The concept of a constitutional right to counsel in certain civil cases is often referred to as “Civil Gideon,” after the Supreme Court decision that established the right to counsel in criminal cases, Gideon v. Wainwright. Critics charge that recognizing a civil version of the right established in Gideon will cause “waste” by increasing litigation. A recent Wall Street Journal law blog post quoted Ted Frank, for instance: “What is clear is that you will never have a simple eviction because every single one of them will be litigated. . . . The rest of the poor will be worse off because of that.”

I guess “waste” is in the eye of the beholder. As a student noted on another blog,

While I understand the drawback of added litigation, I’ve never found it to be particularly persuasive enough to override a law aimed at a greater level of fairness and justice. In most custody cases, an agreement is more likely reached when the party who can afford an attorney bullies the other party into signing something. As for eviction cases, I believe that at the end of a notice period, a landlord must file an eviction case with the court anyway to have the eviction legally recognized. Moreover, the American judicial system can be overwhelming, confusing and inevitably adversarial. While many civil parties successfully file suits pro se, I think it is fair to say that they often lack the knowledge and skills to successfully plead a case.

Indeed, it seems beyond dispute that pro se litigants are, on average, overwhelmingly disadvantaged by lack of representation.

For instance, the final report of the Access to Justice Committee of the Wisconsin State Bar in 2007 cited research establishing that unrepresented litigants were dramatically less successful in Equal Rights Division hearings on probable cause:

[T]he Equal Rights Division of the state Department of Workforce Development tracks outcomes in probable cause hearings and found that complainants with counsel are successful more than 42% of the time while complainants without are successful only 17% of the time. In a probable cause hearing, the ERD determines whether there is enough believable evidence of job discrimination to let the case move forward to a hearing on the merits. Judges in Rock County reported a similar disparity in outcomes in cases involving domestic abuse injunctions. Large numbers of abuse victims who are unrepresented give up before the case comes to a final hearing. Abuse victims who are represented regularly appear and most often prevail. Judge James Daley observed, “I doubt that this circumstance is the result of [a] chang[e of ] mind[] or that the abuse complained of in the petition stops.”

Likewise, statistics show that immigrants who are represented by counsel stand a greater chance of avoiding deportation, on average. Specifically, according to a report from Minnesota Advocates for Human Rights (reporting to the United Nations, on the United States’ compliance with its international obligations to protect civil and political rights), the Executive Office of Immigration Review’s own statistics for the years 2002 through 2006 demonstrate that

in cases involving represented, non-detained immigrants, 34 percent secured relief; but only 23 percent of unrepresented, non-detained immigrants received relief. Similarly, in cases involving represented detained immigrants, 24 percent secured relief as compared with only 15 percent of their unrepresented counterparts. More pronounced disparities appear in political asylum cases: 39 percent of represented, non-detained asylum seekers received political asylum compared with 14 percent of unrepresented, non-detained asylum seekers; 18 percent of represented, detained asylum seekers were granted asylum, compared to three percent of unrepresented detained asylum seekers. [footnotes and citations omitted, and emphasis added]

In other words, not only do represented immigrants have a better chance of avoiding deportation, that advantage is greatest in some of the most critical cases: aliens in detention and aliens seeking refuge from persecution.

Similar examples abound. The Brennan Center’s Civil Right to Justice web pages document, for instance, the “crisis in legal representation” arising out of the current foreclosure crisis. Wisconsin courts have seem a sharp uptick in foreclosure filings: last year was a record-setter for Wisconsin foreclosure actions, with more than 25,000 actions started, and this year (according to the Law School’s foreclosure mediation program web page) is on pace to pass that record.

Imagining our courts swamped with foreclosure actions suggests another potential benefit of civil Gideon: maybe access to counsel would improve not only fairness but also efficiency? Rather than promoting wasteful litigation, lawyers might help people present their claims more clearly and effectively. They might even convince some who lack a genuine defense to give up the legal fight. (In a similar vein, the National Coalition for a Civil Right to Counsel links to a number of different studies and reports tending to show economic and social benefits resulting from the provision of civil legal aid for the critical legal needs of those who can’t afford attorneys.)

Well, as so often seems to be the case, I have no tidy ending for this post. I just wanted to draw together in one spot various news items and blog posts that had recently caught my attention, at a moment when the question of fairness in critical legal proceedings seems to be on many minds. As always, I welcome your comments and criticisms.

The LWV proposal was always a nonstarter. It would have required recusal whenever a party or a lawyer in a case had made a contribution in excess of $1000.00 or engaged in a “mass communication” on behalf of a judicial candidate. A mass communication could have consisted of as few as 50 phone calls, letters or e-mails. That would have made it impossible to raise a meaningful sum of money in judicial campaigns in all but the smallest counties. It was a massive assault on public participation and it is proposals like this that have rendered groups like Common Cause, the LWV and the WCD largely irrelevant in making public policy.

A proposed amendment by former Justice William Bablitch was more reasonable. It would have required recusal for direct or indirect contributions amounting to $10,000or more(cash or in kind) by an attorney or party with a direct or indirect interest in the case.

I think this still goes too far – particularly in large counties and definitely for state wide races. Because it applies to “in kind” expenditures, I would think that it would require recusal for any significant GOTV effort or any significant communication of an endorsement by an advocacy organization. It would, again, make it extremely difficult for their to be significant public participation in judicial elections and would strongly tilt the playing field in favor of incumbents.

