Bratton: We Cannot Arrest our way out of these problems

Senator Jim Webb continues to press the National Criminal Justice Commission Act of 2009, which he first announced in Parade Magazine in an article Why we must fix our prisons.

Testifying at Senate Judiciary Committee hearings on June 11, Los Angeles Police Commissioner William Bratton made some key points:

* "We cannot arrest our way out of these problems, including the national gang crime explosion."

* The war on Drugs must be replaced by a treatment and interdiction-oriented approach.

* We must abandon the policy of jailing the mentally ill.

Bratton is the man who deserves the credit claimed by Rudy Giuliani for reversing the crime rate in New York City. Bratton replaced random, reactive patrols with targeted-community-based preventive police work. The result: reducing the jail population in New York City's Rikers Island from 22,000 to 11,000.

The hearings were held in support of Senator Jim Webb's proposal to overhaul our criminal justice system. We hold 25% of the world's prisoners, yet have only 5% of the world's population. We imprison more people, longer, and in more harsh conditions. Our relentless "get tough" policies have done and are doing enormous damage to minority communities, as Harvard Law Professor Charles Ogletree testified:

As overall numbers of individuals imprisoned or monitored by the government have grown, so have racial disparities among this population. African Americans make up only 13 percent of the overall population, and Latinos 15 percent. However, 40 percent of the prison population is African American and 20 percent is Latino.

One in every 8 black males in their twenties is in prison or jail on any given day, as compared with 1 in 26 Latinos, and 1 in 59 white males. Black males have a 1 in 3 chance of serving time in prison, and Latinos 1 in 5, as compared with 3 in 50 for white males.

According to Harvard sociologist Bruce Western, the U.S. penal system has become ubiquitous in the lives of low-education African American men, and is becoming an important feature of a uniquely American system of social inequality.

These large disparities are due to a constellation of complex and interrelated factors that include poverty, high rates of joblessness, low levels of education, and the clustering of African Americans and Latinos in concentrated urban areas. They are also related to very deep, systemic flaws within the criminal justice system.

The testimony and webcast of the Senate hearings can be found here.

Pat Buchanan on Sotomayor: waving the dagger and sprinkling poison

Pat Buchanan, Jesuit educated in Washington, D.C. at Gonzaga College High School under the old rule, got his basic training in rhetoric the way I got mine: reading Cicero’s orations against the anti-Republican conspiracy of L. Sergius Catilina.

Cicero employed every rhetorical device: wit, learning, the curt and quick reply, appeal to reason, and to the divinity. But Cicero also used hyperbole, ad hominem attack, and a device he deplored in the followers of his adversaries: “how to wave daggers about and sprinkle poisons”. (2d Oration, M. Grant, tr.) Buchanan has developed the last two skills with particular relish.

In his recent screed in Human Events “Miss Affirmative Action 2009" Buchanan says of 2d Circuit Court of Appeals Judge Sonia Sotomayor “her academic career appears to have been a fraud from beginning to end, a testament to Ivy League corruption.”

As Buchanan notes, Sotomayor said in the early 1990's at a PLI panel discussion on women in the judiciary "If we had gone through the traditional numbers route of those institutions," says Sotomayor, "it would have been highly questionable if I would have been accepted. ... My test scores were not comparable to that of my classmates." (See video here)

Buchanan ignores Sotomayor's elaboration that because she had graduated first in her class from Cardinal Spellman High School in the Bronx, she “was readily accepted” at Princeton; and that her SAT scores, while below the norm for Princeton, were “not so far off the mark that I could not succeed there.” Her election to Phi Beta Kappa shows at least that. Her admission at Yale Law School was similarly driven by her summa cum laude performance as an undergraduate.

Such nuance is lost in Buchanan’s account which quickly escalates to the hyperbolic language of resentment, a Buchanan trademark - as Lance Morrow observed in Time magazine a dozen years ago. Buchanan declares there is “no need for name-calling” and then immediately begins to wave the dagger and sprinkle the poison of white-backlash:

“Thus, Sotomayor got into Princeton, got her No. 1 ranking, was whisked into Yale Law School and made editor of the Yale Law Review -- all because she was a Hispanic woman. And those two Ivy League institutions cheated more deserving students of what they had worked a lifetime to achieve, for reasons of race, gender or ethnicity.”

