Law

“David Broder 2009”:http://www.washingtonpost.com/wp-dyn/content/article/2009/09/02/AR2009090202857_pf.html

Looming beyond the publicized cases of these relatively low-level operatives is the fundamental accountability question: What about those who approved of their actions? If accountability is the standard, then it should apply to the policymakers and not just to the underlings. Ultimately, do we want to see Cheney, who backed these actions and still does, standing in the dock? I think it is that kind of prospect that led President Obama to state that he was opposed to invoking the criminal justice system, even as he gave Holder the authority to decide the question for himself. Obama’s argument has been that he has made the decision to change policy and bring the practices clearly within constitutional bounds — and that should be sufficient. In times like these, the understandable desire to enforce individual accountability must be weighed against the consequences. This country is facing so many huge challenges at home and abroad that the president cannot afford to be drawn into what would undoubtedly be a major, bitter partisan battle over prosecution of Bush-era officials. The cost to the country would simply be too great.

Lord Justice Denning, on the “Birmingham Six”:http://en.wikipedia.org/wiki/Birmingham_Six stitch up

Just consider the course of events if their [the Six’s] action were to proceed to trial … If the six men failed it would mean that much time and money and worry would have been expended by many people to no good purpose. If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous. That would mean that the Home Secretary would have either to recommend that they be pardoned or to remit the case to the Court of Appeal. That was such an appalling vista that every sensible person would say, ‘It cannot be right that these actions should go any further.’ They should be struck out either on the ground that the men are estopped from challenging the decision of Mr. Justice Bridge, or alternatively that it is an abuse of the process of the court. Whichever it is, the actions should be stopped.

Funnily enough, not only did the British political and justice system manage to keep stumbling on after the Birmingham Six were released, but most reasonable observers would agree that it was the better for finally admitting that it had locked up six men for sixteen years on trumped-up evidence. Similarly, one might imagine that the US justice system would be the better for examining the _prima facie_ evidence that the Vice President of this country engaged in illegal acts, rather than pretending that it didn’t because of the risk of partisan upheaval. But not if one were David Broder.

A few years ago now, a friend sent me xerox of chapter 5 of Derek Bok’s superb book Our Underachieving Colleges: A Candid Look at How Much Students Learn and Why They Should Be Learning More. The purpose was to get me to think about whether there was something interesting to be said about the role of philosophy in a university education. Up till that point I had been somewhat interested in issues of justice in access to university, but not very interested in what universities do, or should do, once students get there. But one thing led to another, and since getting hold of a devouring the entire book, which is I can recommend thoroughly, I was hooked. I’ve been meaning to review it here for ages, and still may, but for the moment I thought I’d highlight one of the passages that has changed one small thing that I do as a professor.

Among the goals that Bok thinks universities should have for students (his main interest is in elite, or as I’ve recently seen them referred to, “Medallion”, colleges, though,much of what he says applies further down the status order of 4 year colleges) and that he thinks they underperform at pretty seriously, is preparing them for a career. He does not mean that colleges fail to provide the credentials necessary for a prestigious career (they certainly do that) nor that they fail to provide relevant education (though he is a little bit skeptical about that). Rather, he thinks that they fail to provide adequate guidance. The consequence is that students are rather ignorant of what different careers involve, what they are likely to do within them, how those careers contribute to the society, and what contribution they would make to their own wellbeing. His particular bete noir (ironically perhaps) is that smart young students with a public service ethic, as well as those who just don’t know what to do with their lives, go to Law School:

For students who begin their legal training hoping to fight for social justice, law school can be a sobering experience. While there, they learn a number of hard truths. Jobs fighting for the environment or civil liberties are very scarce. Defending the poor and powerless turns out to pay remarkably little and often to consist of work that many regard as repetitive and dull. As public interest jobs seem less promising (and law school debts continue to mount), most of these idealistic students end by persuading themselves that a large corporate law firm is the best course to pursue, even though many of them fund the specialties practiced in these firms, such as corporate law, tax law, and real estate law, both uninteresting and unchallenging…..

Imagine the social value that would be produced if these students were, instead, going into teaching and eventually leading urban schools and school districts. As Bok says, we do not yet have a case that letting students apply to Law School by default is bad for them: if they end up enjoying the life more than they would enjoy the more challenging and less well compensated life of a teacher then at least they have been well served. But:

Almost half of the young lawyers leave their firm within three years. Many complain of having too little time with their families, and feeling tired and under pressure on most days of the week. Many more are weary of constantly having to compete for advancement with other bright young lawyers or troubled by what they regard as the lack of redeeming social value in their work. Within the profession as a whole, levels of stress, alcoholism, divorce, suicide and drug abuse are all substantially above the national average.