This is not to say that a $10,000 contribution or expenditure might not create a circumstance in which recusal is appropriate. It might – particularly in a circuit court race. But I don’t think it is fair to say that such a contribution would <em>always</em> create a potential for bias such that recusal should be warranted notwithstanding a judge’s subjective determination that she can decide the matter impartially.

But the largest problem, I think, is the suggestion that an “indirect interest” might create cause for recusal. While I would be reluctant to say that can never be so, I am concerned that – without further definition – it may be read to imply a broad duty to recuse based upon supporter’s ideological interest. Without getting into the details, this might be at odds with the what I believe to be the best application of first amendment jurisprudence to this area of the law, i.e., that the predispsotion to a particular legal position is not improper bias.

Justice Bablitch himself conceded that the term “indirect support” was problemantic and in need of further definition. But I think there is a problem with the endorsement of recusal standards that read more broadly than they can or should be applied. They permit unwarranted attacks on the legitimacy of the courts and the integrity of judges.

And that brings us to the rule changes that the Court did adopt. They most certainly do not amount to the Court “thumbing its nose” at the United States Supreme Court decision in Caperton. Although they might be improved, I think that the are properly read as perfectly consistent with that decision. They do not mean that contributions and independent expenditures can never create a potential for bias such that recusal is in order.

Rather, they make clear that recusal cannot be required “solely” due to lawful endorsements, contributions and independent expenditures. That seems right to me and saying so may have been necessary given some of the irresponsible calls for recusal made by groups like the WDC and OWN. The idea that Annette Ziegler ought to have recused herself because WMC filed an amicus brief in a case was wholly without merit and would have created an unworkable precedent.

I don’t think that the rule means that contributions and expenditures are to be ignored in assessing a question of recusal or that there cannot be circumstances in which they do create a potential for bias in which recusal is necessary. But the mere fact that contributions and expenditures have been made cannot, without more, require recusal.

Having said that, it’s not clear to me that the adopted rules could not be improved. They could be clarified to, for example, more clearly state what, at least in my view, they are intended to mean (e.g., making clear that they do not say lawful expenditures can never warrant recusal). They might be extended to offer more guidance. But they are, I think, better rules than the alternatives before the court.

Cross posted at Shark and Shepherd

Today, the “statisticization” of death has been reduced to a regulatory art form as part of analyses that agencies undertake to determine whether the cost of a regulation is justified by its benefits, including the number of lives it might save.  This procedure is championed by legal economists such as Cass Sunstein and Kip Viscusi, and the mathematics involved can be difficult to penetrate.  The density and abstraction of the calculations is probably for the better, because few of us could rationally and openly assign a numerical value to our own life or to the lives of our friends and family.  Viewing multiple lives in the statistical abstract, as Stalin may have done, perhaps seems to us less stomach-turning.  This concept is really nothing new: over two hundred years ago, Adam Smith theorized that sympathy was attenuated by distance.

I am not uncomfortable with cost-benefit analysis as a regulatory instrument, so long as it remains one tool in the regulator’s box and not a be-all, end-all directive that cannot be countermanded. 

I can envision some situations in which a regulator could reject or overrule its result.  For example, consider a scenario in which we could avert potentially catastrophic consequences of global warming if each nation on earth donated fifty percent of its GDP each year to a prevention fund; or, perhaps, if it accepted a fifty percent reduction in its citizens’ standard of living.  A strict cost-benefit analysis might sanction these measures; Richard Posner recently estimated the cost of the extinction of the human race due to global warming at about $600 trillion dollars.  But a national regulator would have no difficulty coming up with defensible reasons to reject them.  Sunstein himself recently seemed to admit that cost-benefit analysis has some limit when he wrote that “it does not tell regulators all that they need to know; but without it, they will know far too little.”

Despite my tenuous comfort with the use of cost-benefit analysis to put a price on lives, I am left to wonder whether reducing the value of life to a statistic carries a moral price of its own.  This week’s release of the movie “The Box” is apropos.  In this new Warner Brothers flick, a cash-strapped suburban couple receives a box from a mysterious stranger with the message that pushing a button in the box will have two effects: it will cause them to receive $1 million dollars, and it will cause someone to die somewhere in the world.  I don’t know how the movie ends, but the fact that these types of dilemmas still make good theater makes it clear that we as a society have not fully resolved our qualms over these matters.

Serious is fine.

Frantic is counter-productive.

I recently read a paper entitled The Future’s So Bright, I Gotta Wear Shades:  Law School Through the Lens of Hope. In this paper, law school professor Allison Martin and psychology professor Kevin Rand share results of their empirical study of first-semester law students’ levels of hope and optimism and how those levels correlate with law school grades and life satisfaction.  The professors differentiate between hope and optimism in this way:  “Hope is more strongly related to expectations for outcomes within a person’s control, whereas optimism is more strongly related to expectations outside of a person’s control.”  So I can hope that I will finish grading papers in a timely fashion.  I can only be optimistic about students submitting their papers on time.

Martin and Rand tested the following possible predictors for academic success:  LSAT scores, undergraduate GPAs, hope, and optimism.   They found that undergraduate GPA was the strongest predictor of first-semester law school GPA and that hope was the second strongest predictor of first-semester law school GPA.  Optimism and LSAT score were not significant predictors of first-semester law school GPA (though optimism was a strong predictor of life satisfaction for first-semester law students).