Sotomayor was “whisked”, “all because”, the Ivy League “cheated more deserving students” [who also graduated first in their class?] of a “lifetime” of effort. How quickly the Buchanan rhetoric escalates, how sparse evidence suffices for Buchanan to concoct a vast conspiracy by which a woman is vaulted to the top of her class at Princeton, one of 20 Hispanics among 2,000 students, arbitrarily anointed for greatness, all to serve the cause of an unjust racial order, to embed a “race-based bigotry against white males so that persons of color can receive the rewards of society that they could not win in free and fair competition.”

The Times describes Sotomayor’s efforts: “She spent summers reading children’s classics she had missed in a Spanish-speaking home and “re-teaching” herself to write “proper English” by reading elementary grammar books.” Despite his opening abjuration of name-calling Buchanan descends quickly to ad hominem mockery: “How do you graduate first in your class at Princeton if your summer reading consists of "Chicken Little" and "The Troll Under the Bridge"?”

I point out to Mr. Buchanan that at my all-boys Jesuit high school Brooklyn Prep (whose admission test Justice Scalia personally told me he had failed) we were drilled two hours a week by Mr. O’Connell to purge the Brooklynese "dese dems and doe's". We recited “trippingly off the tongue”, in unison, “mares eat oats and does eat oats and little lambs eat ivy”, and “John Styu-art Mill, by a mighty effort of the will, wrote Principles of Political Economy”.

We read E.B. White’s explanation of why “These are the times that try men’s souls” soars over “these are trying times for men’s souls”. We diagramed sentences in Latin, Greek, French, and English. Such work apparently constitutes part of a meritorious “lifetime” of effort only when made by white males engaged in “free and fair competition”. When made by a Puerto Rican woman from a Spanish-speaking home in the “Projects” it becomes flesh for Buchanan’s dagger.

Buchanan claims (without the slightest evidence) that “no one has brought forth the slightest evidence [Sotomayor] has the intellectual candlepower to sit on the Roberts court”. As but a beginning effort to judge the evidence (beyond her years on the bench since her nomination by George H.W. Bush), I suggest the PLI video above (Sotomayor’s remarks are at 9:04, 35:39, 42:25); and her remarks on the role of experience in judicial work here.

For the final proof I look forward to her (third) Senate confirmation hearings. In particular I will relish the moment when she tells the nation that she is proud to be a Puerto Rican from the Bronx. There will be many moist eyes watching her on television. And few will hear Pat Buchanan grinding his teeth as his forces lose another round. Change has come to America.

John Yoo must answer civil rights suit by Jose Padilla

Judges at the trial level are taught to defer to those above. The habit of mind that tends to find a conciliatory approach, to reach for consensus, to narrow difference is deeply embedded in judical temperament. But choices must be made when adversaries press a point - as have the attorneys for plaintiff Jose Padilla, the al Qaeda supporter who suffered at the hands of captors whose methods were authorized by the opinions of high ranking lawyers in the United States Department of Justice - John Yoo, now a Berkeley law professor.

Jeffrey S. White, a federal judge of the Northern District of California, has confronted such a moment. He has allowed a "Bivens" civil rights action to proceed against the former Justice Department lawyer. 42 USC 1983, the post civil war statute authorizing lawsuits against oppression by state officials does not reach federal officers. For that the United States Supreme Court, in the landmark Bivens v. Six Unknwon agents of the Federal Bureau of Narcotics, said that the constitution itself authorizes a civil remedy. That 1971 opinion by Justice William Brennan is the foundation on which Padilla's complaint and White's opinion, rest.

Judge White recognizes the choices to be made. Here is his opening statement. A link to the full opinion follows.

[War] will compel nations the most attached to liberty to resort for repose and

security to institutions which have a tendency to destroy their civil and political

rights. To be more safe, they at length become willing to run the risk of being

less free.

The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).

