes of Iowa’s marriage laws, which are designed to bring a sense of order to the legal relationships of committed couples and their families in myriad ways, plaintiffs are similarly situated in every important respect, but for their sexual orientation. As indicated above, this distinction cannot defeat the application of equal protection analysis through the application of the similarly situated concept because, under this circular approach, all distinctions would evade equal protection review. Therefore, with respect to the government’s purpose of “providing an institutional basis for defining the fundamental relational rights and responsibilities of persons,” same–sex couples are similarly situated to opposite–sex couples.

pp. 28-29.

The case was decided on state constitutional grounds, so it is impossible for Polk County to challenge the ruling in the U.S. Supreme Court. Short of a state constitutional amendment, which simply can't be done in three weeks, this ruling will remain the law in Iowa. Same-sex couples (apparently there are 5,800 of them in Iowa) will start marrying.

The County advanced a number of arguments in support of its claim that the state statute should be upheld: maintaining traditional marriage, promotion of optimal environment to raise children, promotion of procreation, promoting stability in opposite-sex relationships, and conservation of resources. First, the court found no governmental interest in maintaining traditional marriage. Second, it found that same-sex parents fare just as well as opposite sex ones in raising children. It also found that the exclusion of same-sex marriages did not promote procreation or stability in opposite-sex relationships. Finally, it found that the state's interest in conserving resources was not substantially improved by keeping same-sex marriages illegal.

The court then addressed "the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage." It found that even though a religious objection is not sufficient to uphold the statute, even some religions support same-sex marriage:

This contrast of opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa’s same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them.

p. 65. Citing the separation of church and state, the court makes clear that this case must be decided on equal protection grounds, and not on free exercise of religion grounds.

Finally, perhaps the best sentence of the whole opinion, on p. 69: "All justices concur."

Today's a proud day to be an Iowan.

Spring and organic vegetable gardens

2009-03-22T08:29:00.003-04:00

Six weeks of classes remain in my second year of law school. Tomorrow we begin selecting classes for fall of our third year, so today I grapple with whether to take tedious courses that may help me pass for the Bar exam, or invigorating courses and clinics that will help me stay motivated to finish law school and become a lawyer. Both goals are important, and my fall schedule will probably reflect a little of each one.

To mark the first days of spring, the daffodils bloom here in Williamsburg, even as frost continues to cover the grass each morning. I ran the annual Ali's Run 5K yesterday morning in crisp, cool air.

A hundred and eighty miles up the road in Washington, the president continues to grapple with the financial crisis. I'm as appalled by anyone by the AIG bonus fiasco, and the capitalist money-grubbing it stands for. President Obama certainly has his hands full. But this week, the First Lady has identified another critical cultural issue that deserves at least as much attention — food.

Michelle Obama has begun work on an organic vegetable garden on the South Lawn of the White House, citing several goals. The garden is meant to provide healthy food for her daughters, feed Washington's poor people, and to please an eager kitchen staff longing for fresh ingredients. More importantly, however, the garden addresses a national issue: our long overdue need to think about what we eat.

Michael Pollan, author of The Omnivore's Dilemma and a longtime advocate for changing the nation's food policies, first argued for a White House vegetable garden back in 1991. Instead of worshipping our chemically treated, unnatural lawns, he said, we should either let our yards return to their natural state, such as wetlands or meadows, or turn them into gardens and orchards. This helps the environment but just as important, it also helps our stomachs. We are a nation of obese people, and although we continue to experiment with diet and exercise fads, even cutting back on fat and red meat, the problem continues to get worse, not better.

Michelle Obama has put the focus back on the larger problem: we eat too much processed food. The prime culprits are partially hydrogenated soybean oil, a dangerous preservative found in everything from Oreos to peanut butter, and high fructose corn syrup, the primary sweetener in Coke and Pepsi. We can put the blame on at least four groups of people for getting us into the processed food diet. First, companies like Archer Daniels Midland (sorry, Cedar Rapids) have successfully lobbied the government for huge subsidies to prop up high fructose corn syrup production. They've also engaged in a shameless ad campaign. At one point, our consumption of high fructose corn syrup even passed our sugar consumption, though that trend has recently started to go the other direction. But ADM could only be successful with help from the second group: members of Congress and the USDA, which have only exacerbated the problem by granting the subsidies and failing to enact helpful regulations. Third, we can blame the food companies that make highly processed foods, but even they are starting to turn things around (in Canada, too). Some local governments and hospitals are doing their part as well. Finally, though, we can blame ourselves for buying and eating the junk. It's cheap and it's easy, but it only makes us fat.

The good news is that the solution is easy. We can do what millions of Americans do already: grow much of our own food, go to the grocery store more often for fresh ingredients, and toss all the processed foods from our cupboards. Thanks to Michelle Obama for drawing attention to food. That reminds me, I'm hungry.

Live-blog: W&M Law ACLU hosts defense attorney David Baugh

2009-03-04T12:58:00.021-05:00

Today I'm live-blogging from Room 133 at the Marshall-Wythe School of Law. Our ACLU chapter is hosting David Baugh. Baugh recently left private practice to serve as the Richmond Capital Defender, working for the Virginia Indigent Defense Commission. While he was in private practice he often served as a cooperating attorney for the ACLU of Virginia. His most noteworthy case with the ACLU was when he represented the Imperial Wizard of the Ku Klux Klan on a First Amendment criminal case. (Baugh is African-American.) Baugh is the son of a Tuskeegee Airman, and has a wealth of stories.

1:02 p.m.—Our chapter president, Tom Fitzpatrick, has introduced Mr. Baugh.

1:03 p.m.—"It's hard to have faith." The hardest thing to do is to teach a child to float. If you can't float, you're not deep enough in the water. Baugh's lesson: You've got to have faith in the Constitution.

1:04 p.m.—When Madison wrote the Constitution, he didn't say that certain people have rights. Everybody has those rights. Freedom of Expression: If someone else doesn't have the right to free expression.

1:06 p.m.—It's possible to come out of law school, be $200,000 in debt, and never have studied the Bill of Rights! "The Bill of Rights is a brilliant document." Baugh says he has been a member of the ACLU since he got expelled from college. (He's wearing a red and gold ACLU pin on his lapel, where politicians tend to wear American flags.)

1:08 p.m.—"The Bill of Rights is brilliant. I think George W. Bush is an asshole and I wish he'd die. Do you know what I just said is illegal in 95% of the countries in this world?" Someone asks, "Even though he's not the president anymore? "You can say Obama's an asshole. It doesn't matter."

1:10 p.m.—"The only way to protect religion is to leave it alone. That's like Kung Fu crap. It's brilliant." We have the right to bear arms. The ACLU never seems to talk about that one. "I tell my students all the time: if Jews had weapons, there never would've been a Holocaust. If deer had guns, there would be no hunting season." The right of the people to bear arms is the right to rise up against the government.

1:12 p.m.—"If any of you thinks there's a superior race, spend an hour with a Klansman. Dumb as a rock."

1:14 p.m.—"I had no doubt in my mind that O.J. Simpson was guilty, that he did it. I also had no doubt in my mind that he shouldn't have been convicted." Baugh believes this because the prosecutor was biased, the judge wasn't very bright, and the trial was a circus.

1:15 p.m.—"Every time a lawyer tries a case and a defendant gets acquitted, the system gets a little stronger." A woman asked him last night: "David, don't you worry about those technicalities?" He replied, "Those 'technicalities' are the Bill of Rights!"

1:17 p.m.—"When I was studying the philosophy of law, I realized there are two forces at work in the criminal justice system. There is order, and there is freedom. ... Those two forces are constantly at war. Order has a lot of supporters. Freedom doesn't have a lot of supporters, so I chose to work on freedom." Then Baugh realized that there is a third force: Morality.

1:20 p.m.—Baugh enters discussion of Commonwealth v. Black, 538 U.S. 343 (2003), a First Amendment cross-burning case. He represented a KKK Grand Dragon. "Little did I know that when an African-American agrees to protect the First Amendment, all hell breaks loose," Baugh says. He says this gave him some stature with his kids, because the BBC started calling the house. "They realize you're not just the fat guy who cuts the grass anymore."

