Louis Brandeis - innovator - The Brandeis Brief

Today's Times Book Review carries a review of the new biography of Louis D. Brandeis by Melvin I. Urofsky. Alan Dershowitz correctly notes the impact on the practice of law made by Brandeis's innovation.

Brandeis filed the now legendary Brandeis Brief in the United States Supreme Court in Oregon in Muller v. Oregon, 208 US 412 (1907). He defended the State of Oregon's law limiting the hours of female laundry workers by citing an array of medical and sociological articles about the health risks to female workers.

The most famous use of the technique was in the petitioners' brief in Brown v. Board of Education. A "Social Science Statement of Counsel" was appended to petitioners' brief. It summarized the evidence that `separate but equal' schools were inherently unequal because legal segregation stigmatized black students and retarded their development. The materials were cited in Footnote 11, supporting the momentous repudiation of Plessy v. Ferguson:

"Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system." 10

Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. 11 Any language [347 U.S. 483, 495] in Plessy v. Ferguson contrary to this finding is rejected.

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment."

The technique became routine. In my own practice, in cases like Collins v. Union County Jail, our friend of the court brief relied almost entirely on evidence from medical and psychological literature on rape trauma. In the New Jersey Supreme Court we successfully argued on behalf of the National Organization for Women that the New Jersey Tort Claims Act's limitation of actions against government to "loss of a bodily function" necessarily comprehended purely psychological injury - since that was the central impact of rape - which infrequently causes permanent physical harm.

The crisis of unrepresented persons in removal proceedings

Cyrus Mehta, immigration attorney and Adjunct Professor at Brooklyn Law School, has summarized effectively HERE the crisis of representation of those in removal proceedings: a diffuse labyrinth that some 400,000 detainees will enter this year, some for long stays. It is a second, parallel prison system administered by the Department of Homeland Security.

The largest government agency, DHS bears a name with a Prussian ring. It is a bureaucratic monument to America's stunned, unifying, sometimes excessive, reactions to bolts from the blue, the brutal surprise attacks of September 11, 2001.

Of the 300,000 who now face deportation every year only 40% are represented by counsel. Of those detained only 10% are represented Mehta cites the powerful observation of Federal Appeals Judge Robert Katzmann in Aris v Mukasey, 517 F.3d 595 (2d Cir. 2008):

The importance of quality representation is especially acute to immigrants, a vulnerable population who come to this country searching for a better life, and who often arrive unfamiliar with our language and culture, in economic deprivation and in fear. In immigration matters, so much is at stake – the right to remain in this country, to reunite a family, or to work.

Katzmann, himself inspired by the experience of his grandparentst who fled the Nazis, addressed the City Bar, calling for a competent corps of volunteer attorneys has inspired a movement among lawyers to provide volunteer assistance to those who are unrepresented. The Varick Street Project was born, as recounted in the Times HERE.

Our borders cannot, of course, be open the way they were when my great grandparents arrived from Galway at Castle Clinton at The Battery. But the fact is that millions are here, their lives entwined with ours in blended families of immigrants and native born, trapped in the labyrinth that self-defense, aspiration, evasion, ineffective immigration controls, xenophobia, and harsh enforcement have created.

Fortunately the pro bono efforts of many lawyers makes a difference. But there is no just alternative to the politically unlikely demand we on the Editorial Board of New Jersey Law Journal have VOICED: create a federally-funded corps of competent attorneys to represent those facing removal from the United States.

The Supreme Court turns to the law governing lawyers

Renee Knake at Legal Ethics Forum notes that the Supreme Court has turned much of its attention this term to the law governing lawyers. HERE is her list

(1) Do provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act regulating attorneys’ advice to clients and mandating certain advertisement disclosures violate the First Amendment? Milavetz, Gallop & Milavetz, P.A., et al. v. United States, 541 F.3d 785 (8^th Cir. 2008)

(2) Is an attorney’s faulty advice grounds for setting aside a criminal defendant’s guilty plea? Padilla v. Commonwealth of Kentucky, 253 S.W.3d 482 (Ky. 2008)

(3) When, if ever, does a novice attorney’s inexperience constitute ineffective assistance of counsel? Wood v. Allen, 542 F.3d 1281 (11^th Cir. 2008)

(4) Should a court’s order compelling production of privileged materials be immediately appealable? Mohawk Industries, Inc. v. Carpenter, 541 F.3d 1048 (11^th Cir. 2008)

(5) Can quality of performance and results obtained justify an enhancement to an attorney’s fee award under a federal fee-shifting statute? Perdue v. Kenny A., 532 F.3d 1209 (11^th Cir. 2008)

(6) May a prosecutor be liable for civil damages for procuring false testimony and introducing that evidence against a criminal defendant at trial? Pottawattamie County v. McGhee, 547 F.3d 922 (8^th Cir. 2008)

Prof. Knake's article discussing the case and their potential impact on the practice of law is HERE.

