Saturday, March 13, 2010

Required Reading for Lawyers (and Everyone Else)

The group Keep America Safe recently ran an ad pressuring the Obama Administration to reveal the names of seven Justice Department lawyers (appointed under this Administration) who in the past volunteered to represent Guantanamo detainees. In this weekend's Wall Street Journal, in the Weekend Journal section, are two essays on the subject.

One essay is written by Stephen Jones, the lawyer who represented, upon judicial request,Timothy McVeigh. Mr. Jones' essay is in line with the published opinions of many other lawyers regarding the propriety of the Keep America Safe ad. But his essay also includes harrowing details of Mr. Jones' life during and after his representation of McVeigh.

The other essay is written by Andrew C. McCarthy, who as an A.U.S.A. in the Southern District of New York prosecuted Omar Abdel-Rahman, known as the Blind Sheikh, and his co-conspirators, for the so-called Bridges and Tunnels terrorism plot. Whatever its prescriptive merit, McCarthy's essay is certainly courageous, as he stakes out a position strikingly at odds with the near-universal opinion (shared by lawyers on both sides of what may loosely be called the national security debate) that the Keep America Safe ad was out-of-bounds. McCarthy does a service at least to this extent: he points out a number of relevant legal distinctions between the circumstances of the detainees and the so-called "al Qaeda Seven" on the one hand, and prior defendants and their attorneys on the other hand, that lawyers like Mr. Jones, for example, have used to substantiate the out-of-bounds nature of the Keep America Safe ad. McCarthy writes more extensively on his views here.

The best and most balanced thing I have read on the subject was written by former Attorney General Michael B. Mukasey. That essay calls foul both the demonization of the likes of John Yoo and Jay Bybee, and of the so-called "al Qaeda Seven." And for the same reason.

Friday, March 5, 2010

An Easily Understandable Explanation of Derivative Markets

Perhaps one of the clearest explanations I have seen.


Heidi is the proprietor of a bar in Detroit. She realizes that virtually all of her customers are unemployed alcoholics and, as such, can no longer afford to patronize her bar. To solve this problem, she comes up with a new marketing plan that allows her customers to drink now, but pay later. She keeps track of the drinks consumed in a ledger (thereby granting the customers loans).

Word gets around about Heidi's "drink now, pay later" marketing strategy and, as a result, increasing numbers of customers flood into Heidi's bar. Soon she has the largest sales volume for any bar in Detroit.

By providing her customers freedom from immediate payment demands, Heidi gets no resistance when, at regular intervals, she substantially increases her prices for wine and beer, the most consumed beverages. Consequently, Heidi's gross sales volume increases massively.

A young and dynamic Vice President at the local bank recognizes that these customer debts constitute valuable future assets, and increases Heidi's borrowing limit. He sees no reason for any undue concern, since he has the debts of the unemployed alcoholics as collateral.

At the bank's corporate headquarters, expert traders transform these customer loans into DRINKBONDS, ALKIBONDS and PUKEBONDS. These securities are then bundled and traded on international security markets. Naive investors don't really understand that the securities being sold to them as AAA secured bonds are really the debts of unemployed alcoholics.

Nevertheless, the bond prices continuously climb, and the securities soon become the hottest-selling items for some of the nation's leading brokerage houses.

One day, even though the bond prices are still climbing, a risk manager at the original local bank decides that the time has come to demand payment on the debts incurred by the drinkers at Heidi's bar. He so informs Heidi.
Heidi then demands payment from her alcoholic patrons, but being unemployed alcoholics they cannot pay back their drinking debts. Since Heidi cannot fulfill her loan obligations, she is forced into bankruptcy. The bar closes and the eleven employees lose their jobs.

Overnight, DRINKBONDS, ALKIBONDS and PUKEBONDS drop in price by 90%. The collapsed bond asset value destroys the banks liquidity and prevents it from issuing new loans, thus freezing credit and economic activity in the community.

The suppliers of Heidi's bar had granted her generous payment extensions and had invested their firms' pension funds in the various BOND securities. They find they are now faced with not only having to write off her bad debt but also with losing over 90% of the presumed value of the bonds. Her wine supplier claims bankruptcy, closing the doors on a family business that had endured for three generations, and her beer supplier is taken over by a competitor, who immediately closes the local plant and lays off 150 workers.