I’m predisposed to be skeptical of statistical analysis, and the authors note limitations in their study, but I think there are some good, practical insights in the article.  First, students who had measurably high levels of hope reported that they knew their grade was somewhat out of their control, but their performance on a test or paper was not.  They tackled writing and studying in methodical ways and often had a pattern or practice for studying.  Second, “high-hope students” did not set impossible goals like writing a whole paper the night before it was due or preparing an outline for a semester-long course a few hours before an exam. Third, “high hope students” did not worry much about how other students were studying.    In contrast, “low-hope students” saw their grade as well as their level of performance as out of their control.  They often focused more on earning specific grades than learning; they often did not have a plan for studying.

Things are getting more serious, but there’s still time for a plan.  Every student is different, and student plans should differ, but I’d like to offer a few suggestions.

*Set smaller goals working toward the larger goal.

*Get into a steady habit of studying.

*Remember that frustration is part of learning.

*Teach what you know to others in a study group composed of students you trust.

*Take care of yourself.  Sleep, eat well, exercise, laugh, commiserate, thank your loved ones for putting up with you.

And don’t lose hope.  I’m very optimistic that in a few years from now you will all be well-trained Marquette lawyers using your skills to help others.

(Editor’s note:  The image above was found on flickr, http://www.flickr.com/photos/kwerfeldein/1345598329/.)

]]> http://law.marquette.edu/facultyblog/2009/11/01/hope-and-optimism/feed/ 1 http://law.marquette.edu/facultyblog/2009/10/29/truth-and-reconciliation-stories-from-the-diaspora/ http://law.marquette.edu/facultyblog/2009/10/29/truth-and-reconciliation-stories-from-the-diaspora/#comments Thu, 29 Oct 2009 22:27:46 +0000 Jessica E. Slavin http://law.marquette.edu/facultyblog/?p=7694 Several months ago I blogged about the situation of Liberians who fled their country for the United States (but who did not receive official status as refugees) and who have lived here for years in a “temporary” status, while it remained unsafe to return to Liberia. As I explained in those posts, these US residents face yearly the prospect of deportation to Liberia, unless Congress acts to pass legislation allowing them to stay permanently.  Last year the crisis was once again temporarily resolved by President Obama’s one-year extension of protection. It’s unclear whether any permanent status for this group is on the horizon, as legislation on the issue seems to be, at this time, stalled in committee in both the Senate and theHouse, so I may be posting about this again next spring.

Anyway, if you followed those posts with any interest, or if you are generally interested in the experience of refugees, then you may want to review the recently-released report from The Advocates for Human Rights, entitled A House with Two Rooms: The Final Report of the Truth and Reconciliation Commission of Liberia Diaspora Project.  (Confession: as previously disclosed, I worked for the Advocates during and after law school, and I think it’s a terrific organization.)

A House with Two Rooms reports the findings of the Diaspora Project portion of the TRC’s work, which collected information about the experiences of the Liberian diaspora during the Liberian wars, during their flight from Liberia, and in the countries in which they resettled.  Amazon summarizes it this way:

From 1979 to 2003, more than 1.5 million Liberians were forced from their homes to escape civil conflict. Hundreds of thousands became refugees and many eventually made their way to countries of resettlement including the United States. Most of their stories have never been told. This report on the experience of the Liberian diaspora, entitled A House with Two Rooms, documents the experience of human rights abuses and violations of international humanitarian law that forced Liberians to leave the country. It is based on an analysis of more than 1600 statements, fact-finding interviews, and witness testimony at public hearings held in the U.S. The report also tells the story of the “triple trauma” experienced by members of the diaspora during their flight through Liberia and across international borders, while living in refugee camps in West Africa, and in resettlement in the U.S. and U.K.

I reviewed the Executive Summary and some of the interior chapters.  I am a little ashamed that I can’t stand to read much more of it right now, because it reminds me too much of what I heard from Liberian refugees during the period in the late 1990’s when I worked with refugees. The atrocities of the wars in Liberia were beyond what I ever imagined human beings could do to each other, until I heard it for myself. If you care to read a representative story, here is one from the Executive Summary, at pages 10-11.  (Or, just take my word for it that it’s terrible, and skip over the block quote.)

At the initial stages of the war, I moved to Ninth Street in Sinkor, Monrovia… The children were outside cleaning the yard. Suddenly they ran inside and said that they saw armed men coming. Moments later, Taylor’s men busted in. One of them said, “This is the dog I’m looking for.” He told us to come outside. Myself, my ten children, and my wife obeyed. The NPFL [commander] knew me…He had run against me in an election…before the war. He said to me, “You cheated me during the election, but now I am in power. I will teach you a lesson you will never forget.”

He told his NPFL boys to take my eldest daughter into the house. She was thirteen years old. They dragged her inside and dragged me in after her. [The commander] raped my daughter in front of me. My father (my daughter’s grandfather) was still in the house. He rushed at the NPFL men, trying to stop the rape. One of the men – I don’t know his name – shot and killed my [father] right there. [The commander] then brought me and my daughter back outside. He said, “I’m going to show you what I came here for.” He beat the children with the butt of his gun. He made two of my sons, who were seventeen and twenty, drink dirty water with the urine of one of the NPFL men in it. When the twenty year old refused, he shot him in the foot. [The commander] stabbed my other son, who was eighteen, in the elbow with his bayonet.

He then began to beat my wife. He told her to lay on her back and stare at the sun. [The commander] said, “You will eat your husband’s heart very soon.” He took the daughter who had been raped. [The commander] held her and said, “I want you to know how you all will die.” He ordered one of his men to cut off my daughter’s head. She was beheaded in front of our eyes. They dragged me over to lay beside her body. [The commander] said, “You will be the next one.”