The issues raised by this case embody that same tension – between the requirements of war and the defense of the very freedoms that war seeks to protect. After the brutal and unprecedented attacks on this nation on September 11, 2001, the United States government responded to protect its citizens from further terrorist activity. This lawsuit poses the question addressed by our founding fathers about how to strike the proper balance of fighting a war

against terror, at home and abroad, and fighting a war using tactics of terror.

Padilla v. Yoo: Order Granting in part and Denying in Part Defendent's Motion to Dismiss

Publish at Scribd or explore others: Law & Government Business & Law jose padilla john yo

Post-script:

Brian Tamanaha has a supportive summary of key elements of Judge White's ruling (e.g. on qualified immunity) , and many readers comment at Balkinization here. - gwc

PPS: John Yoo has filed his brief on appeal HERE

The nuclear option for discovery abuse: default and counsel fees

Red Spot Paint & Varnish Co.'s home page says:

"The history of our company is filled with ups and downs and ups. Our business has, by design, depended on research and development, and with research comes failures...more often than success, usually. " June 5 was a downer.

U.S. District Judge Larry McKinney excoriated Red Spot - and its law firm Bose McKinney & Evans. BME had acted "like a chameleon", assisting an unsupportable denial that its client Red Spot had used two dangerous chemicals, failing to inventory 68 boxes of discovery materials, and failing to counsel its client to make a full disclosure.

For this the defendant/client was adjudged in default, defense experts barred from disputing causation, and liability imposed in an environmental cleanup case. For its lack of professional independence Bose McKinney was ordered to pay half of plaintiff's counsel fees and costs. The full opinion is here. The story and other blog links at ABA Journal are here. An excerpt from the order follows:

The Court concludes that Red Spot’s conduct can only be described as

contumacious, wilful, and egregious. BME compounded the problem by, like a chameleon, becoming indistinguishable from its client and allowing Red Spot, namely Storms and Henry, to evade the truth.

Through its defiant conduct, Red Spot has forfeited the right to have the issues determined on the merits. Therefore, the Court must conclude that only

the most onerous sanction, default, can remedy Red Spot’s violation of the rules of

discovery; Fed. R. Civil P. 37(b)(2)(A)(vi); 37(c)(1); or can remedy Red Spot’s complete disregard of the legal process as protected by the inherent authority of the Court. Greviskes, 417 F.3d at 758-59. The Court, therefore, GRANTS 1100 West’s Motion for Sanctions.

The Court DECLARES, pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 6972(a), and

by DEFAULT, that defendant, Red Spot Paint & Varnish Co., Inc., is liable for taking all necessary action to abate and otherwise respond to the aromatic contamination plume and the TCE/PCE contamination plume on plaintiffs’, 1100 West, LLC, property.

Plaintiff, 1100 West, LLC, shall file its proposed remedial plan on or before Tuesday, August 4, 2009. On or before Monday, October 5, 2009, defendant, Red Spot Paint & Varnish Co., Inc., shall, in writing, SHOW CAUSE why the remedial plan proposed by plaintiff, 1100 West, LLC, should not be ordered as the remedy in this cause. A Show Cause Hearing is hereby SET for Wednesday, November 4, 2009, at 8:30 a.m., in Courtroom 202, Birch Bayh Federal Building and United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana.

Defendant’s, Red Spot Paint & Varnish Co., Inc., expert(s) shall only testify as to the appropriateness of the remedial plan; they shall not be allowed to testify as to causation at said hearing.

Further, 1100 West shall be entitled to its attorneys’ fees and costs for all discovery dating from May 23, 2006, to the present, including expert discovery within those dates, and for its attorneys’ fees and costs associated with the October 15 and 17, 2008, hearings, and its Motion for Sanctions. 1100 West shall file its brief in support of its accounting of reasonable attorneys’ fees and costs within thirty days of the date of this Order. Red Spot and BME shall have fifteen days to file a brief in opposition to said accounting.

Red Spot and BME shall each pay one half of said reasonable attorneys’ fees and costs as they are determined by the Court, pursuant to Federal Rule of Civil Procedure 37(b)(2)(C) and pursuant to the inherent authority of the Court.