1:25 p.m.—Baugh's case was to attack the Virginia cross-burning statute as unconstitutional. At the Supreme Court arguments, Baugh says that Scalia said that burning a cross is like pointing a loaded gun, not speech. "And for the first time in ten years, Clarence Thomas asked a question. You could've heard a fly piss on cotton in that courtroom."

1:28 p.m.—On whether it was tough to defend a Klansman, Baugh says it's a resounding "no." He was defending the rules.

1:31 p.m.—"Nobody is so guilty of a crime that they shouldn't get a fair trial. Nobody is so guilty of a crime that the law can presume that they did it," Baugh said. A judge's job is not to make sure that the guilty get convicted and the innocent go free, but to follow the rules, he says.

1:38 p.m.—Baugh's discussing a case he argued in New York, the bombing of a U.S. Embassy. At trial, he said he told the jury that the issue was not whether the defendant should be executed, but whether they should kill him. The judge stopped him. "Don't say 'kill,' say 'execute.'" Why's that, Baugh asks? Because killing is illegal, and execution is legal. "Well, you know what? No law was ever broken in the Holocaust."

1:41 p.m.—"The ACLU is despised by most Americans because we advocate technicalities."

1:45 p.m.—Baugh was a prosecutor for five years, and in private practice as a defense attorney for 30 years. Now he's a capital defender. "I absolutely love going to work in the morning. I have a purpose."

1:48 p.m.—"It's a wonderful feeling to have a cause," Baugh says. "Find a purpose."

Philosophy of Law lecture: Jules Coleman

2009-02-24T13:03:00.028-05:00

1:04 p.m. - I'm going to try something new: live-blogging a lecture. This is a new lecture series on the Philosophy of Law here at the Marshall Wythe School of Law at William & Mary. W&M Law Professor Michael Steven Green is giving the introduction to Professor Jules Coleman. Coleman is the Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy at Yale University. Coleman is the author of The Practice of Principle, Risks and Wrongs, and Markets, Morals and the Law, as well as many other books and articles in the philosophy of law and tort theory.

Prof. Green says that Prof. Coleman is a giant in torts theory.

1:05 p.m. - Prof. Coleman takes the stage in Room 141. Prof. Coleman learned from Guido Calabresi, a distinguished professor of Coleman's who "had the wrong views." He says he teaches from Calabresi's notes, but with a caveat: he puts a negation in front of what Calabresi said. (NOTE: Calabresi taught at Yale, and was nominated to the Second Circuit Court of Appeals by Bill Clinton in 1994. He still sits there today.)

1:08 p.m. - When people think about the philosophy of law, they think about it in a normative way. Tort law is not that way. What is tort law? What is essential about it? How does it differ from criminal law, contract law and other kinds of law?

1:09 p.m. - A good theory of tort law should resonate with its participants. It should be hermeneutic — participants in the kind of law should recognize their practice in a good legal theory. "I'm trying to offer a theory of tort law that makes sense to the people who are participants in it," Coleman says.

1:11 p.m. - Economic analysis. Time to talk about bad luck. Bad luck leads to people having to absorb costs. What should we do about these costs? Two obvious things: one, we should try to minimize them. Another thing is to try to spread their costs.

1:12 p.m. - Tort law provides remedies to people who get injured. If you're an economist, you might look at tort law and say it's all about deterrence. That might be plausible, but it may not resonate with the participants in practice.

1:15 p.m. - "It's a good question to ask when you're trying to offer a theory of the law: What kind of explanation are you trying to offer?" Coleman says.

1:17 p.m. - Coleman is interested in the question: Should the theory of a certain area of our social life be responsible to what participants think?

1:18 p.m. - Coleman is skeptical about the application of his theory to theories about markets. "No one in their right mind" would think that market theories should depend upon what market participants think about markets, he says. The same is true of language, and speakers of it. Linguists and language theorists don't think that language speakers should have theories about language. Who would care about such theories? Well, maybe being a judge is different, Coleman says. A judge may have to have some level of understanding about the role that a judge plays in the law. "How is law different from other kinds of social engagement?" he asks.

1:22 p.m. - Coleman makes a joke. "You're in law school, you have competent teachers. I'm supposed to slip that in three times during the lecture. I've done it at 20 after, I'll do it again at 40 after ..."

1:24 p.m. - Coleman mentions that his theory is corrective justice. "Sounds good, doesn't it? What kind of justice do you stand up for? Corrective justice. As opposed to what? Incorrective justice." The audience laughs.

1:25 p.m. - Coleman provides the elements of torts: duty, breach, harm. He cites Justice Cardozo in Long Island R.R. But what makes these the elements of torts? What does a theory of torts try to accomplish? For most people who make theory about torts, he says, it's about trying to predict the outcome of cases. They're not trying to say why duty matters, why breach matters, etc.

1:28 p.m. - The economic theory of torts is uninteresting to Coleman, unless it has one more thing. Is it an accidental relationship between the theory and the outcomes of cases, or is there a mechanism at work that connects the theory to the outcomes of cases.

1:30 p.m. - "I actually think very highly of myself as a torts theorist," Coleman says. Now he makes a joke about being a psychotherapist, being aspirational, and being Jewish. A number of people are laughing. I'm typing furiously and I don't know the Jewish-psychotherapy connection, so I don't get it.

1:33 p.m. - Coleman is trying to engage a 1L, who's not laughing at his jokes. This lecture is being filmed, by the way. Not sure how or when it will be available.

1:34 p.m. - Coleman believes the paradigmatic tort is a wrong, not an accident. If I want to understand tort law, I should want to understand intentional torts, he says. Coleman switches gears to contracts and specific performance being the paradigmatic remedy for contracts. HYPO: Let's say I promise to paint your house ("very unlikely," he says). Someone comes up to him and says, you promised to paint my house, but you didn't paint my house. There's no reason for you not painting my house. Why does the person who asked for the house to be painted need to provide a special reason for having the painter paint the house? If you think that contracts are promises, you would think about why specific performance is appropriate, when it is appropriate.

1:40 p.m. - Coleman's making a joke, plugging his book because he has children in the arts and has to support them.

1:42 p.m. - When an economist looks at tort law, he sees three things: accidents, costs, and liability as a mechanism for shifting costs. "As a philosopher, I see more concepts, and different ones," Coleman says. "I see rights and wrongs. I see responsibility. I see costs as a mechanism for holding people accountable. I don't see costs at all. They're not primary to me. The notion of duty is primary to me, and an action contrary to a right is primary to me."

1:44 p.m. - When Coleman looks at tort law, he sees it as a subject already influenced by some working theory he has of it. He doesn't look at it in a completely normative, neutral way. In contracts, he wants specific performance. On the philosophical side, he says there are moralists in the theory of tort law. "I take great pride in the fact that no student of mine ever holds a theory that I hold," Coleman says. Even though he's a legal positivist, and legal positivism is the most common legal theory, he says that no student of his is a legal positivist.

1:48 p.m. - Coleman says that Richard Epstein is an institution, who cranks out legal ideas faster than anyone, and has views about everything.

1:52 p.m. - The lecture is going to have to end soon, sadly, because many students and professors in the room will have to attend 2:00 classes. Looks like there won't be time for questions.

Here are the next two lectures in the series (courtesy of the W&M Communications office):

March 19, 1 PM, Room 141: Michael S. Moore, Walgreen Chair and Co-Director, Program in Law and Philosophy, University of Illinois College of Law. Professor Moore is the author of Educating Oneself in Public, Placing Blame, and Act and Crime, as well as many other books and articles in the philosophy of law and criminal law theory.

March 26, 3:30 PM, Room 127: Lawrence A. Alexander, Warren Distinguished Professor, University of San Diego Law School. Professor Alexander is the author of Is There a Right of Freedom of Expression?, Whom Does the Constitution Command? (P. Horton co-author), and The Rule of Rules: Morality, Rules, and the Dilemmas of Law (E. Sherwin co-author), as well as many other books and articles in the philosophy of law, constitutional law, and criminal law theory.

1:55 p.m. - Coleman has given a summary of people doing philosophy of law — stuff he's interested in. He's giving a reading list, a sort of Who's Who in the Philosophy of Law today.