Then I heard heavy shooting. ECOMOG was coming. The NPFL scattered. Before [the commander] left, he made a remark. He said, “Anywhere in Liberia I meet you or your family, I will kill you.”

I do not know how human beings like the man who lived through that experience go on with their lives, but thousands of them do, thousands of them right here in the United States.  When I was practicing refugee law and hearing these stories, I was focused on how to help each individual, and didn’t take much time to think of the larger picture of how the refugee and asylum law systems function (or do not).

Since I began teaching refugee law here at Marquette, I became more aware of the strange gulf (strange to me, anyway) between the fields of transitional justice, which, as I understand it, seeks to help societies that are in the process of recovering from or transforming after widespread human rights abuses, and refugee law, which seeks to provide refuge from those fleeing the abuses as they occur.

It is striking that, as far as I know, this Diaspora Project is the first time that a Truth and Reconciliation Commission has sought, methodically and purposefully, on such a large scale, to obtain information from the ones who fled the horrific violence and resettled elsewhere.

It seems to me that such interviewing of refugees should be a standard part of providing for their needs and giving them refuge.  And that it should be done at the time they are fleeing, not (or at least, not solely) years afterwards.  Not only because having their stories heard and believed is part of what they need, for healing, but because the evidence they could provide would be ammunition for investigating and, perhaps, stopping the human rights abuses as they occur, or even preventing them.

If you want to know more about the stories of the incredibly resilient, inspirational Liberian diaspora, a House with Two Rooms is available for purchase on Amazon or from the Advocates by mail.  It is also available for free download (in sections) on the Advocates’ website.

 “Hmm? Oh, yes please.  Did you see this story in the newspaper?  The Zombie Party has come out in favor of the President’s health reform plan.”

 “Isn’t that good?  I thought that you were in favor of health reform.”

 “I am, but I don’t trust these Zombies.  They are not rational.  You can’t talk to them.  Have you seen the television footage of those town hall meetings?  It’s just a sea of screaming faces.  The raw emotion of these Zombies is terrifying.”

 “So why is the Zombie Party supporting health care reform?”

“The story says that they will support the plan if the Democrats put the ‘death panel’ provisions back in.  It seems that Zombies favor ‘end of life planning,’ although for some reason their representatives in Congress keep referring to it as ‘planning for the end of life.’  I just don’t trust these Zombies.”

“Why not?  The President has said that he is open to including reform ideas from across the ideological spectrum.  This could be a good first step.”

“He’s your President, not mine.  The President is a Zombie himself.  He was full of promises during the campaign, but what has he accomplished since?”

“Well for one, his election inspired Zombies across the country.  This is the first time our country has elected a Zombie President, after all.  And he has had some great foreign policy successes.”

 “He ripped the arm off of the French Prime Minister!”

 “I know.  It’s about time we stood up to the French.”

 “I still say he’s not a legitimate President.  He’s undead.”

 “There you go again.  There is nothing in the Constitution that says that the President has to be alive.”

“Do you really believe that the Framers foresaw that a meteor containing a mutant virus would strike the United States and turn dead people into Zombies?”

 “I saw a professor on Fox News who said that John Jay was a closet Zombie.”

 “I warned you about watching that channel.”

 “I’m surprised you don’t like the President.  He supports immigration reform, doesn’t he?  You favor that.”

 “(sigh) You’re right.  I do like the fact that the President has called for a bill that would create more visas for unskilled workers from Mexico.  But I don’t understand why he said ‘especially the plump ones.’”

 “See.  We can agree on some things.  Let’s just say that everyone, even a Zombie, is entitled to a political opinion.  There is too much partisan fighting going on in our society.”

 “I can’t argue with that.  I certainly don’t want to fight with you.  Especially when I see the way you look at me.  I just melt.”

 “That’s because I could eat you up, I love you so.  Here.  Have another jelly donut.”

I could go on about Mike, but I’d rather disagree with him. In response to a question of the audience, he criticized the McCain-Feingold Act and other efforts to wring money out of politics.

I agree with that.

But Mike went on to say that he believes that the answer to concerns about undue influence is mandatory disclosure. We should all know who has given what to whom.

I used to believe that.

Now I’m not so sure.

The difficulty is in the politicization of what used to be nonpolitical. It is in the shrinkage of those spaces in which we could put our political differences aside.

Much has been written about efforts to publicize (and map the addresses) of supporters of Proposition 8 in California.  In our little part of the world, AALS engaged in a curious, ineffective and symbolic boycott of a hotel owned by a supporter of the Proposition.

This type of pressure is even placed upon lawyers engaged in pro bono representation. Locally,  an advocacy group bearing the ironic name of One Wisconsin tried to organize a phone campaign to pressure the employer of a young lawyer who was engaged in the pro bono representation of parties contending that the Wisconsin marriage amendment was constitutionally enacted.

And, I know, its not just the political left.  A Bush administration official suggested that corporate clients might want to drop law firms that had offered pro bono representations to Guantanomo detainees. Not cool.

Most of the time, the identity of a lawyer and her client will be public knowledge and nothing can – or should – be done about it.

But the willingness of partisans to engage in economic warfare against their opponents  suggests to me that disclosure of contributions is not am unmitigated good.

I appreciate that the frequently offended are exercising their first amendment rights. I appreciate that they think they are subjecting the politically active to the “test of the market place.”

They can do these things. I just think they shouldn’t.

The problem with making too much of life political is that it will inevitably result in escalation. If the left decides that the NFL must be pressured not to allow Rush Limbaugh as a team owner, then the right may feel compelled to agitate against Keith Olbermann’s participation in NBC’s Sunday night coverage.