Bok makes as compelling a case as is possible in the absence of evidence of a kind which, I suspect, would be very hard to gather; his observations certainly fit exactly with my own experience.

So how has this made me change my behaviour? I have written a lot of letters of recommendation for students to go to Law School. Getting a letter of recommendation from me requires submitting a package of materials and meeting with me to discuss one’s goals and the process. Before reading Our Underachieving Colleges, despite my serious reservations about the profession (I’ve known a fair number of lawyers, and I’ve known only one who really enjoyed the job), I never tried to dissuade anyone. I still don’t (just for the CT reader whom I did dissuade, you know, don’t you, that I was not trying). But I do ask them, straight out, “why do you want to go to Law School?”. I am amazed how many students sit there dumbstruck, having never seemed to have given it any thought. I also ask whether they have talked to some lawyers about their jobs, and am similarly amazed how few have done so. Of course, by the time they are asking for a letter it is a bit late to be trying to help them think about a career. But the responses I’ve had suggest to me that Bok’s thesis holds for my institution at least — and that the way we go about thinking about preparing students for a career is extremely laissez faire — much more so than is good for the students, and more than they, who mostly would appreciate some gentle, disinterested, guidance, want.

I’m curious how other people approach writing letters for Law School (or Medical School, or whatever), and whether my experience is idiosyncratic.

One source that may possibly help illuminate the controversy over Skip Gates’ arrest is Peter Moskos’ book, _Cop in the Hood_ (Powells, Amazon). Moskos, a sociologist, spent a year as a beat officer in Baltimore. While police practice in the US varies substantially from jurisdiction to jurisdiction, some aspects are (I suspect) reasonably general, including the use by police officers of their zone of discretion to try to expand their authority beyond that which they are theoretically supposed to exercise. Moskos (p. 117-118):

bq. A nonviolent domestic dispute serves as another example of using the law to gain extralegal authority. A woman calls police because she is sick of her baby’s father coming home and being rowdy after a night of drinking. An officer wants the drunken man to spend the night elsewhere. The girlfriend is not afraid of the man. Though the officer believes this argument will continue and perhaps turn violent, there is no cause for arrest. Police may not order a person from his or her home. But an officer can request to talk to the man outside his house. At this point the officer might say, “If you don’t take a walk, I’m going to lock you up.’ The man, though within his rights to quietly reenter his house and say goodnight to the police, is more likely to obey the officer’s request or engage the police in a loud and drunken late-night debate. The man may protest loudly that the officer has no reason to lock him up. If a crowd gathers or lights in neighboring buildings turn on, he may be arrested for disorderly conduct.

Moskos is in general in favor of police having a fair amount of discretion (he seems to believe that much basic policing work would be impossible without it) – I’m not going to get into that broad set of arguments, since I don’t know enough to say anything useful. But it is easy to see how this discretion can be abused in ways that work out nicely for the cops (most of the time), but not so nicely for their targets. Moskos’ discussion of this particular technique of generating arrests has some similarities with the actions described in the “police report”:http://www.boston.com/news/local/breaking_news/CANON8AA683_LNOTESMAIL_07202009-153909.PDF of Gates’ arrest.

bq. When Gates asked me a third time for my name, I explained to him that I had provided it at his request two separate times. Gates continued to yell at me. I told Gates that I was leaving his residence and that if he had any other questions regarding the matter, I would speak with him outside his residence. As I began walking through the foyer toward the front door, I could hear Gates again demanding my name. I again told Gates that I would speak with him outside. My reason for wanting to leave the residence was that Gates was yelling very loud and the acoustics of the kitchen and foyer were making it difficult for me to transmit pertinent information to ECC or other responding units.

bq. When I left the residence, I noted that there were several Cambridge and Harvard University police officers assembled on the sidewalk in front of the residence. Additionally, the caller, Ms. Walen and at least seven unidentified passers-by were looking in the direction of Gates, who had followed me outside the residence. As I descended the stairs to the sidewalk, Gates continued to yell at me, accusing me of racial bias and continued to tell me that I had not heard the last of him. Due to the tumultuous manner Gates had exhibited in his residence as well as his continued tumultuous behavior outside the residence, in view of the public, I warned Gates that he was becoming disorderly. Gates ignored my warning and continued to yell, which drew the attention both of the police officers and citizens, who appeared surprised and alarmed by Gates’ outburst. For a second time I warned Gates to calm down while I withdrew my department issued handcuffs from their carrying case. Gates again ignored my warning and continued to yell at me. It was at this time that I informed Gates that he was under arrest. I then stepped up the stairs, onto the porch and attempted to place handcuffs on Gates. Gates initially resisted my attempt to handcuff him, yelling that he was “disabled” and would fall without his cane.