Williamsburg or Iowa — Which one is a Yankee Cesspool?

2009-02-22T09:51:00.005-05:00

Well, of course neither Williamsburg nor Iowa constitutes a "Yankee cesspool." But at least on the website of the Daily Press, Williamsburg's newspaper, this qualifies as a debate.

On Friday, the newspaper published a letter I wrote about a constitutional amendment in the Virginia General Assembly, that would have automatically restored voting rights to nonviolent ex-felons once they serve their time. (I first blogged about the Restoration of Voting Rights project last fall.) You can read my letter here.

What startled me was the response the letter got. For a short time on Friday, it was one of the most viewed items on the Daily Press website. By Saturday, readers had left a total of 43 comments. Let's just say they weren't all supportive of the idea that once a person has completed his prison sentence, he should get his rights back. Never mind that this is the law in 48 of the 50 states — only Kentucky and Virginia lag behind. Here's a sample of the comments:

#6: Has anyone ever noticed how 98.7% of the left wing liberal letters to the editor come out of my hometown of Willamsburg?

We have so many yankees living here now it's like living in New York City.

They bring their left wing liberal socialist attitudes with them. Yankee go home !!!

#12: ... If you feel so strongly about this maybe you should be in the lower income neighborhoods counseling black youths against committing criminal acts and less time in lavish Williamsburg.

#13: Williamsburg is a cesspool of liberals. If those elitists had to live in Hampton or Newport News in the same neighborhoods as the felons, they would have a different attitude.

#35 (in response to #13): They had sense enough to move from the Yankee cesspool and move to Williamsburg.

#19: ... [T]he fact is that one third of the Blacks in this are have substantial criminal records and have dropped out of school. To participate in a Republic, you need to be an informed voter; hence the Founding Fathers when evaluating the intellectual capacity of a certain class decided they would count as 2/3s. So it's one man, 2/3d vote. Besides they don't pay taxes, they are paid by the taxpayer.

You get the idea. My original point in the letter, the one that stirred the pot, was "that racism persists even today." I stand by that point.

On a more exciting note, the United States Supreme Court has agreed to hear a monumental case in the world of criminal justice, determining whether criminal defendants have a constitutional right to DNA evidence that could definitively show their innocence (or strongly implicate them in the crime). An Alaska man who was convicted of kidnapping and rape has asked the courts for access to sperm left in a condom the night that two men abducted a prostitute, raped her, and left her for dead on the side of a road. The DNA could almost certainly prove whether the man participated in this horrible crime. At trial, the driver of the car (who had already pleaded guilty) said that William Osborne rode in the passenger seat that night, and participated in the crime. Osborne's trial lawyer never asked for access to the DNA, and he was convicted. On appeal, however, a new lawyer — presumably, one who believes that Osborne is actually innocent — argued that Osborne has a right to this critical scientific evidence. The Ninth Circuit Court of Appeals agreed, citing a pivotal Supreme Court case, which says that criminal defendants have a right to evidence that tends to show that the defendant did not commit the crime. The Court decided that case, Brady v. Maryland, back in 1963 — long before DNA evidence came about.

If the Court finds that Osborne does have a constitutional right to the DNA evidence, then criminal defendants across the country will be able to ask for this sort of evidence. This would be a fantastic development, because it will likely result in scores of exonerations. The government will be forced to disclose DNA, and innocent people will be set free. One would think that states and the federal government would support this, but they do not want to pay for the testing. So, the states and the feds argue that defendants do not have a constitutional right of access to DNA evidence. I disagree.

The Supreme Court will hear arguments on March 2 in William Osborne's case, District Attorney's Office for the Third Judicial District v. Osborne. The Washington Post has a good story about the case, and SCOTUSblog provides a detailed look at the facts.

Good Eggs and Research Papers

2009-02-20T11:33:00.002-05:00

I'm working on three research papers at the moment, not an uncommon task for a second- or third-year law student. This gives me the pleasure (no, really) of spending inordinate of time reading news and law review articles, cases, and statutes which may or may not be helpful to my cause. Doing research for a legal paper involves a hodgepodge of systematic exhaustion and serendipity. The latter comes when you find that amazing piece of work that seems as if the author wrote it just to help you with your particular project.

The three papers include my Note, a criticism of the portion of Virginia death penalty law that allows people to die if a jury determines they pose a "serious continuing threat to society." I've been working on this since August, and it's finally due in two weeks. In the last few days, I have completely revamped this 42-page article with the help of a fantastic, brilliant lawyer, writer and friend. The second paper is a 15-25 pager for my Death Penalty seminar. My outline is due Monday. Today I'm reading Albert Camus' terrific essay, Reflections on the Guillotine, for inspiration and to get started on what I think will turn into a law student/philosopher/former journalist's view on why America continues to execute criminals when most of the rest of the Western world quit decades ago. The final paper is a 25-40 pager I'm just starting for my Post-Conflict Justice/Rule of Law class. This week I switched topics, ultimately deciding to write about the new legal rights given to victims in the Khmer Rouge trial.

My original topic, and my reason for writing today, was the conflict in Gaza between Israel and Hamas. I could not come up with a post-conflict thesis for my paper, in part because the conflict has not ended. I did, however, become even more interested in the crisis and the myriad problems that both sides face. Perhaps coincidentally, my girlfriend posted this fantastic article on her Facebook profile. A Japanese novelist, Haruki Murakami, faced the difficult decision of whether to go to Israel and accept a literary award, at a time when Israel's popularity in the world continues to plummet. In his amazing piece for Salon, he creates an apt metaphor for the conflict:

"Between a high, solid wall and an egg that breaks against it, I will always stand on the side of the egg."

Of course, Israel, with its superior weaponry and U.S. backing, is the wall and the Palestinians are the egg. Or do the Israeli government and Hamas together form the wall, making Israeli and Palestinian civilians the egg? Haruki leaves an important ambiguity there, one worth pondering.

A first in international law

2009-02-11T18:27:00.005-05:00

One of my classes this semester is International Criminal Law, a burgeoning field of law that began in earnest after World War II, with the Nuremberg and Tokyo Tribunals. When most people think of criminal law, they think of crimes like murder, robbery, theft, etc. There are hundreds, if not thousands, of domestic crimes, and they vary by state and country.

International crimes, on the other hand, are few — but they are hefty. After Nuremberg, there were essentially three international crimes: war crimes (breaking the rules of war, a series of treaties that includes the Geneva Conventions), genocide (systematically killing a group of people because of their ethnicity or religion), and crimes against humanity (engaging in systematic persecution, torture, rape, or other inhumane acts as part of a governmental policy). A fourth international crime, aggression, is still in development, and is not used as often as the others.

Most international crimes have been prosecuted by ad hoc tribunals — courts set up to deal with international crimes after they have occurred. This has been the case for situations like the former Yugoslavia (the ICTY) and Rwanda (the ICTR). The field of international criminal law got a huge boost in 1998, when 120 countries signed a treaty containing the Rome Statute, which established a permanent, forward-looking International Criminal Court. The court has its permanent seat at The Hague, Netherlands, and operates independently — for the most part — of the United Nations.

(Although the Clinton Administration helped draft the Rome Statute, the Bush Administration and Republicans in the Senate refused to ratify the treaty, so the U.S. is not a member of the International Criminal Court.)

This is just a little background to help explain what's happening today, which is a first in international criminal law. The ICC has issued an arrest warrant for Omar al-Bashir, the president of Sudan. He is accused of war crimes, genocide, and crimes against humanity. Obviously it's difficult to arrest a sitting president, so it's not at all clear when or if that will happen. But he has been indicted, and an ICC prosecutor is waiting for Bashir in The Hague, should he somehow be delivered. For a depressing look at what has happened in the Darfur region of Sudan on Bashir's watch, go to savedarfur.org.

What happens next may depend on the actions of five key nations: China, France, Russia, the U.K., and the U.S. These are the five permanent members of the UN Security Council. If the Security Council so chooses, it may permanently delay Bashir's prosecution. As the Times article suggests, some people believe that it could be detrimental to any peace process in Darfur if Bashir is extradited to The Hague and put on trial. That could lead to many more years of chaos in Sudan. But it would also likely mean the first prosecution of the sitting president of a country — a revolution in international law.