With Roberts in the lead my basic reaction is always "how much damage will they do?"

Anyway, here is my guess on how the Court will rule. May as well go out on a limb early:

1) NO [ 11 U.S.C. 526 (a) (4) prohibits only pre-filing borrowing that is intended to defraud creditors, not, for example, refinancing a loan in order to reduce interest rates on debt preparatory to filing a plan of reorganization under Chapters 13 or 11.]

2) NO [Even if defendant's attorney failed to tell immigrant Vietnam Vet and marijuana dealer that he faced deportation as a consequence of his guilty plea, that failing was collateral to guilt or innocence and is not comprehended by the 6th Amendment right to effective assistance of counsel.]

3) NOT HERE [Only incompetence in the form of a plainly evident failure to function as an adversary is ineffective assistance of counsel. Here habeas petitioner and death row defendant was of low intelligence but his history as a fork lift operator shows that he was capable of independent functioning, therefore reasonably found by the state court to not be mentally retarded and ineligible for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002).

4) YES [But only if an order to disclose privileged communications would render appeal in the event of error an ineffective remedy, creating harm such as substantial damage to to reputation which is irreparable by a remedy at law.]

p.s. - Oral argument was October 5, 2009. Though Scalia was skeptical Roberts seemed sympathetic to the ABA position, expressed in an amicus brief - that disclosure orders should be immediately appealable where, as here, the claim is that the attorney client privilege was waived. As I point out above, disclosure may make the issue moot, if that's the right thing to say when you mean that the horse is out of the barn. - gwc 10/6/09

5) NOT HERE. [City of Burlington v. Dague, 505 U.S. 557 (1992) permits fees in excess of the lodestar only in "rare" cases - and this is not one. Plaintiffs' counsel for class of foster children were awarded $10 million at hourly rates from $75-$495, plus $4.5 million enhancement payable by the State of Georgia. Counsel is entitled only to a reasonable fee payable by defendant state, not to a result-enhanced fee such as a prevailing private party might agree to pay from its own funds.]

6) NO [What part of absolute prosecutorial immunity from civil liability don't you understand?]

p.s. September 24, 2009. SCOTUS Blog has posted links to amicus briefs by the Solicitor General in Padilla v. Kentucky, Mohawk Industries v. Carpenter, and Pottwattomie County v. McGhee.

No surprises: in Padilla the conduct of the defense attorney is found ineffective but inconsequential because defendant cannot prove a rational person would not have accepted the plea even with knowledge of the deportation consequences; in Mohawk Industries the discretion of the Courts of Appeals to issue mandamus is deemed adequate assurance against erroneous discovery orders; in McGhee the "execrable" conduct of the lawyer is deemed insufficient to overcome the policies in favor of absolute prosecutorial immunity. - gwc

p.s. A SEVENTH case on the law governing lawyers, Astrue v. Ratliff has been taken by the Supreme Court. The question is whether the fee in an Eqal Access to Justice case belongs to the client or to the lawyer.

Prof. Renee Knake's preview essay of the lawyering issues this term can be found HERE.

China prepares for its 60th anniversary - The Big Picture - Boston.com

China prepares for its 60th anniversary - The Big Picture - Boston.com

They know how to do things BIG.

If you liked the Olympic opening ceremony wait till you see the 60th anniversary of the founding of the People's Republic. Brilliant photo essay (click above) by the Boston Globe 波士顿地球！

S. 1551 - Arlen Specter measure would restore aiding and abetting liability in securities fraud cases

There is no stronger case for judicial recognition of an implied cause of action than when a statute declares a wrong. Aiding and abetting a fraud has been a crime for 100 years. 18 U.S.C. § 2 declares:

“(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal”

That substantial aid to a fraudulent scheme is actionable has been declared, as Justice Stevens observed (dissenting) in Central Bank of Denver, N.A. v. First Interstate Bank of Denver, 511 U.S. 164 (1994):

“In hundreds of judicial and administrative proceedings in every Circuit in the federal system, the courts and the SEC have concluded that aiders and abettors are subject to liability under §10(b) and Rule 10b-5.”

Yet the U.S. Supreme Court, in Stone Ridge Investment Partners v. Scientific Atlanta, 552 U.S. 148 (2008), held that liability even for active aiding and abetting of a fraud is not permitted under the Securities and Exchange Commission Act of 1934, 15 U.S.C. §§ 78a et seq., and the SEC’s Rule 17 C.F.R § 240.10b-5 which supports a tort remedy for securities fraud.

A measure introduced by Arlen Specter (D. PA) the Evaluating S.1551: The Liability for Aiding and Abetting Securities Violations Act of 2009 would overturn Stone ridge and embrace a private cause of action against those who knowingly aid and abet a fraud - whether law firms, accountants, or investment advisors.