Now, I should emphasize that I have no personal reason whatsoever to doubt that Crowley’s account of the arrest is accurate – it may very well be that the acoustics were such that communication was difficult indoors. I am not acquainted with the physical specifics of the building where Gates lives. It is, however, notable that Moskos’ Baltimore police officer both (a) uses a verbal invitation to induce the targeted individual to leave the building, and (b) then uses the attention of bystanders to generate a charge of disorderly conduct. Whether these resemblances are purely accidental or not (in the absence of more facts, you could generate arguments either way), I leave to the imagination of the reader.

Update: All charges against Gates have “now been dropped”:http://www.bostonherald.com/news/regional/view.bg?articleid=1186258&format=text.

Annie Hall on the Hill.

That’s “a headline”:http://news.bbc.co.uk/1/hi/uk/8147890.stm at the BBC. So it would seem that they do rather less damage to the UK economy tham the various banking groups that needed rescuing ….

Having knocked Mark “digital barbarism” Helprin around in a trio of posts – in one of which I remarked that the guy should probably listen to EconTalk to learn that libertarians are actually skeptical about the merits of copyright extension – I am duty-bound to report that Helprin was just a guest on EconTalk. [click to continue…]

To punish myself for panning Helprin’s book without reading, I decided to go back and reread the excerpt at least. And that old op-ed. And I’ve decided: there’s more merit here than I had realized. Let me lay it out for you. (But first, ask yourself: wouldn’t you rather be reading Squid and Owl? Isn’t that a more healthful use of your time?) [click to continue…]

Henry and a few others suggested I was a bit hard on Douthat for not being hard enough on Helprin. Douthat may be guilty only of the venial sin of obligatory civility in the face of a bad book, not the mortal sin of Higher Broderism. (Although one hopes the critic’s motto is not ‘if you can’t say something nice, don’t say anything at all.’) It really was his last paragraph that set me off, and it’s worth saying why. I’ll leave Helprin and even Douthat mostly out of it. [click to continue…]

“Marc Ambinder”:http://politics.theatlantic.com/2009/06/louis_brandeis_federalism_and_the_changing_politics_of_tobacco.php offers this general meditation on the changing politics of smoking.

That process has accelerated dramatically since 2004 when New York City essentially banned smoking in bars and restaurants. It seemed so wild at the time. Chris Hitchens wrote a hysterical Vanity Fair piece on his attempts to defy the ban. It seemed radical, the odd teetotaling of a mayor who also pursued trans fats with a vengeance. Now, of course, smoking bans are everywhere and while the libertarian in me finds them irksome, the fact is that the public has not revolted and tossed out politicians who impose them. Trans fats are under siege, too.

Consider it part of the beauty of federalism. The small ideas that incubate in laboratories of democracy, as the former Supreme Court Justice Louis Brandeis famously called the states, have grown wildly. Causality is the hardest thing to trace. But I suspect without the heavy-duty smoking bans begun in earnest after 2004 in Mike Bloomberg’s New York, you wouldn’t have seen the conditions change so dramatically that the passage of FDA regulation of tobacco is a relatively minor story.

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I’m glad to see that Ed Whelan has “apologized”:http://bench.nationalreview.com/post/?q=MjljOTg3NDY4ZWUzZWFkODliMzU4M2M3NGM5YTQ2N2Q, for having outed “Publius”:http://obsidianwings.blogs.com/obsidian_wings/2009/06/stay-classy-ed-whelan.html. Bad that he did what he did – good that he apologized for it, and very straightforwardly too. Good also that so many conservatives came out swinging on the right side of this issue. But I actually think that “Michael Krauss”:http://www.pointoflaw.com/archives/2009/06/blogging-ethics.php, professor at GMU’s law school and sometime blogger, was arguably worse behaved than Whelan over this. Whelan perhaps didn’t think through the possible consequences of outing an untenured legal academic. Krauss very clearly did think it through – and apparently wanted the worst to happen. At least, this seems to me to be the most reasonable reading of his expressed hope that “the South Texas tenure committee is watching and taking note.” To hope that a tenure committee will take note of a behaviour you are condemning is to hope that they will deny the responsible individual tenure for doing this (if there is a plausible alternative reading, I am not seeing it). Given that Krauss is himself a senior legal academic, whose opinion of aspiring professors may genuinely affect their chances of doing well, this is nasty and vindictive bullying, which has (to use his own words against him) “no redeeming argument.” Krauss should think through what he has said, take it back and publicly apologize.

Update: I see that Brian Leiter, whose many contributions to intellectual life include his “occasional interventions in this blog’s comment section”:https://crookedtimber.org/2009/03/01/greatest-philosopher-of-the-twentieth-century/#comment-267599, is still “disinclined to apologize”:http://leiterreports.typepad.com/blog/2005/06/who_is_juan_non.html for his aborted effort to out ‘Juan non-Volokh’ a few years back. The comparison is instructive.