Effective Assistance of Counsel for Immigrants: Change you can believe in

Last August the Blog of Legal Times reported that 2d Circuit Judge Robert Katzmann

and the 9th Circuit's M. Margaret McKeown had described as a "tsunami" the flood

of immigration cases which had gone from 4% to 39%! of the Court of Appeals docket.

BLT reported: "By the time we get the case, it's often too late," said Katzmann. "It's often hard to get a good night's sleep when you feel the lawyering in a case has not been good." The surge in cases began, panelists said, after then-Attorney General John Ashcroft streamlined the removal process in "post 9/11" 2002 measures. That, McKeown said, had the effect of giving the attorney general "a clean plate and a clean desk".

In the Compean case another AG - Michael Mukasey - made things worse on January 7, 2009. He set aside the 20 year-old Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), which allowed immigrants a new chance if they could prove their attorneys had been ineffective. Immigrants have no right to counsel, Mukasey affirmed, unless charged with a crime. True enough if the only foundation for "effective assistance of counsel" is in the 6th Amendment, which establishes the adversary nature of the criminal justice system.

Immigration lawyers of the American Immigration Law Foundation (AILF) sounded the alarm in a brief urging Attorney General Eric Holder to reverse the policy. Circuit court decisions like Aris v. Mukasey, 517 F. 3d 595, 600-601 (2d Cir. 2008) held that 5th Amendment due process demands fundamental fairness - which is undermined if a lawyer in a removal proceeding fails to meet the standards of competence demanded by rules of professional conduct.

Now Holder has responded by vacating the Compean ruling and directing immigration judges to apply existing standards.

Once before in my career have I seen this kind of response by courts to repudiate executive policy - that in protest of the Reagan administration's policy of "non-acquiescence" in court rulings in Social Security disability cases. SSD cases swelled the federal court dockets. As a practitioner I found myself often before U.S. District judges angered by the United States policy, disposed to reverse denials of benefits, and ready to award benefits and approve Equal Acccess to Justice Act counsel fees under 5 USC 504.

Fight terror - speak Mandarin?

URUMQI: Teaching Mandarin to students in the remote Xinjiang Uygur autonomous region was helping the fight against terrorism, chairman of the autonomous region Nur Bekri said.

"Terrorists from neighboring countries mainly target Uygurs that are relatively isolated from mainstream society as they cannot speak Mandarin. They are then tricked into terrorist activities," Bekri said. The China Daily story is here.

The Uyghur autonomous region has a population of 20 million, 60% Uyghur or Kazhak. It is the old assimilate or separate problem. We know how it worked out in the USSR - mixed results, shall we say.

This measure can be contrasted to that of April 10. At a stadium filled with 4,000 local officials in Xinjiang, authorities announced the Supreme Court had upheld the judgments and that executions were imminent for two men who carried out a 2008 attack that killed 17 border guards. A few days later another vehicle bomb was exploded in the province. The China Daily reports are here and here.

That the will and means could be mustered to kill 17 paramilitary border police highlights the depth of the problem - one likely to be mitigated only slightly by assimilationist measures like Mandarin language study.

China is not an ideological union like the USSR. It is a proud ethnic giant unlikely to relinquish sovereignty in minority regions such as Xinjiang and Tibet. But the development and persistence of such centripetal forces tells us that the status quo is not a viable option. The assimilation-autonomy conundrum is far from resolution.

image: China Daily, August 4, 2008

Hillary Clinton on the 20th Anniversary of the Tianmen Square crackdown

Hillary Rodham Clinton

Secretary of State

Washington, DC

June 3, 2009

Message on the Twentieth

Anniversary of Tiananmen Square

On this the 20^th anniversary of the violent suppression of demonstrations in Tiananmen Square by Chinese authorities, we should remember the tragic loss of hundreds of innocent lives and reflect upon the meaning of the events that preceded that day.

Hundreds of thousands of protesters took to the streets for weeks, in Beijing and around the country, first to honor the late reformist leader Hu Yaobang and then to demand basic rights denied to them.