And that will result in a substantial decrease in public participation. If people are going to boycott my place of business or otherwise seek to ostracize me because I have supported a particular candidate or cause (or represented an unpopular client), I may well decide that speaking out or acting as an advocate for something that I believe in or a client that needs representation is simply not worth it.

This will be particularly true for speakers who are in a business or profession that requires them to appeal to a broad spectrum of persons. Few businesses can decide to appeal only to conservative or liberal customers. The easiest course of action when someone complains about the political participation of its owners or employees is to shut up.

When you live in walking distance from the US-Mexico border, Newsweek points out, “the distinction between the U.S. and Mexico can get blurry—often children will pay visits on the weekend to family members who reside in Mexico and cross the border again Monday morning to go to class.”  Indeed, given recent rates of deportation, it is not at all unlikely that some children have (deported) parents living on one side of the border, while their citizen or permanent resident parents reside in Texas.

The trouble is that some of the students, allegedly, were crossing from Mexico every day to attend class in Texas.   And although public schools in the U.S. are forbidden by the Equal Protection Clause from denying education to children on the basis of their immigration status, schools do, of course, have the legitimate right to verify students’ residency in the district.  As the superintendent of the Del Rio district states, “It’s very simple. If you reside in the district, you can go to school. . . . . Texas has the same residency issues not just with children from Mexico but with children from Louisiana, New Mexico, Arkansas, and Oklahoma.” (An attorney for the Mexican-American Legal Defense Fund asks, ”Why isn’t the school district setting up a roadblock on the east side of town to see if students are coming from an adjacent school district?”)

I read about the controversy on a number of different websites, and you can probably imagine the character of many of the comments.  But one particular exchange played into a question that I have become a little obsessed about recently:  who is an “American”?  Is an “American” identified by legal citizenship?  By something more?  By something different from that altogether?

The exchange began when a young woman who had commented in favor of immigrants’ rights was explaining her family background and her plans for the future; she stated, in part, “I stick up for my people.”  That statement, which highlighted the writer’s sense, apparently, of belonging to a different “people” from the other commenters,  triggered this response:

Who are your people? My people are Americans, all colors, all races, all religions. If Americans are not your people you should be living, working and educating yourself in your own country with your own people.

“Who are your people?”  That question has been on my mind all semester, for a number of different reasons.

First, I wrote a short summary of the Padilla v. Kentucky case for the ABA Supreme Court Preview publication.  In that case, which was argued last week, the United States seeks to deport Jose Padilla, a Vietnam veteran who has lived in the US for more than forty years but who never sought citizenship.  Padilla’s immigration troubles began because, while working as a truck driver, he was caught moving a large amount of marijuana in his truck.  He eventually pled guilty to a drug trafficking charge that counts as an “aggravated felony,” meaning that his Lawful Permanent Resident status would be revoked after his sentence ended, and he would be deported.

Mr. Padilla’s defense to deportation is that he received ineffective assistance of counsel.  He says that during plea negotiations, he specifically asked his attorney whether there would be any immigration consequences to the guilty plea, and his attorney advised him that there would not “since he had been in the country so long.”

On appeal, the United States has abandoned its former position, and now agrees with Padilla that affirmative misadvice about immigration consequences must be ineffective assistance.  The fight in the case is reduced to whether that terrible legal advice prejudiced Padilla’s case, as well as the politically more interesting issue of whether simple failure to provide any advice at all, i.e., non-advice, regarding the immigration consequences of a immigrant’s criminal conviction also constitutes ineffective assistance. It seems likely that Mr. Padilla will win his argument that he received ineffective assistance, provided he can prove that his attorney misadvised him so terribly.  But it remains unclear whether he will avoid deportation.

Which is what leads me to the question.  Isn’t a man who lived here in our country for more than 40 years, who was a lawful permanent resident, who fought in Vietnam on our country’s behalf, who has a wife and children here, one of “our people”?  By what measure is such a man not as American as I am?

We can call what we are doing to Mr. Padilla, “deportation,”*  but it is something different.  We should invent a new word.

The scope of this issue came into even clearer focus for me, when, with a group of law students, I participated in a “know your rights” presentation and initial screening of some detained immigrants on behalf of a nonprofit that works with immigrants.  Before that experience, I knew that there had been an increase in deportation of “criminal aliens” due to the 1996 changes in our immigration laws, as well as later amendments.  It is one thing, however, to know that, and a very different thing to sit across a table and talk with some of the human beings being deported under these laws.

I talked with one man who has lived in the US since he was seven years old, and who seemed to have little to no chance of avoiding deportation.  Another interviewer met one who arrived when he was two. The combination of the expansion of the “aggravated felony” definition (which now encompasses almost all felonies and even some misdemeanors)  and the elimination of most forms of relief from deportation for such individuals means that many lawful permanent residents with criminal convictions are being deported from the United States to places where they have not lived in a long time.  In fact, there must be thousands of people like Mr. Padilla.

I guess you can say that Mr. Padilla, or the man who lived here since he was 7, or the one who came when he was 2, is not an American because he is not a citizen.  But saying so doesn’t make it true.  If Mr. Padilla can be deported for drug trafficking, why isn’t it justifiable to revoke the citizenship of anyone convicted of drug trafficking?  What is the legitimate difference?  What does “deportation” even mean when applied to someone like Mr. Padilla?