I’ve only seen the headlines, but I expect all the clowns put on their clown suits this morning and are presently climbing out of their clown car at the studio. I’m thinking liberal, activist, Puerto Rico isn’t even a state and the Bronx isn’t either, law-into-her-own-hands, affirmative action, closeted lesbian, the guy in front of me at Dunkin D’s said she wasn’t too bright. On that last point, it’s well known amongst alums that whereas the Princeton Sam Alito graduated from in 1972 was a bastion of civilized learning, the Princeton Sotomayor graduated summa cum laude from four or five years later was a hippie “learning cooperative” where minorities got a coupon book of “A” grades upon admission to use up as needed, were all given the Pyne Prize automatically, and the concept of truth was rigorously suppressed by the leftist faculty.

Around four years ago, there was some controversy about Jared Diamond’s Guns, Germs, and Steel (and, I gather, a PBS documentary based on the book). Various bloggers at savageminds.org – a group anthropology blog – for example, here and here and elsewhere – attacked Diamond for various reasons, up to and including calling him racist. Brad DeLong replied by accusing the critics of being “positively green with envy at Jared Diamond’s ability to make interesting arguments in a striking and comprehensible way, and also remarkably incompetent at critique.” Henry discussed the flap here, here, and here, writing: “I strongly suspect that the ‘Diamond=racist’ claim is a more-or-less pure exercise in boundary maintenance – I certainly haven’t seen any substantial counter-evidence to date. Which isn’t to say that there isn’t a real, substantive argument to be had between different ways of knowing, or that there aren’t advantages to anthropological approaches which can’t be captured in a big, sweeping structuralist account like Diamond’s.” And he linked to Tim Burke, who here and here offered a critique of Diamond that was more – shall we say – nuanced (and interesting!) than the one at savageminds.org.

Now there’s a new controversy. About a year ago, Diamond published an article in the New Yorker called “Vengeance Is Ours.” Abstract is here – full text available to subscribers only (I think) from that link.
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Martin Kelner’s “utterly cynical piece in the Guardian”:http://www.guardian.co.uk/football/blog/2009/apr/13/hillsborough-disaster-liverpool-martin-kelner-bbc rather sums up the attitude of metropolitan journalists. OK, so he focuses on the BBC rather than asking directly, “why don’t those mawkish Scousers shut up about their 96 dead?”, but the comparisons to Diana and Jade Goody are there for a purpose (there are some excellent comments by readers in response). Actually, I think the BBC’s coverage of the anniversary has been rather good, especially Kelly Dalglish’s fine radio programme (not mentioned by Kelner, but also featuring interviews with the parents of the Hicks sisters). There are lots of good reasons not to shut up after 20 years. Not only has there been no apology from the police for their actions, but many things haven’t changed. I was reminded of this whilst listening to the current Chief Constable of South Yorkshire explain how much the police have learnt and how it wouldn’t happen today. Oh really? Well as we know from the G20 protests (and other recent events such as the de Menezes shooting) the police still try to get their “blame the victim” story in early. They still represent themselves as helping the victim but being prevented by a hail of missiles that no-one else saw. Videotapes that might have provided evidence of police misconduct or ineptitude still disappear, or cameras “malfunction”. And the police still get to compare their notes after events involving deaths, just to make sure that their stories are consistent and supportive of the institutional stance. Yes, all good reasons not to shut up.

“Inside Higher Ed”:http://www.insidehighered.com/news/2009/04/03/churchill

More than four years after his comments on 9/11 set off a furor, and four weeks into a trial, a Colorado jury on Thursday afternoon found that the University of Colorado did not fire Ward Churchill for legitimate reasons, but for his political views. A judge will later determine whether Churchill can return to his tenured job as an ethnic studies professor at the university’s Boulder campus. The jury was responsible for awarding damages, and gave Churchill only $1.
To find in Churchill’s favor, the jury had to determine that his political views were a substantial or motivating factor in his dismissal, and that he would not have been fired but for the controversy over his opinions.

I think that this is a reasonable verdict (although it seems to be the product of a “jury split”:http://chronicle.com/news/index.php?id=6250&utm_source=pm&utm_medium=en between a majority who wanted to give him a significant sum and a holdout who wanted to give him nothing). It says that the university was wrong to fire him for his political views (which I strongly suspect it did – what evidence I am aware of suggests that tenured plagiarists “usually get an easier deal”:http://chronicle.com/free/v51/i17/17a00802.htm than you might expect), but also suggests that his academic career wasn’t worth all that much in the first place. I imagine he’ll get his job back if he really wants it, which is about what both he and the president who fired him both deserve.