A China that has made enormous progress economically, and that is emerging to take its rightful place in global leadership, should examine openly the darker events of its past and provide a public accounting of those killed, detained or missing, both to learn and to heal.

This anniversary provides an opportunity for Chinese authorities to release from prison all those still serving sentences in connection with the events surrounding June 4, 1989. We urge China to cease the harassment of participants in the demonstrations and begin dialogue with the family members of victims, including the Tiananmen Mothers. China can honor the memory of that day by moving to give the rule of law, protection of internationally-recognized human rights, and democratic development the same priority as it has given to economic reform.

*****

A contemporary TV news report of the military break up of the Tiananmen encampment is here. - GWC

PRN: 2009/538

images: copyright Magnum

Amos Elon on The Israel-Arab Deadlock

As Barack Hussein Obama heads for the mid-east - to engage the Muslim Arab nations, we are told - I am reminded of Amos Elon, who died last week. His obituary in the Times is here. I have only once set pen to paper to write about the Israeli-Arab conflict - and that to eulogize the slain Yitzhak Rabin.

In the mid '70's I was active in the National Lawyers Guild, editing its paper among other things. At a meeting I spoke with the PLO's UN representative and was stunned by his blunt talk of solving problems with a single bullet. I understood that holocaust survivors saw Israel's survival as an utter necessity. And that the Palestinians saw in it only catastrophe. I saw no place for me in the fight and so have been a passive observer, expecting that ultimately the two state solution's simple logic would carry the day.

Over the next three decades I read the work of Amos Elon in the New York Review of Books - long my favorite periodical. Elon's death prompted me to look back at the Review's archives and find this 1968 !! essay The Israel Arab Deadlock. I certainly did not read it at the time: I was in a fishing village just north of Bombay, serving in the Peace Corps. An unblogly lengthy excerpt follows.

I think it an astonishingly accurate piece of journalism. Such efforts are often described as a first draft of history. Elon's first drafts were better than others' last.

The Israel-Arab Deadlock

By Amos Elon

Israel and World Politics

by Theodore Draper

Viking, 278 pp., $2.25 (paper)

The Road to Jerusalem

by Walter Laqueur

Macmillan, 350 pp., $6.95

Now that most of the fighting is over, and only sporadic raids and counterraids continue across the River Jordan, the origins of the third Arab-Israeli War are likely to be again obscured by events, as were those of the first (1948) and the second (1956). New blunders blot out old. Arab intransigence continues; the Israelis may yet discover that a great victory, as Nietzsche wrote, may be "for human nature…more difficult to bear than a defeat." The forces that caused the last war remain. They may soon be responsible for bringing about still another one.

Even last summer, soon after the war, the rapidity and seeming ease of Israel's victory overshadowed the pre-history of the war, its origins in the tactics of power, and the disastrous interplay between mass psychology and leadership. Now, a year later, the picture is further blurred by current preoccupations: the plight of the innocent refugees, acts of terrorism and sabotage, and their natural consequence of mass arrests and blown-up houses. United Nations Ambassador Gunnar Jarring, wandering from one Near Eastern capital to another, has spent the last six months trying in vain to square the circle. The Arabs say, "Withdrawal first, peace (maybe) later." The Israelis say, "Peace first, withdrawal (maybe) later."...

Most Israelis and many of their sympathizers abroad refuse to admit that two rights have clashed over Palestine. It is a persistent Zionist legend that the Arabs will eventually see the light in social and economic progress introduced by the Jews, and then gladly trade their nationalism for symphony orchestras, schools, and hospitals. While this may not be such a bad alternative to anybody's nationalism, it is highly unrealistic to expect it in the Near East, just as it would be in Europe.

On the other hand, there is not only the rivalry between Arab and Israeli, but rivalries between Arab and Arab (Syria still claims Palestine for her own province), Moslem and Non-Moslem Arabs, Russian and Chinese communists, and, of course, The United States and the Soviet Union.

Moreover, the old debate about the rightness or wrongness of Zionism still confounds all discussion. Should there be a Jewish State? Why should the Arabs atone for Nazi crimes? During the past decade this argument has become irrelevant and certainly impractical, and today it has become largely obsolete. Immigration to Israel has come to a standstill.