Fortunately though, the bank, the brokerage houses and their respective executives are saved and bailed out by a multi-billion dollar, no-strings attached cash infusion from their cronies in Government. The funds required for this bailout are obtained by new taxes levied on employed, middle-class, non-drinkers who have never been in Heidi's bar.

Thursday, March 4, 2010

Viva the Privileges or Immunities Clause of the Fourteenth Amendment?

Randy E. Barnett, professor of constitutional law at Georgetown, and author of "Restoring the Lost Constitution: The Presumption of Liberty", has written an opinion piece in Wednesday's Wall Street Journal that is essential reading for anyone interested, either by inclination or by compulsion, in constitutional law.

The professor deals with the issues covered in the piece more competently than I am able, but here is a preview. The upcoming decision in McDonald v. Chicago is likely to explicitly find the Second Amendment to the U.S. Constitution applicable to the states. And that means Heller will be applicable to the states. Professor Barnett wants, should that happen, that it happen via the Fourteenth Amendment's Privileges or Immunities Clause, not the Due Process Clause, which, the professor seems to believe, does not have a substantive aspect. We last saw the Privileges orImmunities Clause of the Fourteenth Amendment just before the Slaughter-House cases, which did to it what On Deadly Ground (you should thank me for not linking to it) did to Steven Segal's movie career: it continued to exist but without effect. The Privileges or Immunities Clause reads:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Professor Barnett finds the clause's historical marginalization unwarranted, given the plain import of its language. And for reasons of jurisprudential hygiene wants it to be the vehicle by which the Second Amendment is made applicable to the states. However, some of the questions and comments made by the Justices at oral argument on Tuesday suggest to the professor that the Court may pull the well-used lever of the Due Process Clause instead. We'll soon know.

Wednesday, March 3, 2010

An Afternoon in the Law

Today I attended the 2010 John Marshall Harlan '20 Lecture in Constitutional Adjudication at the Woodrow Wilson School for Public and International Affairs on Princeton University's inspiring campus. The speaker was the Chief Justice of the Supreme Court of New Jersey, the Honorable Stuart Rabner. Chief Justice Rabner, like Justice Harlan before him, graduated from Princeton.

Ten minutes before the program was to begin, I involuntarily networked with a man who crossed several seats to get the business going. He was good at the networking wheeze, and before long I had volunteered nearly everything I knew about myself except my social security number. I am proud of the fact that I am uncomfortable networking. Like Bacon's Nature, I do not reveal my secrets, but rather only respond to a line of questioning. Alas, my guy was up to the task, and extracted secrets. Presently and mercifully we were brought to order.

The Chief Justice was introduced to the capacity crowd in Dodds Auditorium by a professor from the Woodrow Wilson school, who recited, apparently without omission, the Chief Justice's embarrassingly long list of absurdly impressive academic achievements. The audience learned too that the Chief Justice's father survived a Soviet work camp. And that the Chief Justice was a Princeton University tour guide while making his way through the institution, trailing clouds of glory. The Chief Justice is a remarkably amiable and intelligent man, and spoke extemporaneously for close to a half hour about New Jersey's constitutional history. He spoke too of the structure of the state's court system, which was overhauled in 1947 and which was used as the model for both the Alaskan and Hawaiian court systems.

The Chief Justice spoke at some length and specificity about a few of the programs the New Jersey courts have initiated. For example, the courts have a program whereby lawyers in the state volunteer to mediate between mortgagees and mortgagors, in an effort to avoid foreclosure proceedings. The courts have also instituted a program (now operating in four counties; soon to be five) where returning veterans who end up in criminal court, in appropriate cases, are diverted onto a counseling track and are assigned a military mentor. This program was inspired by the notion that returning veterans sometimes have trouble assimilating back into society, and that, in those cases, society should make an extra effort to aid that assimilation.

The Chief Justice ended his remarks by stressing how important he considers it that the state's courts extend to all parties procedural due process. Pointing out that because there is always at least one party unhappy with a court's decision, it is imperative that the judicial process be viewed as fair and impartial.