UPDATE: Turns out the Times article may have been a bit premature. The Associated Press reports that the ICC is denying that its judges have made a decision to issue a warrant for Bashir's arrest.

SFIP & BLSA Death Penalty Symposium

2009-02-07T20:01:00.008-05:00

The William & Mary Law chapter of Students for the Innocence Project and the Black Law Students Association co-sponsored the second annual Death Penalty Symposium on Saturday, Feb. 7 at the law school. The forum featured capital trial and appellate lawyers and John Thompson, who was convicted of a crime he did not commit and was exonerated in 2003 after 18 years in prison, including 14 on death row.

Judge Tommy Miller, a federal magistrate judge in Norfolk, moderated the symposium and provided opening remarks on the history and constitutionality of the death penalty in the United States.

Miller said a conversation about the death penalty is highly relevant. The State of Maryland is considering abandoning the death penalty. There were recent editorials on the topic in both the Washington Times and Washington Post, with each paper taking opposing sides of the debate.

“It always puzzled me why the death penalty is considered part of the conservative philosophy because conservatives generally don’t believe the government can get anything right, so why should they believe [the government] would get the death penalty right?” Judge Miller said.

Miller said the first legal execution in the United States took place in 1608, just five miles down the road at Jamestown Colony. The death penalty was very much in vogue in England, he said, and when we drafted the Constitution, we included the Eighth Amendment — “nor shall cruel or unusual punishment be inflicted.”

The case of Furman v. Georgia, 408 U.S. 238 (1972), declared the death penalty unconstitutional as applied. At the time it was announced, the opinion was the longest in Supreme Court history, and included opinions by all nine justices.

The death penalty returned with the Court’s decision four years later, in Gregg v. Georgia, 428 U.S. 153 (1976). That decision, 7-2, held that changes Georgia had made to its death penalty scheme were sufficient for the system to be constitutional.

Since Gregg, the Court has narrowed the situations in which the death penalty can be used. It cannot be used for certain crimes, such as the rape of an adult woman, Coker v. Georgia, or a child, Kennedy v. Louisiana; or for certain defendants, such as juveniles, Roper v. Simmons, the mentally ill, Atkins v. Virginia, or the insane, Ford v. Wainwright.

The arguments against the death penalty include arbitrariness. This can take place at many levels — the police who investigate the crimes, the attorneys who prosecute the offenses, the judges who oversee the cases, the juries who hear them, and the appellate judges who take up the cases on review. One recent example is the case of Jackson v. Commonwealth, 255 Va. 625 (1998).

The Supreme Court decided an important death penalty case last year in Baze v. Rees, which upheld the constitutionality of Kentucky’s system of lethal injection. In that case, however, Justice John Paul Stevens, wrote for the first time in his 32 years on the Court that he believes the death penalty to be unconstitutional.

So is the death penalty unconstitutional? Judge Miller’s conclusion is that the Constitution is what five members of the U.S. Supreme Court say it is. Justices William Brennan and Thurgood Marshall consistently wrote that the death penalty was unconstitutional, including their majority opinions in Furman. Justice Harry Blackmun voted for the death penalty’s constitutionality in both Furman and Gregg, but writing in a denial of a writ of certiorari in Callins v. Collins several months before his retirement in 1994, Blackmun voiced his regrets, saying he would “no longer tinker with the machinery of death” or “coddle the Court’s delusion” that the death penalty worked in the United States. Justice Lewis Powell, a consistent vote for the death penalty, retired from the Court in 1987, 11 years after he joined a seven-justice majority in Gregg. But in a 1991 interview, he said that if he had it to do over again, he would vote the other way in every death penalty case, including the Court’s landmark decision of McCleskey v. Kemp (1987), which held that the death penalty was not racially discriminatory in its application. Combined with Justice Stevens’s remarks in Baze, that’s five votes against the death penalty’s constitutionality. (Of course, only one of those justices — Justice Stevens — remains on the court today.)

Richard Dieter, Death Penalty Information Center
Richard Dieter, executive director of the Death Penalty Information Center in Washington D.C., spoke about death penalty trends in the United States. The number of executions steadily rose between 1976, with the Court’s decision in Gregg, and the late 1990s. More jurisdictions implemented the death penalty, including Kansas and New York.

But then something happened — the case of Kirk Bloodsworth. Bloodsworth was a former Marine who had no prior criminal record. One day in 1984, he was in a park in Rosedale, Maryland, where a nine-year-old girl was raped and murdered. Some child witnesses identified Bloodsworth, who was convicted of first-degree murder and sentenced to death. Nine years after his conviction, in 1993, a DNA test exonerated Bloodsworth, who had always maintained his innocence.

“It wasn’t just the courts or lawyers who freed Kirk Bloodsworth. It was science,” Dieter said. “If it wasn’t for science, Bloodsworth might still be in prison.”

Kirk Bloodsworth became the first death row inmate to be exonerated based on DNA evidence, but he wasn’t the last. As of January 2009, 130 death row inmates have been exonerated in the U.S., including 51 between 1997 and 2004.

“That’s a disturbing number,” Dieter said.

In 1998, Northwestern University Law School hosted the first-ever exoneree conference, where each former death row inmate stood up and told his story. The event is credited with contributing to the current moratorium on executions in Illinois. See Henry Weinstein, Victims of the Justice System, L.A. Times, April 9, 2006 at B1, available at http://articles.latimes.com/2006/apr/09/local/me-wrongly9.

Death row exonerations have not been limited to DNA cases. Dieter told the story of Anthony Porter, a death row inmate in Illinois, who was convicted based on erroneous eyewitness testimony. Journalists interviewed the witness, who recanted her testimony and gave the name of the real killer. The journalists went to Milwaukee to find the man, who confessed to the murder and was later convicted. Porter was freed, and then-Illinois Gov. George Ryan commuted the death sentences of all 156 Illinois death row inmates before leaving office in 2003. See Governor Clears Illinois Death Row, BBC News, Jan. 11, 2003, available at http://news.bbc.co.uk/1/hi/world/americas/2649125.stm.

After the Illinois moratorium, the number of death sentences nationwide began to fall dramatically, from about 300 in 1999, to about 125 in 2005. That trend has been aided by jurisdictions dropping the death penalty altogether. The New York Court of Appeals held that state’s death penalty unconstitutional in 2004, and the New Jersey Legislature abolished the death penalty largely for cost and efficiency reasons in 2007.

“I think innocence has played a significant role,” Dieter said. “But clearly innocence is not the whole story.”

Executions have also dropped from a high of 98 in 1999 to 37 last year, but that trend is likely to go the other way this year. After the Court granted certiorari in Baze, there was a moratorium for several months in 2008 as states waited to hear whether the constitutionality of lethal injection would be upheld.

The vast majority of executions occur in the South — of the 37 executions nationwide last year, 95 percent of them occurred in Southern states.

Recent polls show that the public is now evenly split on the death penalty.

Dieter spoke about several cases like that of Larry Griffin, who was executed in Missouri, despite questions about his innocence. Thus far, there has not been a case in which someone has been exonerated after an execution, but should that happen, Dieter believes it would give the public real pause about keeping the death penalty.

Dieter also raised the issue of cost. The death penalty has cost the State of California $1.25 billion in 10 years, and there are nearly 670 people on California’s death row. California has not executed an inmate in more than three years, and has only executed 13 people since Gregg in 1976.

One audience member said that when he thinks about the death penalty, one person comes to mind: John Malvo. Malvo, the younger participant in the sniper shootings in Maryland and northern Virginia, was convicted and sentenced to life imprisonment without chance of parole. The audience member said that the people wanted Malvo executed, and that he believes that when a person is found guilty of first-degree murder, that’s what should happen.

“The problem has been, it just hasn’t worked,” Dieter said.

W&M Up Against FIRE-ing Squad

2009-01-29T10:02:00.003-05:00

This post was first published yesterday on the W&M Law American Constitution Society blog: http://web.wm.edu/so/acs/.