Two-and-one-half million Israelis are now a nation, cohesive and resourceful, whatever the argument over Zionism. For Israelis, the issue is not one of theory, but one of physical survival, of individuals as well as of a community. There is no other place to go, as there was for the French community in Algeria....

The talk of desirable solutions will continue, but at this juncture at least, none seems even remotely acceptable to both sides. It is possible to imagine a solution imposed from outside by mutual agreement of the great powers. But this too seems improbable.

The deadlock is likely to continue. We know nothing of the human heart if we imagine that Israelis will easily forget fifty years of near-total Arab enmity and twenty years of threats of annihilation; it is also native to believe that repression can make the Arab masses confident, or esteem Israel, or forget that Palestine was "stolen" by the Zionists.

For decades the Jews have tended to belittle the force of Arab nationalism, and have consoled themselves with the thought that the Arabs could live very well without the tiny piece of Arabia that is Palestine. The Arabs too have indulged for decades in the luxury of underestimating the enemy. They have ignored the fact that to preserve any sense of reality, there must be a sense of the relativity of enmity, as indeed of friendship as well.

There is some hope, albeit not much, in the increasing contact between Israelis and Jordanian Arabs on the occupied West Bank as well as with East Bank residents who are now being granted visitors' permits. If it is true that total enmity is possible only where there is complete lack of communication, the West Bank situation, if it lasts, holds some hope. One day both Arabs and Israelis may begin to doubt whether an enemy to whom one can talk is really an enemy at all.

If this hope too is just another pipe dream, the present deadlock is bound to continue. And both sides are condemned to inflict death, pain, and hardship on each other.

excerpted from The New York Review of Books, Vol. 11, No. 2, August 1, 1968

DOJ's RICO Win Against Tobacco

The Justice Department has won a big victory in the U.S. Court of Appeals for the D. C. Circuit. In U.S.A. v. Philip Morris et al. the court opinion upheld the 1,742 page opinion by District Judge Gladys Kessler finding the defendant tobacco companies liable under the federal Racketeer Influenced and Corrupt Organizations Act. (RICO) Some modifications were made regarding remedies.

The manufacturers and the Tobacco Council appealed from a judgment that they are "liable for conducting the affairs of their joint enterprise through a pattern of mail and wire fraud in a scheme to deceive American consumers." As Judge Jed Rakoff once remarked of Federal prosecutors mail fraud is "our Stradivarius". It was played well here but one would pick up a 1,742 page set of findings of fact about as slowly as one would a Stradivarius.

Fortunately there is an alternative. The findings have been extracted and aesthe他ically presented by Mike Freiberg, et al. It is a product of William Mitchell Law School's Tobacco Control Legal Consortium: The Verdict Is In: Findings from United States v. Philip Morris, The Hazards of Smoking (2006). It is available here from SSRN.

The headline is the conclusion:

4034. The foregoing Findings of Fact demonstrate that, over the course of approximately fifty years, different Defendants, at different times, took the following actions in order to maintain their public positions on smoking and disease-related issues, nicotine addiction, nicotine manipulation, and low tar cigarettes, in order to protect themselves from smoking and health related claims in litigation, and in order to avoid regulation which they viewed as harmful: they suppressed, concealed, and terminated scientific research; they destroyed documents including scientific reports and studies; and they repeatedly and intentionally improperly asserted the attorney-client and work product privileges over many thousands of documents (not just pages) to thwart disclosure to plaintiffs in smoking and health related litigation and to federal regulatory agencies, and to shield those documents from the harsh light of day.

Of particular note is that although the Justice Department attorneys attacked the role of tobacco defense attorneys (Shook Hardy, et al. prominent among them) (see decade-old reports here and here) the lawyers and law firms were not made defendants. Nor were ethics complaints ever filed against them. Statute of limitations presumably bar action at this point, leaving the story to historians' inquiry.

The decision upholding the findings should provide support for HR 1256 - a bill to bring tobacco marketing within the jurisdiction of the FDA, a Clinton Administration regulatory effort derailed by the Supreme Court in FDA v. Brown & Williamson (2000).