Recognition of a private cause of action in tort is an elementary proposition. It is embraced by the Restatement of Torts (2d) which declares, in § 876 (b) that an actor is liable for harm resulting to a third person as a result of the tortious conduct of another “if he . . . knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other.”

At a hearing September 17, 2009 held by the Senate Judiciary subcommittee on crime and drugs Columbia Professor John Coffee supported the measure - albeit urging caps on damages for secondary tortfeasors. In a post-Madoff world, in which the SEC was hoodwinked by a con artist whose scheme was exposed (to no effect) by an independent observer - Harry Markopolos, the need for a private remedy seems blazingly clear. Coffee’s written testimony is HERE. Video of the hearing is HERE. The complete record of the hearing can be found HERE.

We Are All New Yorkers Now

Eight years ago, 7 days after the catastrophe we now call 9/11 I wrote this essay. It was accepted by my fellow members of the editorial board of New Jersey Lawyer, the New Jersey State Bar Association's weekly newspaper.

New Jersey Lawyer Weekly

September 24, 2001

10 NJL 1814

Editorial

We Are All New Yorkers Now

At what point shall we expect the approach of danger? By what means shall we fortify against it? Shall we expect some transatlantic military giant to step the Ocean and crush us at a blow? Never! All the armies of Europe, Asia and America combined, with all the treasure of the earth (our own excepted) in their military chest, with a Bonaparte for a commander, could not by force take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years.

- Abraham Lincoln (1838)

At these points now do we expect the approach of danger: when a tourist visa is granted, when a man named Mohammed boards a plane, when a flight takes off from Newark bound for San Francisco, when we enter the elevator and push the button for the 44th floor, when your train stops in the tunnel, when the cell phone rings.

On The Day After, New Yorkers woke to a silent city. Dawn normally brings traffic helicopters and the background hum from the highways. On The Day After, New York was patrolled by military helicopters. An aircraft carrier was posted off the white sand beaches of Jones Beach State Park. “Tasked to provide air defense for New York”, said the NORAD commander. Air Defense? For New York? At the gateways to New York Harbor - the Throgs Neck, George Washington, and Verrazano bridges Coast Guard cutters on picket duty barred civilian traffic. No fuel, no stone, no freight, no fishermen’s skiffs could pass. No cars entered Manhattan. Traffic at mid-day was lighter than Sunday morning 7 AM.

The glistening symbol of the City is gone. A thick plume of smoke rose for days, marking the spot where thousands of the fallen towers’ workers were buried. With each wind shift another boro felt the sting of the acrid smoke. A day of mourning stretched into weeks still without end. The burials that may never come still lie dreadfully before us.

First came the offers of blood for the wounded - who never got to the hospital. Then came the firefighters, EMT’s, and construction workers from Ohio, from Tennessee, from New Jersey and Massachusetts to clear the rubble and honor the dead. Soon we saw flags fluttering from car antennas and hung from balconies and fences.

They came because New Yorkers were killed by planes filled with hostages bound from Boston for LA, because the captors incinerated other Americans along with their unmourned selves as American Airlines Flight 77 slammed into the Pentagon. They came for those who struggled with the attackers and crashed in a field in Somerset, Pennsylvania. They came because the distinction between combatants and non-combatants has been erased. We are all New Yorkers now because we are all Americans, and because we are all combatants now - and do not know the face of the enemy.

Ted Kennedy's letter to Barack Obama

Dear Mr. President,

I wanted to write a few final words to you to express my gratitude for your repeated personal kindnesses to me - and one last time, to salute your leadership in giving our country back its future and its truth.

On a personal level, you and Michelle reached out to Vicki, to our family and me in so many different ways. You helped to make these difficult months a happy time in my life.

You also made it a time of hope for me and for our country.

When I thought of all the years, all the battles, and all the memories of my long public life, I felt confident in these closing days that while I will not be there when it happens, you will be the President who at long last signs into law the health care reform that is the great unfinished business of our society. For me, this cause stretched across decades; it has been disappointed, but never finally defeated. It was the cause of my life. And in the past year, the prospect of victory sustained me-and the work of achieving it summoned my energy and determination.

There will be struggles - there always have been - and they are already underway again. But as we moved forward in these months, I learned that you will not yield to calls to retreat - that you will stay with the cause until it is won. I saw your conviction that the time is now and witnessed your unwavering commitment and understanding that health care is a decisive issue for our future prosperity. But you have also reminded all of us that it concerns more than material things; that what we face is above all a moral issue; that at stake are not just the details of policy, but fundamental principles of social justice and the character of our country.

And so because of your vision and resolve, I came to believe that soon, very soon, affordable health coverage will be available to all, in an America where the state of a family's health will never again depend on the amount of a family's wealth. And while I will not see the victory, I was able to look forward and know that we will - yes, we will - fulfill the promise of health care in America as a right and not a privilege.