The nation's second-oldest college, which prides itself on having educated some of the most important Founding Fathers, has been criticized for undermining the most fundamental right in the Constitution: the freedom of expression. FIRE, the Foundation for Individual Rights in Education, has labeled William & Mary a "red-light" school, calling out the College for having one or more policies that "clearly and substantially restricts the freedom of speech of its students."

The Flat Hat reported the story Tuesday on its web site. As part of its free-speech warning system, FIRE, a 10-year-old organization, sent a letter to President (and former law school dean) Taylor Reveley. In the Flat Hat article, Reveley expressed his surprise at the school's labeling, saying that he doesn't think W&M is "stifling free speech."

William & Mary is by no means the only target of FIRE's mailing. The University of Virginia, Virginia Tech, and George Mason all received similar letters. (See the entire list here.)

It is worth noting, though, that the Flat Hat chose to highlight the free speech issue less than one year after former W&M President Gene Nichol allowed a performance, albeit a censored one, by the Sex Workers' Art Show. There is no need to rehash the whole controversy here; a section of Nichol's Wikipedia article and a search for "sex workers" on the Flat Hat's web site will suffice. Although other reasons were offered when the Board of Visitors decided to allow Nichol's contract to expire, prompting his sudden resignation last February, many cited Nichols's proclivity for bringing First Amendment issues front and center (see, e.g., the Wren Cross and the Sex Workers' Art Show). This pro-First Amendment attitude—or was it actually a gusto for front-page attention?—certainly wasn't welcomed by alumni.

Nichol aside, FIRE cites vagueness in the College's general harassment policy and Student Handbook policy on student posters, banners, and signs as reasons for the "red-light" label. The poster policy reads: "All signs, posters, and banners must conform to acceptable community standards and to any applicable laws such as permissible wording by the Alcohol Beverage Control Commission" (emphasis added). Those who have taken Professor Van Alstyne's First Amendment class can tell you that defining community standards is a bitch. For example, "Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 235 (2002). Imagine taping such a picture on the walls of an academic building at W&M, or even a residence hall. But what if a law student doing a special project on First Amendment issues wanted to use such a picture? What about an undergrad journalism student with similar motives? Can an academe be part of a different community at the same college?

Such speech codes have a downside, as at least one Virginia scholar has noted. Those who violate the codes (or allow them to be violated) may become glorified as martyrs for the Free Speech cause. "[T]here is a genuine danger that speech codes may not simply fall short of a laudable goal but in fact may even undermine that goal." Robert M. O'Neil, Free Speech in the College Community 13 (Indiana Univ. Press 1997).

So what is at stake for W&M? Do prospective students consider Free Speech issues when they weigh their choices of undergraduate institutions? It seems unlikely. At the very least, however, an institution that prides itself on educating the Founding Fathers should consider restraint when it comes to censoring free speech on campus. If there's a college community where all kinds of free expression should be welcomed, this is it.

Barack's Inauguration

2009-01-21T16:02:00.004-05:00

Versions of this op-ed were published in the West Branch Times and the Marshall-Wythe Press (print only).

WASHINGTON—As Barack Hussein Obama II took the oath of office as the nation’s 44th president, becoming the first African-American to lead the free world, more than a million people gathered on the National Mall to experience the ground-breaking moment.

Fewer than 250,000 of those people had tickets to the Inauguration and stood within a half-mile of the Capitol as the swearing-in took place. Thanks to the Office of Senator Tom Harkin, I was fortunate enough to be one of them.

From where I stood in the Silver section, accompanied by two friends from Iowa, I could see the stage where Chief Justice John Roberts Jr. administered the oath to Obama, but I could not see the faces of the two young leaders, the first men born after 1950 to hold their respective positions. We, the crowd, stood just beyond the Capitol Reflecting Pool—around which some people had camped Monday night in subfreezing temperatures to secure their spots—past the Washington Monument and all the way to the Lincoln Memorial, where Martin Luther King Jr. had delivered his “I Have a Dream” speech. I could not help but notice the symbolism, that it took this event, the swearing-in of a black president, to draw a crowd so large that the marble Abe, who delivered us from slavery, could bear witness.

My friend Kristy, who works in Washington, her friend Mary and I departed Kristy’s house in Capitol Hill at 7:30 a.m. The night before, we had debated whether to leave for the Mall at 7 a.m. or 8 a.m., because the gates opened at 8 a.m. and we knew most people would have a tough time commuting into the city. Once we turned on the news at 7 a.m., we recognized our folly: people had boarded the trains from all parts of Maryland, northern Virginia and D.C. at 4 a.m. Already, the Metro parking lots were full and soon the Mall would be, too.

I was immediately struck by the diversity of the crowd, and I could not help but feel the energy of the day. It was cold—about 30 degrees with a brisk north wind, creating a demand for hand and foot warmers that was filled with a steady supply from street vendors. “Just five dollars!” they shouted. As we navigated the hordes of people to find our designated line, both the urgency of the day and the temperature of the air pushed us all together—black, brown, yellow, red and white, just as Reverend Joseph Lowery said in the benediction.

Most of us lost cell service in the morning, and the day was all the better for it. One woman asked a traffic cop, “What street is this?” “That’s Constitution,” he replied, “and that’s Independence.” Already flustered at 8 a.m., she asked him, “Is there a less crowded way?” The cop just laughed and shook his head, and so did we. Later, a woman who described herself as “vertically challenged” held a digital camera high above her head to take pictures, then glanced at them in the camera’s display to see what was ahead (more people). A tall man, probably about 6-foot-8, offered his own assessment. “I think I see Reverend Wright!” he exclaimed, and about 100 people burst into laughter.

While standing in line for the Silver Gate, I had one of those Iowan moments, the kind where you strike up a conversation with a total stranger until you find your common ground. I noticed a man’s stocking hat, black with white piano keys around the rim. I told the man that until that day I thought my dad possessed the only such hat in the world, and the man responded that he had thought the same of his own. He said that it was quite a remarkable hat—wearing it, he had run a marathon, been filmed in a movie, and now attended Barack Obama’s Inauguration. His friend, Kevin, noticed my less significant Hawkeyes hat, and asked if I knew anyone from the Cedar Rapids area. I told him my two brothers live there, and that I graduated from Cornell College. He asked if I knew his aunt, who's a professor at Cornell. I told him that she had taught me Spanish 205 when I was a college sophomore. Kevin and I laughed, and his friend took our picture. “It was all because of the piano hat,” he said.

Once we got to the Mall, around 9:45 a.m., we took our spots about 100 yards from a Jumbotron with closed captioning and speakers, without which we would not have seen or heard what was happening. As the dignitaries arrived, the giant screen displayed them and the crowd reacted accordingly. I chuckled as a largely left-leaning crowd (OK, including me) booed a black man (Clarence Thomas), a pastor (Rick Warren) and a man in a wheelchair (Dick Cheney, who had hurt his back the previous day moving boxes). During Warren’s invocation, more than a few people turned their back to him; I saw two such people holding upside-down triangles of pink cloth, symbols of gay acceptance once used to identify homosexuals in Nazi concentration camps. Still, the biggest boos were reserved for Joe Lieberman, the former Democrat who endorsed Obama’s opponent and spoke at the Republican National Convention. Apparently Obama’s supporters have forgiven John McCain, because the crowd remained mostly silent for him. There were big cheers for Obama’s endorsers: Oprah, Colin Powell and Ted Kennedy.

As Barack and Michelle took the Capitol stage, the crowd alternated chants of “Yes we can!” and “O-ba-ma!” The Inaugural speech was well received, and most people left the Mall when the new president finished, even if there was more to the official program.

As we waited to exit, though, it seemed there was one bit of business remaining. A short man in an orange coat informed us of an Inaugural tradition: after the event, the outgoing president would take off from the Capitol in a helicopter. In the Jumbotron, I saw the propellors start. When George W. Bush had come to the stage for Obama’s speech, many in the crowd had sung, “Na na na na, hey, hey, hey, good-bye,” and we wondered aloud if the 43rd president could hear them. As the helicopter rose into the sky, the people cheered and one shouted, “Good riddance!” The man in the orange coat gave the departing president a one-fingered salute. A middle-aged black man standing with his teenage son turned to me and said, “In all my life, I’ve never seen anything like it.”