HR 1256 Family Smoking Prevention and Tobacco Control Act

Judge Aldisert - Golden Pen Award

Ruggero Aldisert is a master of legal writing. His Logic for Lawyers, his practical guide to brief writing, his classic work on judicial opinion writing have earned high praise. Of his Logic Justice William J. Brennan said:

"This is a book about legal reasoning or legal logic. While not challenging Justice Holmes' classic statement, 'The life of the law has not been logic; it has been experience,' it offers telling arguments that legal reasoning or legal logic may play an equal or even more significant role in the life of the law..."

The old master (he has had senior status on the U.S. Court of Appeals for the 3rdCircuit for 23 years) recently accepted the Golden Pen Award of the Legal Writing Institute, which is dedicated to improving just that. Judge Aldisert's remarks to legal writing profs are themselves a classic statement about the nature of legal writing:

"You teach what J.L. Austin described in his book, How to Do Things with Words, as “performative utterances.” This is because legal writing is more than describing something. It is designed to produce action, that is to say, to perform. The ultimate object of a lawyer who writes is to have his or her opponent concede or settle, or that failing, to have a court issue an order in his or her favor.

Thus, legal writing is not designed to describe something like a journalist, to report what is true or false. It is not what Austin describes as “to constate” or to give information on an action that has taken place. Instead it is designed to convince, to deter, or to persuade. And all this means is to perform, and thus produce future action.

When you are a judge, or are a law clerk writing for a judge,every document you write is a “performative utterance.” It is writing that concludes with a definite performance, such as “Motion denied” or “Judgment for plaintiff” or “Affirmed” or “Reversed.” Thus, when I say that as a judge I am indebted to you, it is because to the extent you produce lawyers with better writing skills, the better we judges can properly understand the nuances of arguments presented. And the higher degree of understanding we acquire, the higher a quality of fairness and justice ensues."

The current issue of the peer-reviewed Journal of the Legal Writing Institute features Aldisert's remarks and an essay by Mark DeForrest on introducing persuasive writing through Martin Luther King's Letter from a Birmingham Jail.

Let's Bail Out Legal Services - support for S. 718

The editorial board of the New Jersey Law Journal has lauded as a "step in the right direction" the Civil Access to Justice Act of 2009, S-718 , recently introduced by Sen. Tom Harkin. It would restore Legal Services Corporation funding to 1981 levels: $750 million in 2009 dollars.

The Board observed that "Legal Services was born in the War on Poverty as the Office of Economic Opportunity. It irked many with its early projects challenging Federal and especially state laws and practices that affect the poor, the disabled, military families, and others served by the program. Mobilization for Youth Legal Services (MFY) and California Rural Legal Assistance were emblems of the aggressive legal services litigation that engendered resistance."

Congressional opponents not only cut federal funding for Legal Services, the Board observed They also imposed "practice restrictions — barring class actions, and barring Legal Services-funded agencies from collecting counsel fees — even when fee-shifting statutes warranted an award."

"One of the first programs -Mobilization for Youth (MFY) in New York City - brought the landmark case Goldberg v. Kelly, 397 U.S. 254 (1970), in which the U.S. Supreme Court held that a state could not terminate "public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination." The concept of fair hearings is now commonplace, and millions of Americans continue to benefit from this decision.

Twenty years later, MFY prevailed in New York v. Sullivan, 906 F.2d 910 (2d Cir. 1990), a class action that successfully challenged procedures of the Social Security Administration for evaluating cardiovascular disabilities, the board noted.

Nine years ago MFY gave up federal funding to avoid practice restrictions that would have prevented it from again bringing New York v. Sullivan . Few local legal aid organizations have such an option. All are laboring under severe economic constraints, exacerbated as one of their primary sources of funding — interest on lawyers' trust accounts — has collapsed with the real estate and credit markets."

The Harkin measure, which has 15 senate co-sponsors has been referred the the Health EducationLabor andPensions Committee. For the text and current status of S 718 check out Open Congress here.