After the Chief Justice's main remarks, he joined the Provost of Princeton University, Christopher L. Eisberger, in those giant leather chairs such people always repair to when the question and answer session begins. The Provost, a graduate of Princeton and the University of Chicago's Law School, and an author of a book on the appointment process of Supreme Court Justices, asked the Chief Justice several of his own questions before eventually asking for questions from the audience. The mundane questions asked by the Provost yielded more interesting answers, mainly because the Provost understood that asking interesting questions to a sitting Chief Justice, who after all must remain circumspect with an eye toward future cases, means you get anodyne answers back. The Princeton students who asked questions of this sort, and who must have been unaccustomed to not getting interesting answers back, stood fast at the microphone after the Chief Justice stopped his devitalizing answers, retreating to their seats only after the Chief Justice blinked at them several times.

Here are some interesting differences between New Jersey constitutional rights and federal constitutional rights, which the Chief Justice cited in the course of his answers. Remember of course that the federal rights set a floor which state constitutional text and interpretation are free to exceed in the direction of greater individual rights:

1) Folks in New Jersey have a reasonable expectation of privacy in the trash they put out on the curb. Under the federal Constitution, that's not so.

2) With respect to a search of a house, for example, a consent must be knowing and voluntary under the federal Constitution. In New Jersey, homeowners/dwellers have the additional protection that the police must inform them they have a right to refuse such a search

3) In New Jersey, a passenger in a car that is stopped and searched, and who is found during that search to possess a gun, for example, has standing to challenge the grounds for the search. Under the federal Constitution, the passenger would not normally have sufficient possessory interest (i.e. does not own the car) to have standing to challenge such a search.

One question elicited the Chief Justice's advice to the students in the audience who are headed to law school. The Chief Justice did not mention that the legal job market is poor, much less suggest an alternate career path on that account. He was talking to Princeton students, after all, who, it was clear from the unspoken assumptions implicit in both the question and answer, were headed to top law schools. The Chief Justice advised the future law students to use their summers to try out firms both big and small, and not to go to law school with too certain an idea of what you want to do. This last bit of advice, in retrospect, and for reasons not contemplated by the Chief Justice, is comically relevant to me.

The questions from the audience exhausted, the Provost reserved for himself the last question of the afternoon. And, apparently unable to help himself, asked the Chief Justice a manifestly interesting question: Does the Chief Justice have a view on trying terrorist suspects in the civilian court system. The Chief Justice declined to offer a view on prospective cases, saying only that such trials have yielded results in the past. Then the Provost offered his own view on the question, which, whether or not correct, was entirely unsurprising.

It was a good afternoon in the law.

Monday, March 1, 2010

Should Everyone Be “Special”?

One of my favorite films in recent years is Disney Pixar’s The Incredibles. The movie tells the story of a family of “Supers” (heroes), who have gone into hiding to escape public scrutiny for tort claims arising out of saving people who “did not want to be saved.” (An interesting thought itself.)

My particular interest in the film centers on the antagonist of the story. A self-declared/self-made “Super” named Syndrome. Syndrome was born without super powers, yet he was driven to become a Super anyway. As a child, his obsession with the Supers led him to attempt to help the protagonist, Mr. Incredible, catch a villain. The results were disastrous. The young Syndrome appeared on the scene as “Incredi-boy,” complete with his own outfit and technology that made up for his lack of innate super powers. Because of his interference, the villain they were after got away, and Mr. Incredible sent the young would-be helper packing. Years later, this child grew to be a bitter and determined man who was driven to perfect his technological aids with one purpose. His aspiration was to destroy all true Supers and sell his products to the masses, “so that when everyone is special, no one is.”

This scene, to me, is a key moment in the film. Syndrome is proclaiming his indictment of outcome-based measures of performance. He fails to recognize his own unique talent and giftedness with technology, and instead focuses only on what he is not – innately “Super.” His desire to strip the world of all who have such gifting and replace it with his form of power is problematic for an obvious reason. People who do have such a unique set of talents should not be punished. A theme throughout the film is the depression the Supers experience as a result of suppressing who they truly are. Less obvious, though, is the somewhat ironic problem brought about by Syndrome's plan. His desire to equalize the population (everyone will be Super, therefore no one will be) actually works to diminish his own gifting. He is, in effect, saying that there is only one way to be special. Being Super, whether by nature or machine, is his only metric for success.

The fact is that we are all uniquely gifted in some way. His own talents are evident when one considers the vast island kingdom he has managed to establish through his ingenuity. Instead of seeing himself as uniquely talented, he only sees what he is not. Comparing ourselves to others and wondering why we aren’t this or that doesn’t help us become our best, it only discourages us that we are not like another. I suppose my thought-kernel for the afternoon is to focus less on what I am not and more on what I am.