(Click here for photos of my trip to the Inauguration.)

Semester No. 5

2009-01-13T15:55:00.002-05:00

It hardly seems possible that law school is half over for me, but it surely is. William & Mary marks the occasion for its 2Ls this Thursday with a "Half-Way Through BBQ."

I arrived back in Williamsburg on Thursday night, having spent three relaxing weeks in Iowa (see picture, from Pikes Peak State Park). Much like many of my classmates, I tried to achieve two main goals: spend as much time with family and friends as I could, and spend as little money as I could.

My class schedule for this semester is settled, after I managed to get admitted into one of my classes from the wait list. Here's my schedule, which is full of interesting and mostly criminal law classes:

International Criminal Law, M-W, 10-11:15 a.m. (3 credits)
Criminal Procedure I, M-Tu-Th, 11:30 a.m.-12:20 p.m. (3 credits)
Post-Conflict Justice and the Rule of Law, M-W, 3:30-4:45 p.m. (3 credits)
The Death Penalty, M, 6-7:40 p.m. (2 or 3 credits, depending on length of final paper)
Legal Skills (2 credits, pass-fail)
Ethics (1 credit)
Law Review (1 credit, pass-fail)

I have four classes on Mondays, which should make for a busy start to the week, but I think I seek that out given my history in weekly newspapers, where organized chaos reigns on Monday and Tuesday. Crim Pro I, which covers the Fourth Amendment (searches, seizures, and warrants) and Fifth Amendment (self-incrimination, due process), will help considerably on the Bar exam. Post-Conflict Justice and The Death Penalty are smaller, seminar-type classes—more discussion than lecture, which I prefer. These two classes will require presentations, class participation, and a final paper, rather than the typical final exam. My first Death Penalty presentation will be Jan. 26, with three other group members.

As one might guess from this schedule, I have settled on criminal defense as a "specialty," though law students do not actually declare majors or specialties, as undergraduates do. Our education must prepare us for only two things: passing the Bar exam and getting a job. One hopes that it will also prepare us for a third—being good at that job—but it'll be a long time before I know if I've accomplished that.

As for the immediate tasks, tomorrow I will defend my Law Review Note for 20 minutes against three editors who have reviewed it and made suggestions. Also for journal responsibilities, I'll have two cite checks this semester, and probably some other tasks. Over break, I began work on another semester of research for my fellowship professor, 10 hours per week. Our Legal Skills trials get under way next week, though mine isn't until Feb. 5. My friend Tommy and I will act as prosecutors, which should be fun.

Ethics, which is part of the Legal Skills curriculum, is a two-week class followed by a graded exam. It is all preparation for the Multistate Professional Responsibility Examination (MPRE), which all law students must pass before we can take the Bar. Next week I will likely register for the March 7 MPRE, to get that obstacle out of the way.

As for the truly exciting stuff, I got a ticket to the Inauguration! A giant thanks to Senator Tom Harkin. On Sunday, I will either carpool with a friend or take a passenger train (for about $100) to D.C., where I will do my best to record—with my mind, pen, and camera—what promises to be an amazing, historic scene.

Halfway and Home

2008-12-19T08:58:00.000-05:00

The forty-five or so of us who took the Criminal Procedure II test yesterday weren't the last people to finish the semester—some classes have paper deadlines that extend beyond the finals period—but we certainly had the last final exam. It's over, thank goodness. I'm halfway done with law school. Last night at the gym a 3L congratulated me and remarked on the halfway mark. "I hope that was the harder half," I said. "Oh yeah," he replied. Next semester will include the defense and revision of my Law Review Note, a criminal trial for Legal Skills (Feb. 5), an ACLU trip to D.C. (Feb. 6), the Students for the Innocence Project's Death Penalty Symposium featuring my boss from last summer (Feb. 7), a second straight Spring Break trip to New Orleans with our awesome Student Hurricane Network group, and more fellowship research for my professor on First Amendment issues. My class schedule is not finalized, but it will certainly include the Death Penalty Seminar, with the same judge teaching that I had for Crim Pro II. I'm stoked about that class.

An update on my last post: Yesterday the Public Service Fund, the student-led W&M Law group that raises money for people like me who insist on working unpaid summer internships, sent an email to all public service-oriented students which said that only 15% of my class has secured a job for next summer. To contrast, the email said that 40% of the 3L class had jobs at this point last year. (This is an issue for PSF because when people who do not find paid jobs, more request public service funding.) I should mention that our class is not 25% inferior to the 3L class in any substantive way; quite the contrary, I have heard from classmates who have secured jobs with some of the top D.C. firms. No, the legal job market sucks in a very real way. Go, go gadget Congress. Is it January 20 yet?

Oh, and we lost the hockey game to the Marine Science graduate school team, 3–2, with :27 left in sudden death overtime. We had led, 1–0, after the second period, but the VIMS (Virginia Institute of Marine Science) team scored off the face-off in the third, and followed with what seemed to be the dagger goal with under 2:00 to play in regulation. One of our amazing hockey players, though, took control and scored a goal with under 1:00 to play, tying the match at 2–2. We were almost to the shootout when VIMS scored, dashing our hopes of an IM title. Maybe next year.

My flight to Iowa leaves in 4-1/2 hours. My brothers have been sending me weather reports that have prompted me to pack a pillow for what could be a long trip home (Richmond to Chicago to C.R.). I can't wait to get there, whenever it happens.

Almost halfway done

2008-12-12T10:16:00.004-05:00

Many of my classmates are celebrating the halfway mark of their law school lives, having finished first-semester finals. It's an exciting moment of relief for many of us, but not for all. Maybe you've heard that the economy isn't doing so well these days. Turns out that matters even to law students, who have found that employers have cut back on hiring, big-time. I blame people like Rod Blagojevich, who can't seem to find the money to pay his $500,000 in legal bills. (No wonder he was trying to sell that Senate seat.) But apparently the problem extends beyond our nation's most troubled governor. "Even the best clients were holding payment," says one law firm chairman. If people can't pay their bills, law firms can't pay their lawyers, let alone hire new ones.

This is troublesome for law students across the country who spent all fall interviewing with potential employers, and still don't have job offers. Many of us came to law school with the idea that taking on thousands of dollars in debt would pay off not long after graduation. These tough times are hitting most everyone hard — even those entering the legal profession, which once seemed a surefire way to get a high-paying, rewarding job.

Fortunately for me, I've landed a public service job in San Francisco next summer, working on death penalty appeals. Though I won't be making big bucks, I'll have a small stipend through the law school, as I did last summer, and I'll be doing the kind of work I can feel good about. More on the job later, though. Must get back to studying. Almost halfway done with law school, and it feels pretty good.

Finals mode

2008-12-04T17:26:00.002-05:00

Tomorrow is the last day of first semester classes, with finals starting the middle of next week. Seasoned law students are retreating to their comfort zones, finding the corners of the library (law or undergrad; I prefer the latter this time of year) they like best, bouncing from coffee shop to coffee shop, or holing up in their study spaces at home.

I have three final exams: Evidence, on Dec. 11; First Amendment, on Dec. 15; and Criminal Procedure II, on Dec. 18. Some people are done on the first day of exams, having turned in papers or finished take-home tests early. Others, like me, will remain in the law school on the last afternoon of the exam period. My Crim Pro professor, a federal magistrate judge, assured us that exam scheduling was not within his ... ahem, jurisdiction. Anyway, it's fine with me. I like the spacing.

As a brief reprieve from studying, I'm privileged to be on a stellar intramural floor hockey team. We went 4-0 in the "regular season" and won our first-round playoff Monday. The semifinal is at 6 tonight, and if we win, the final is at 8. If we advance, we're likely to meet the W&M undergrad hockey team. Hardly fair, if you ask me, but if anyone can match their competitiveness, it's law students in finals mode.