Although the omnibus appropriations bill signed by President Obama on March 11 gave Legal Services a $40 million increase, the programs remain hobbled by the collapse of the housing markets - and interest rates- an ironic result of the Fed's efforts to stabilize the financial system. Legal Services agencies have depended heavily on interest on lawyers' trust accounts. The courts collect the interest on lawyers trust accoount balances during the brief period between deposit and disbursement of routine transations like house closings.

To learn about the work of Legal Services go to the website of LSC - the national legal services corporation.

A sixth Catholic on the Supreme Court?

Sonia Sotomayor was raised Catholic and went to parochial grammar school and the diocesan Cardinal Spellman H.S. in the Bronx. Does that make her the 6th Catholic on the Supreme Court?

Justice Antonin Scalia, who went to Xavier H.S. in Manhattan (when they still wore military tunics), attends a Latin mass every Sunday. He may not be impressed with Sotomayor's Christmas and Easter cultural Catholic presentation.

Manya Brachear - the Chicago Tribune religion reporter - discussed it on her blog with Notre Dame lawprof Cathleen Kaveny:

A sixth Catholic with views like Sotomayor’s also would put the American church’s diversity on display.“My guess is she’s very much operating in accordance with the commitments of the Catholic social justice tradition which is emphasizing … inclusion, solidarity, justice to those least among us,” Kaveny said. “It’s a strand of American Catholic teaching that is somewhat distinct from other Catholic teaching but not incompatible. People emphasize different aspects.” “‘Different gifts from the same spirit’ to quote St. Paul,” Kaveny added.

Antonin Scalia asserts that as a textualist his Catholicism does not affect his judgecraft. Maybe. But his conception of what his faith and tradition require seems to be worn on his sleeve - particularly in his harsh attack on the majority opinion in the VMI case which compelled an end to single-sex education at the Virginia state military university. See Michael Frost’s Justice Scalia's Rhetoric of Dissent: A Greco-Roman Analysis of Scalia's Advocacy in the VMI Case, 91 Kentucky Law Journal 167 (2002)

Villanova law prof Robert Miller discussses and presents Scalia's 2007 Villanova address on the role of a Catholic judge at First Things blog.

For myself - Vatican II Catholicism affects my teaching and my lawyering: my adherence to the civil rights agenda, to John Courtney Murray's views on religious freedom, to the value of trade unions, opposition to the death penalty, and support of the peace movement agenda on nuclear arms.

Gonzalez: "I'm proud of my service"

Former Attorney General Alberto Gonzalez appeared today on CNN to comment on the nomination of Sonia Sotomayor as an Associate Justice of the Supreme Court.

The unfailingly polite Wolf Blitzer asked if he was afraid that Justice Department lawyers who wrote the torture memos would be subject to discipline.  Gonzalez responded that he was "afraid that lawyers who gave the best legal advice that they could during a dangerous time for our country" would be punished for it.

The issue rather will be whether they did a competent and diligent job.  Did they, for example, give independent advice.  That will be measured by whether in advising the United States they gave sufficient attention to contrary authority as to enable their client to make an informed decision on the matter of interrogation techniques.  That will include whether they exhibited a "decent respect for the opinions of mankind", as expressed in treaties to which we adhere.

Just Like Family - a keyhole view of the lives of nannies

“It wasn’t her thing to snoop,” said Ms. Blaine, of Claudia, a nanny poking around on the father's desk.... In the absence of any direct discussion of the schedule, Ms. Blaine explained, “she did it to figure it out.”

That describes the author, my step-daughter, as well. Intrigued by her own experience as a Fifth Avenue nanny, socializing with the others in Central Park, she wanted to figure it out: what it meant for the nannies who left their own children behind, for the families they joined - sort of- and the children for whom they cared.

The result is "Just Like Family: Inside the Life of Nannies, the Parents They Work for, and the Children They Love”, released this month. You will find an excerpt here.

Featured in today's Times, it is a keyhole view of the lives of three nannies. Tasha will be responding to reader' comments today online.

She will be reading excerpts on Wednesday, June 10 at 6 PM at The Corner Bookstore, 1313 Madison Avenue at 93rd Street.

image: Max Whittaker, NY Times