A third experience happened the same day and made the situation seem even more bizarre.  One of the immigrants with whom I spoke claimed, rather credibly, to be a US citizen caught up in a terrible mistaken identity problem.   Did you know that in the most recent wave of deportations, the US has deported quite a few citizens, mistakenly?  If you want to read about how something like that can happen, there is an interesting blog post on it here.  The short answer is that it is correlated with the increased use of expedited procedures.

Someone definitely should invent a new word for deportation of citizens.

Writing about Mr. Padilla, and meeting with detained immigrants, and reading the “Who are your people?” comment also led me to reflect on my recent interactions with law students and professors from other parts of the world.  In September I attended the  International Association of Law Schools Conference on Constitutional Law, at American University Washington College of Law.  Law professors from every part of the globe participated in the conference.  At my small-group sessions, and in breaks and social times, I discussed comparative constitutional law with professors from Australia, China, Costa Rica, India, Ireland, Italy, Malaysia, Mexico, the Philippines, South Africa, Zimbabwe, and many more places, too many to name.  I had just finished the Padilla write up at that time, and couldn’t stop talking about it.  It was often difficult to explain, though, to professors from other countries, because they didn’t understand why the government would provide counsel for indigent defendants in criminal proceedings but not for the same aliens in their related deportation proceedings.

That point came up again in my interaction with the Hurtado students who recently visited our law school.  During a conversation with one student, I was once again talking about Padilla (as I said, I can’t shut up about the case), explaining that there is no right to free counsel in the immigration proceedings because deportation is not a “punishment.”  The student gave me a very strange look, and interrupted to ask how it can be said that deportation is not a “punishment” when it is triggered by commission of a crime.  It is a good question.

My personal interactions at the IALS conference and with the Chilean students also left me with a more positive feeling with regard to “who are my people.”  A recognition that people who don’t share my location or my local circumstances or my nationality, but who do share important values, interests, and a way of thinking about the world are also “my people.”

In the end, maybe Peter Spiro’s recent essay  in the ABA’s Spring 2009 Focus on Law Studies publication, “Whither Citizenship,” is right.  He discusses how globalization is “blur[ring] the boundaries that once more distinctly separated the ‘us’ from the ‘them,’” arguing that “[t]he primacy of the state is on its way to obsolescence,” and along with it, the concept of citizenship as it is currently understood, as a relation between individuals and the nation states of which they are citizens. He asserts that this process has begun and is inevitable, and that all people “who value robust liberalism should start training their sights on other institutions, public and private. The challenge, a formidable one, will be to apply the virtues of citizenship in the state in these other arenas.”  I hope that our people are up to the challenge.

I guess I will stop here, as I don’t have any satisfying way to end this discussion.  I will leave you with a picture of some of my people,  schoolkids walking in Del Rio, Texas in September.  (The caption pointed out that it’s not known whether these particular children are Del Rio residents, or not.)

“It is a severe rebuke upon us that God makes us so many allowances and we make so few to our neighbors…” – William Penn 1682

*For the immigration lawyers and professors, I am aware that the equivalent to “deportation” under current law is “removal.”  But I’ve noticed that most people in the news and the blogosphere continue to use the familiar word, “deportation,” so I am doing the same here.

Professor Alison Julien took the lead in organizing this conference, and several participants (including Mark Wojcik at the Legal Writing Prof Blog) remarked upon how well the event was organized and run.  The biggest testament to its success, I think, is that conference participants have encouraged Marquette to serve as the host school again.

The conference featured a diverse range of interesting topics, and though I was unable to attend every session, the six I attended are representative:  Collaboration in Teaching and Scholarship; Update on Interdisciplinary Skills Scholarship (presented by our visiting Boden Professor of Legal Writing, Michael Smith); The Six Things You Can Do in a Contract; Assigning Clients in Persuasive Writing Assignments; Using Literature to Teach Theme Development in Persuasive Writing, and How to Identify and Counter Logical Fallacies (presented by Prof. Melissa Greipp).  The sessions were informative and thought-provoking, and I left the conference thinking of ways I can improve my teaching and engage in scholarship.

Many thanks to everyone who made the event a success, including, especially, Dean Kearney, Prof. Julien, Sharon Hill, Beverly Franklin, Carol Dufek, and many student volunteers.

Professor Blinka started the lunch discussion with Arizona v. Gant, a 5-to-4 decision written by Justice Stevens and joined by Justices Scalia, Souter, Thomas, and Ginsburg (an odd confederation to say the least).  In Gant, the Court limited the scope of “search incident to arrest.”  The Court held that while police can conduct a warrantless vehicle search “incident to an arrest,” police can only search without a warrant and without consent if the arrestee is within reaching distance of the vehicle or if the officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.” Arizona v. Gant 556 U. S. ____, 2 (2009).

After the discussion of the case, Professor Blinka suggested that one ramification of Gant is that law enforcement will likely put more emphasis on gaining consent to search vehicles, since arrest will no longer yield such access. Professor Blinka also left the lunch group with one question: why did the Court decide that it was appropriate to narrow the “search incident to arrest” rule in 2009, especially since the broader search rule had been in effect for nearly thirty years?

Professor McChrystal addressed the Court’s decision in Safford Unified School District v. Redding, 557 U.S. ___ (2009), another Fourth Amendment case. Unlike Gant, which was based on a police search, this case addressed the ability of public school administrators to strip search a minor student for contraband. In reaching their decision that the school administrator’s strip-search violated the student’s Fourth Amendment protection, the eight-member majority found that the intrusive nature of the search did not adequately correspond with a “substantial chance” of finding contraband in her underwear.