In closing, let me say again how proud I was to be part of your campaign- and proud as well to play a part in the early months of a new era of high purpose and achievement. I entered public life with a young President who inspired a generation and the world. It gives me great hope that as I leave, another young President inspires another generation and once more on America's behalf inspires the entire world.

So, I wrote this to thank you one last time as a friend- and to stand with you one last time for change and the America we can become.

At the Denver Convention where you were nominated, I said the dream lives on.

And I finished this letter with unshakable faith that the dream will be fulfilled for this generation, and preserved and enlarged for generations to come.

With deep respect and abiding affection,

[Ted]

"Deportation without Representation" NJ Law Journal calls for "corps of competent lawyers" to represent immigrants in removal proceedings

The New Jersey Law Journal Editorial Board has called on Attorney General Eric Holder to go beyond his reversal of Bush Administration policy which denied that deportees were entitled to 5th Amendment due process.

The crush of cases is such and immigration law's complexity so great that pro bono volunteers lawyers, non-profit advocacy groups, and immigrants themselves will never be able to furnish enough competent lawyers to assure an adequate hearing for those facing deportation, said the Board in its September 3 editorial:

Deportation Without Representation

New Jersey Law Journal

Every year, 300,000 aliens face removal from the United States in proceedings before 200 immigration judges. Many are in detention pending deportation; others are granted the privilege of voluntary departure. Many appeal to the Justice Department's Board of Immigration Appeals (BIA) and then petition the circuit courts for review.

Circuit judges have responded critically. Second Circuit Judge Robert Katzmann described as a "tsunami" the flood of immigration cases, which had gone from 4 percent to 39 percent of the Second Circuit's docket. In 2006, John Mercer Walker, then chief judge of the Second Circuit, pointed out, "For the BIA to keep current on its docket, even with streamlining so that the disposition is by a single judge, each judge must dispose of nearly 4,000 cases a year — or about 80 per week — a virtually impossible task."

The problem is compounded by the fact that many immigrants cannot afford lawyers and that frequently the quality of the lawyers retained leaves much to be desired. Judge Katzmann said last year, "By the time we get the case, it's often too late. It's often hard to get a good night's sleep when you feel the lawyering in a case has not been good."

The problem was mitigated by the BIA's 1988 ruling, in Matter of Lozada , that ineffective assistance of counsel could be a basis for reopening or setting aside an adverse removal or deportation order. Most circuit courts have embraced that approach, including the Third Circuit, which held in Fadiga v. Attorney General, 488 F.3d 142 (2007), that incompetence of counsel may make the proceeding fundamentally unfair and give rise to a Fifth Amendment due-process objection.

Although former Attorney General Michael Mukasey repudiated Lozada , Eric Holder has reversed that position in a formal opinion, 25 I&N Dec. 1 (A.G. 2009), and has embraced the Fifth Amendment assurance of a fair hearing, which may be jeopardized by ineffective assistance of counsel.

But although there is a statutory "privilege" to hire a lawyer, 8 U.S.C. 1362, the law provides that it must be "at no expense to the government." Reviewing courts therefore have no ability to provide counsel at public expense.

Volunteer attorneys and the financial resources of often impoverished immigrant aliens will never adequately assure the availability of competent counsel to those facing deportation. Many of those facing removal are children who know only America. Others are noncitizen parents who gave birth here to children who are natural-born American citizens. The complications are many, the rules complex and the consequences of removal often drastic.

To deal competently and fairly with the millions of foreign nationals living here who may be subject to removal, a competent corps of lawyers is needed. No court order will bring about such a corps. That is the province of Congress. We know how grave are the budget issues facing the nation. But we know too that democracy depends on the ability to effectively assert rights. We therefore urge the attorney general to bring the problem to the attention of the Congress, and to study how competent assistance of counsel can be afforded to persons facing removal from the United States.

Republished here with permission. c. 2009 Incisive Media US Properties, LLC. All rights reserved. Further duplication without permission is prohbited.

On the Irish Waterfront: a Jesuit workers' priest and the Hollywood director Bud Schulberg

There was a movement in Catholicism of workers' priests - men who ministered to and championed the cause of workers. Bud Schulberg lionized one played by Karl Malden in the unforgettable tale of betrayal On the Waterfront.

Fordham theology Professor and historian James T. Fisher is here interviewed about the Jesuit labor priests of the New York Waterfront. One of them, Fr. John M. Corridan, was a driving force in bringing about the Waterfront Commission which sought to "clean up the docks". Fisher explains that Karl Malden's character in On the Waterfront was based on Father Pete Corridan.

Corridan and his spiritual mentee Bud Schulberg are the central figures in Fisher's On the Irish Waterfront: The Crusader, the Movie and the Soul of the Port of New York, a new release from Cornell University Press.