First draft, done

2008-11-23T11:23:00.003-05:00

Today I finished the first full draft of my major legal writing project, my law review Note. It's 39 pages long so far, though it's likely to get longer when I return to it next semester. Without boring anyone (or pre-empting myself by writing about it online), I argue that a portion of the Virginia death penalty is unconstitutionally vague and misleading, and that in a recent case, the Supreme Court of Virginia wrongly interpreted two provisions of the Virginia death penalty statute, ignoring both a decision by the U.S. Supreme Court and modern science in the process. Look at me, picking on judges two or three times my age.

The publication process is a long one. There are 39 law review staff members in my class, and we've all written Notes between 5,000 and 10,000 words long. When we return in January, we'll defend them to three-person panels, comprised of 3L editorial board members, who will have read our papers and critiqued them. Then it's back to the editing process, and eventually we'll turn in completed copies. Sometime next spring or summer, a new editorial board will select about six or seven of those 39 Notes for publication in next year's William and Mary Law Review. Those of us who don't get published will have the opportunity to submit our papers to other law reviews and journals at W&M and other law schools.

For now, I'm done! Two and a half weeks until finals. This semester has gone so quickly.

First Annual Innocence Symposium

2008-11-15T17:45:00.003-05:00

Exonerees, attorneys, journalists, and politicians converged at the law school to express their unwavering, unanimous support for the wrongfully convicted, as W&M Law’s Students for the Innocence Project and the Black Law Students Association co-sponsored the First Annual Innocence Symposium on Friday, Nov. 14.

“No one really knows about the innocent, the people who are crying for help,” said Marvin Anderson, who was exonerated in 2001 after spending 15 years in prison and four years on parole for a crime he did not commit. “No one really knows about the exonerees, and that’s because the states do not want to admit there’s something wrong.”

An afternoon full of dynamic speakers and an evening of jazz by exoneree Michael Austin drew between 60 and 80 people to the first Innocence Symposium held at W&M Law.

Anderson’s mother, Joan, said that Marvin was the 99th person exonerated since the introduction of DNA evidence. To date there have been 223 such exonerations in the United States, exposing a wide range of flaws in the American criminal justice system.

Olga Akselrod, a staff attorney at the Innocence Project, works on innocence cases involving DNA evidence. She said the most common causes of wrongful convictions are mistaken eyewitness identifications; limited, unreliable, or fraudulent science; false confessions; and informants who provide bad information. Akselrod said recent studies show that wrongful convictions comprise between 3 and 5 percent of all convictions in the U.S.

“If we were going to be getting on an airplane with a 3 to 5 percent chance of crashing, we’d be concerned,” she said. “And yet, that appears to be where our criminal justice system is.”

The wrongfully convicted come from all over the country, Akselrod said, including 10 exonerees in Virginia alone.

Margaret Edds, who retired from the Virginian-Pilot last year after 30-plus years in journalism, spoke about the infamous yet ongoing story of the Norfolk Four, a quartet of sailors whose lives have been devastated by convictions for a rape and murder they almost certainly did not commit. DNA evidence at the scene matches only Omar Abdul Ballard, who confessed to the crime and is serving two life sentences for it. But despite overwhelming evidence that Ballard acted alone, three of the Norfolk Four remain in prison and the lives of all four have been ruined.

Although four former Virginia attorneys general, dozens of attorneys and retired judges, and most recently, 30 FBI agents, have spoken out on behalf of the Norfolk Four, prosecutors maintain that Ballard acted with the sailors in raping and killing Michelle Moore-Bosko on July 8, 1997. Clemency petitions, filed in 2005 during the waning days of Gov. Mark Warner’s tenure, remain before Gov. Tim Kaine.

“For Kaine to join in the proclamation of the Norfolk Four’s innocence would cement an indictment of the criminal justice system,” Edds said. Still, Edds believes that as the governor enters his final year in office, he may be willing to spend the political capital necessary to free the four sailors. “It’s time for us now to deal with it and clean this up.”

State Senator Henry Marsh helped lead the charge in the General Assembly to pass a DNA exoneration bill in 2001, eliminating the need for executive clemency in some DNA cases.

“To me, the idea of an innocent person being in prison for a crime they didn’t commit is unthinkable,” Marsh said. “It’s bad enough being in prison for something you did do.”

Steven Benjamin, a Richmond attorney who serves on the Virginia Board of Forensic Science and the Virginia Indigent Defense Commission, spoke of the wide-scale DNA testing ordered by Gov. Warner in 2005. The former governor ordered that DNA evidence of thousands of Virginia prisoners be tested after a 2004 random sampling of 31 pieces of evidence exonerated two more of Virginia’s inmates. Benjamin said that the odds that two of the 31 random samples would result in exonerations were “absolutely staggering.”

Still, Benjamin said, three years after the testing was ordered, only 34 more samples have reportedly been tested, and the $1.4 million budgeted for the wide-scale testing is gone. Speaking for himself and only himself, Benjamin suggested that the private lab contracted to do the testing and the Virginia Board of Forensic Science share the blame for a project that has stalled without much public explanation.

“We do not trust things that are done in secret,” he said. “If you are acting as if you have something to hide, then you must have something to hide. We have got to return to the accurate and reliable determination of the truth. We should not be afraid of the truth.”

Concluding the day of speakers was Bernie Henderson, a senior deputy in the Office of the Secretary of the Commonwealth. He explained Virginia’s policies on executive clemency, which derive from the English common law, are mostly unwritten, and can change depending on who sits in the governor’s office.

Several exonerees and members of the Innocence Clinic at the University of Virginia attended the symposium.

Marvin Anderson, whose parents sat in the front row as he spoke, described his experiences both before and after his exoneration.

“You try not to focus on where you are, but on where you want to be,” he said. “No one knows exactly what a black hole looks like. But it’s a black hole with no bottom, when you know you did not commit a crime and no one believes you.”

Anderson, 44, said that the 2008 presidential election was his first opportunity to vote—26 years after his conviction and seven years after his exoneration. A certified welder and owner of a trucking company, he is attending night classes to become a firefighter, which he has wanted to do since he was a child.

“I am living my dream,” Anderson said.

If you have questions about the First Annual Innocence Symposium or would like to attend a viewing of the recorded event, please email wmsfip@gmail.com.

Redistributing the wealth

2008-11-11T10:20:00.003-05:00

The self-described conservatives, libertarians, and Republicans here at Marshall-Wythe (and there are many) keep rekindling the phrase "redistributing the wealth," in relation to President-elect Barack Obama's middle class tax cut. One classmate of mine even managed to mention it during Evidence class this morning, in response to the professor's question about self-incrimination. I missed how those two concepts, wealth redistribution and self-incrimination, had anything to do with each other. Perhaps someone should ask Joe the Plumber.

Recall that it was Obama's conversation with Joe the Plumber in which Obama used the phrase, "spread the wealth around." Not long after that, conservatives (led by Matt Drudge) dug up this 2001 interview that Obama gave to WBEZ radio in Chicago, in which he talked about the Warren Court of the 1960s, which by Obama's account, did not engage in much "redistribution of wealth." For a much more academic discussion of this than I'm capable of, read this fascinating account of Obama's 2001 remarks. Obama's conclusion, as documented in the 2001 interview, is that redistributive change is not possible (or necessarily desirable) through the courts. One cannot know for sure if that is Obama's driving factor in leaving the Ivory Tower of academia for the political arena, at least not without asking him, but I tend to doubt it.

So what would Obama do with our wealth (now that we've lost $1 trillion of it)? For starters, Obama's middle class tax cut (which, by the way, he's been pitching since the Pre-Caucus Era) can be found here. Obama's plan, if enacted by Congress, would cut taxes for families making less than $250,000 a year (e.g., Samuel J. Wurzelbacher, my parents). For the wealthiest 2% of Americans, those making more than $250,000 a year (see the Clintons, Bushes, Obamas, McCains, et al.), taxes will increase to the same levels they were in the 1990s. This will have the effect of increasing, not redistributing wealth, to the vast majority of us. We'll be able to save it, or at least pay off some debt, while richer Americans will go back to paying a larger share. According to a few of these overwhelmingly rich Americans, that's quite alright.

Instead of all this talk about "redistributing the wealth" and socialism, then, perhaps we should spend a little more time debating the merits of a middle class tax cut, because that's what Obama wants to do while in office. It might not get as many laughs in Evidence class, but it's a more fruitful discussion.