The 8-to-1 decision in Redding left Justice Thomas alone in dissent. In his dissenting opinion, Justice Thomas argued that the doctrine of in loco parentis (literally meaning “in place of the parent,” allows a third party to act with same authority that a parent would have) should be applied to allow school administrators to search a student’s person without any Fourth Amendment concerns whatsoever. Under this approach, not only would a strip search be constitutional, but so would a more drastic search of a student’s body cavities.

In Professor McChrystal’s closing remarks, he cautioned future practitioners about a broader issue of privacy— that in an age of Google searches, clients might want to limit their names from public record.  A Google search for the plaintiff in Redding results in nearly four million hits. And while Ms. Redding’s ordeal at school occurred six years ago this month, her name will always be attached to the school’s invasion of her privacy. However, had her lawyer petitioned the court for a pseudonym for the minor plaintiff, something that most courts would be likely to grant under the circumstances, she might have maintained more of the privacy that she fought so hard to protect.

The last case, Crawford v. Metropolitan Government of Nashville, discussed by Professor Secunda, reviewed the anti-retaliation provision of Title VII. This provision protects employees suffering from adverse employment actions (such as a demotion, change in pay, or termination) when the employee “participates” or “opposes” an unlawful employment practice. At the heart of the matter in Crawford was what type of employee conduct constitutes “opposition” to an unlawful employment practice. The Court, reversing the Sixth Circuit Court of Appeals, held that reporting sexual harassment was not needed for protection under the “opposition” prong of the anti-retaliation provision. Furthermore, applying an ordinary definition of “opposition” the Court held that the “opposition” prong of Title VII protected an employee’s cooperation with an internal investigation of sexual harassment when an employee gave a “disapproving account” of a supervisor’s conduct.

Professor Secunda noted that while the unanimous decision is good for employees that seek retaliation protection, the Court may have better helped such workers by addressing employee protection under the more frequently used “participation” clause.

MU-ACS sincerely appreciates the faculty members and students who gave their time for the event. All students are welcome to join MU-ACS events.

Hamdan v. Rumsfeld

Swift’s presentation promises to be compelling in at least two respects.  The first is that Swift will provide a first-hand account of the legal issues surrounding the war on terror via the story of his advocacy for recognition of the rights of Guantanamo detainees.  The second concerns the personal cost to Swift of his representation.  According to media accounts, Swift understood that the expectation was that he would simply assist Hamdan in entering a guilty plea.  But, Swift explained to the Seattle Post-Intelligencer,  “I didn’t volunteer for this. I got nominated for it. When I got it, I just decided to do the best I could.”  That resulted in a trip to the Supreme Court, in Swift being denied a promotion, and in turn to the end of his military career.  As Swift explained to a Bloomberg reporter, “If you start thinking about your career over your duty, it’s time to get out.”

For more information, and to reserve your spot, go here.

In the afternoon, the students visited the Milwaukee Courthouse, and received a tour by Felony Court Coordinator Mary Jo Swider, including a stop to observe the intake court in action. Commissioner Julia E. Vosper came out to greet the group and give them a brief explanation of this first steps in the criminal justice process:  verifying the probable cause basis for the arrest, setting bail and scheduling a trial date. The students were stunned when one man was escorted into the courtroom handcuffed and wearing the orange prison garb. This condition did not seem to correspond to his crime for driving without a license.

Court Interpreter Coordinator Jackie Thachenkary then brought the Hurtado students to observe a felony trial, in which the defense attorney argued a motion to suppress the “fruits of the poisonous tree” based on the argument that the Spanish speaking defendant did not grasp the significance of the Miranda warning—which the arresting officer had recited quickly in English. After a very impassioned argument, Public Defender Alex Lockwood came out to greet the students during a break. He explained that this case was a particularly complex and challenging one given not only the language issues but also the mental competency of the defendant, who has been charged with homicide. The students were impressed with the patience of Judge Daniel L. Konkol, who had to ask the defendant numerous times if he wanted to testify and waive his constitutional right to remain silent.

Later, the students then visited a civil trial to get a view of a jury, which their own system does not use. The delegation’s visit to the intake, criminal trial, and civil trial courts at the Milwaukee County Courthouse served as a nice complement to the academic component offered earlier by MULS criminal law professors.

Today Dean Kearney hosted a welcome reception for our guests in Eisenberg Hall in which he recognized the significance of this academic exchange.  In particular, he noted an unique opportunity to contribute to Chile’s ongoing criminal justice reforms designed to replace an inquisitorial criminal justice system inherited from Spanish civil law with an adversarial one more like that found in the United States.  Such an undertaking is, in the words of Hurtado’s Dean for International Relations Rafael Blanco and his colleagues, “a complete paradigm shift and can be understood as almost revolutionary.” (Rafael Blano, Richard Hutt, Hugo Rojas, The Reform to the Criminal Justice in Chile: Evaluation and Challenges, The Loyola University Chicago International Law Review )(2005)

In fact, the faculty of HULS are credited for taking a leading role in spearheading this judicial reform following the end of the dictatorship of General Augusto Pinochet in 1990 as part of Chile’s “transition to democracy”, but which took up special momentum after 2000.  At that time, the government promulgated a new code of criminal justice that began as a pilot program in selected cities, and is being gradually implemented throughout the country.   Since then, these legal reforms have become a model for all of Latin America.

Dean Kearney also recognized that HULS and MULS share the same educational mission and identity grounded in a long Jesuit tradition that recognizes lawyering as a ‘helping profession.’     At the same time, as legal professionals, we understand that social justice is grounded in a solid respect for the rule of law.  Certainly, Hurtado University Law School’s founder Saint Alberto Hurtado Cruchaga embodied this spirit through his work as a Chilean Jesuit priest, lawyer, and social worker.  His important work led to his being was canonized on October 23, 2005 by Pope Benedict XVI, becoming his country’s second saint.