Sorting through it all

2008-11-10T10:56:00.006-05:00

I was heartened this morning to find that the #1 most emailed article on NYTimes.com was a profile of Nate Silver, founder of FiveThirtyEight.com. I followed 538 religiously this campaign season. As the article today points out, Silver, a 30-year-old numbers whiz, started the website partially out of frustration with the mainstream media's treatment of polling data—i.e., the fact that the media often treat unequal polls equally. At FiveThirtyEight, Silver instituted a poll ranking system, so that trusted polls like Quinnipiac and Rasmussen get the credence they deserve, while obscure polls using faulty sample groups get their come-uppins. When a poll was published that suggested some shifting trend, Silver would delve headfirst into why the poll got the result that it did. (See "Anatomy of a Polling Disaster.") Often, he would find some monumental error with the way the poll was conducted, and he would give that poll a poor ranking. From this kind of astute analysis, Silver made it far easier to make sense of the way public opinion of the presidential election was progressing. Previously, when the media found one of these faulty polls, which Silver calls "outliers," they would trumpet it as a shift in the direction of public opinion (sometimes a self-fulfilling prophecy). Now, such polls are relegated to the scrap heap, and future polls from those organizations are treated with deserved skepticism.

I don't watch much TV anymore, so I didn't realize that Silver had also gained significant attention as a pundit, but it makes sense. I'm happy about this for two reasons. First, he's young, and it's fantastic to see that young people doing creative things get rewarded. Second, and more importantly, we live in a new internet age, in which more and more information is constantly being tossed at us from all directions. Even the most educated people get thrown off by this constant stream of data, thus it's extremely helpful when someone like Nate Silver comes along, with a scientific or mathematical solution to sort through it all. Silver's increasing popularity bodes well for people like him, and for the education of society generally.

Finally, I'm sympathetic to Silver's point about what happens to his website, now that the election's over. He intends to continue using FiveThirtyEight to predict congressional votes on Obama initiatives, but he admits that the popularity of his site will likely dwindle.

“That’s the paradox,” [Silver] said. “You would think that you elect this guy and you want him to effect change, and then he gets elected, and people don’t care about bills being passed.”

Touché, Nate. Isn't a lack of curiosity how we got into this mess in the first place?

Our New President

2008-11-07T14:31:00.005-05:00

This week's big event, the election of President Barack Obama, have meant so much to so many for reasons too numerous to count. One New York Times story on Wednesday aptly described it as a moment of "national catharsis."

It’s been a long time coming, but tonight, because of what we did on this day, in this election, at this defining moment, change has come to America.

To help do our part, as law students, my friend Aaron recruited a group of us to serve as the Obama campaign's official poll watchers on Tuesday. Virginia law allows for one observer from each campaign on Election Day, both inside and outside the polling place. So 50 of us law students and professors awoke early, some as early as 3:30 a.m., and traveled to precincts throughout Hampton Roads, from Virginia Beach to Newport News to Williamsburg and James City County. We witnessed history first-hand, as thousands of first-time voters, many of them black, helped turn Virginia blue for the first time since 1964.

When I arrived at 5:30 a.m., in the darkness and the rain, a line of more than 200 people had formed inside the hallways of Christian Life Church. Polls opened at 6 a.m., and it took an hour and a half before everyone in the original line had cast a ballot. By day's end, nearly 80 percent of the precinct's registered voters had cast a vote for Obama or Senator John McCain.

The crowning moment of my day came in the early afternoon, when an Obama volunteer, a middle-aged woman ripe with enthusiasm, accompanied an elderly black woman to the church. As the elderly voter showed her ID to poll workers, the volunteer told me that the woman was thrilled to have her chance to vote in this election — it was the first time she'd ever voted. After the elderly woman slid her ballot into the optical scanner, she stepped to the middle of the room and stopped. There, she threw both her hands in the air and exclaimed, "I have never felt so good in all my life! This is the first time I've ever voted!" Everyone in the room, perhaps 15 or 20 people, burst immediately into raucous applause. Tears streamed down the face of the Obama volunteer, as the elderly woman came to embrace her. The first-time voter proceeded to hug every person in sight as she made her way out of the church.

Stories like this one have come from all parts of the country, stories that serve to heal us and give us hope that this week, we live in a new kind of America — the kind of country that embraces all people equally. There are also stories that just feel good, like this one, from a friend of a friend who was at Grant Park in Chicago, where Obama made his acceptance speech:

It was totally amazing, but here's the moment of the night:

CNN was playing on the huge screens in the park. We watched as Wolf Blitzer called the states and the huge panel of pundits pronounced on whatever struck their fancy. Some time after Ohio was called, they turned the volume of the TVs down and shrunk the image of CNN to show pictures of the crowd that was present at Grant park. There was a whisper behind us that several networks had called the election for Obama. I was with a group of political scientists and since all of our phones were down and we could not confirm via the blogs and election maps that we've all become addicted to, we doubted. The crowd murmured and shifted.

Then, an unassuming skinny young white guy in a black hoodie came out onto the stage and said into the microphone, "Mic check 1, 2, 3. Mic check 1, 2. Mic check for the President Elect of the United States of America."

The crowd exploded.

The moment in Grant Park must have been the pinnacle of public euphoria, but since then, I know personally of many people who have had their own private moments of pure emotion. My own came on Wednesday afternoon. Still exhausted from a 14-hour day at the church (alright, and a full night of celebrating), I turned on the TV and caught a piece showing reactions to the election around the world. And there, just two days after Barack Obama's white grandmother had passed away in Hawaii, was Barack Obama's black grandmother, in Kenya. Sarah Obama's entire village was celebrating, as were young people in Greece, Israel, France, and even the children at Obama's childhood school in Indonesia. My girlfriend's friends from Canada and Australia called her this week to say that if they could have voted for Obama, they would have.

As I watched these scenes from around the world, the joy and relief overtook me, as it has so many people this week. Jesse Jackson Sr., whose tears were caught on camera at Grant Park Tuesday night, said that he cried for the happiness that Obama's accomplishment brought him, but also for the sad fact that Civil Rights-era people like Medgar Evers and Martin Luther King Jr.—the ones who made Barack Obama possible—weren't still alive to see this day.

Thank goodness for them, and all those who helped make Tuesday possible. Now there is much work to be done, and it will take many hands to rebuild this country. As our new president said himself: "to those Americans whose support I have yet to earn – I may not have won your vote, but I hear your voices, I need your help, and I will be your President too."

We have our country back, all of us. The change is palpable—it fills the spirit and brings a smile to faces all over the world. I like to think we owe it to people like the elderly black woman in James City County, Va., who on Tuesday mustered the courage to cast a vote for president for the first time in her life. We may live in the same country that we lived in on Monday, but because of people like her, today we live in a nation that is forever changed.

Stay issued for Troy Davis!

2008-10-24T12:48:00.005-04:00

The 11th Circuit Court of Appeals on Friday issued a stay of execution for Troy Davis! The stay comes just three days before Davis was scheduled to be executed.

“Upon our thorough review of the record, we conclude that Davis has met the burden for a stay of execution,” the court said in a ruling issued by Judges Joel Dubina, Rosemary Barket and Stanley Marcus.

http://www.ajc.com/metro/content/metro/stories/2008/10/24/troy_davis_stay.html

CNN reports that the stay has been issued for 25 days. The AP reports that a three-judge panel of the 11th Circuit has asked lawyers from both sides to file new briefs, to see if Davis can meet the "stringent requirements" needed for a new round of appeals.

The stay comes a day after worldwide protests (including our humble gathering of 45 in Williamsburg) organized by Amnesty International.

Woohoo!

We are all Troy Davis

2008-10-23T23:00:00.004-04:00

We rallied for two hours this afternoon at the intersection of Richmond, Jamestown and Boundary (Confusion Corner) in Williamsburg this afternoon, informing people of Troy Davis's plight. We collected more than 100 signatures, which we will fax to Amnesty International. That organization will gather signatures from around the world and send them to the Georgia Board of Paroles and Pardons, which is the only hope Davis has left for clemency.

If one innocent man dies, a piece of all of us dies with him. We are all Troy Davis.