Today kicked off the week-long program with an orientation led by our MULS students Juan Amado and Sara Grill, who helped translate presentations by: Professor Tom Hammer on MULS’ Internship program; Editor and Chief Marvin Bynum on Marquette Law Review and Associate Justice of Administration, Rachel Helmers on Moot Court; and finally, Assistant Dean for Public Service Daniel Idzikowski and Lori Zahorodny on the pro bono legal clinics and the public service office.  In the afternoon, they received a tour of our law library by librarian Julia Jaet followed by a talk on legal research by Reference Librarian, Elana Olson, all interpreted with the help of Yolanda Toral-Zeider.   They also listened to lectures by Professor Ed Fallone on Constitutional and Immigration Law and Professor Scott Idleman on Federal Indian Law.

The rest of the week will be equally packed with informative lectures by faculty and alumni, as well as a meeting with Wisconsin Supreme Court Chief Justice Shirley Abrahamson and a trip to the Milwaukee County Courthouse to observe a trial. The students will learn about Marquette Law School’s Restorative Justice Initiative, led by Distinguished Professor of Law Janine Geske, and its “Safe Streets” project to reduce gang and drug crime in Milwaukee neighborhoods. They will also hear from Professor Andrea Schneider, leader of Marquette Law School’s nationally ranked Alternative Dispute Resolution program, which trains legal practitioners in the art of resolving disputes outside of legal adjudication. In addition, the students will meet with lawyers from non-profit organizations working with the Milwaukee’s Hispanic community, including Centro Legal, Catholic Charities and Voces de la Frontera.

Due to the generosity of our faculty, students, alumni as well as members of the MU and Milwaukee community, we will be able to offer the Hurtado delegation an exceptional week of activities.

As I read the text of President Obama’s speech, I find it hard to discern “socialist ideology” or even “paid political advertising.”  (Let us remember that pretty much everyone to whom his remarks are addressed is unable to vote!)  His remarks seem more “Republican” than not.  The themes of personal responsibility and hard work pervade the speech.  He says, “But at the end of the day, we can have the most dedicated teachers, the most supportive parents, and the best schools in the world – and none of it will matter unless all of you fulfill your responsibilities”? He exhorts students to avoid making excuses about their role in their education.  “[T]he circumstances of your life – what you look like, where you come from, how much money you have, what you’ve got going on at home – that’s no excuse for neglecting your homework or having a bad attitude. . . . That’s no excuse for not trying.” And he reminds students that success is hard work and that they should learn from their failures.  “[Y]ou can’t let your failures define you – you have to let them teach you.”

How could any parent find fault in such advice?  Is it simply because the messenger is from a different political party or is it something else entirely?  Barack Obama is the president of the United States.  A demanding job, to be sure, but also a job that is heavy with symbolism.  There shouldn’t be anything inherently political in the simple fact that the county’s figurehead wishes to press upon the country’s future – its school children – that they ought to do their best in school and work hard.

In theory, this may be true, and perhaps large clients (as in those who spend enormous sums of money with their law firms on an annual basis) have put some of this theory into practice.  But I’m not so convinced that the billable hour has earned its demise quite yet.  For one thing I work as in house counsel at a Fortune 1000 company and I see very few alternative billing arrangements.  (For another, I used to work at a big law firm that also saw few alternative billing arrangements.)  That is due in part to our own taste for risk.  After all, alternative billing arrangements must incentivize both parties, meaning the client may end up paying more for a given set of services than it otherwise would have under a billable hour system.

For instance, if I hire an outside lawyer to handle a litigation for my company and the lawyer agrees to take the engagement on a flat-fee basis, both my lawyer and I take on risk.  She bears the risk of cost-overruns (i.e. performing the work less efficiently than she anticipated).  I bear the risk that the litigation will turn out in such a way that it would have been cheaper for me to pay by the hour (e.g. a good settlement opportunity arises early in the case).  It is the latter risk that causes some clients to balk at the idea of alternative billing in some cases.

I may be overstating the case a bit.  I’m not personally afraid of the risk that my lawyer will work more efficiently and, as a result, make more profit.  In fact, I’m glad to see it because we’ve aligned our incentives–I get my lawyers behaving how I want them to behave (staffing cases leanly, working efficiently, focusing on lawyering and letting non-lawyers perform non-lawyer tasks), and my lawyers get to earn more money and act more like lawyers, instead of churning out billable hours on menial tasks that don’t require a law degree, or perhaps even a college degree.  But I know other in-house lawyers who are afraid of the risk that the current iterations of alternative billing arrangements just misalign incentives in other ways and create the risk that they’ll pay more than they would have under a billable-hour system.

The problem is viewing the lawyer-client relationship (or any relationship for that matter, if you’ll briefly indulge my pontification) as a zero-sum game.  It is not about making sure that the client wins and the lawyer suffers; although after years on end of the billable hour system, I assure you that is how some clients feel.

Instead, alternative billing arrangements will work when lawyer and client understand that both must benefit from the arrangement.  Clients can cap their exposure and create predictability for their business people, which is all most clients are after, and lawyers can stop writing down what they’re doing every minute of the day, focus on turning over the right stones instead of all the stones, and earn a good living doing it, while also sharing the risk with the client that lawsuits and legal transactions don’t always go as planned.

Until clients and lawyers figure out how to align their incentives–not an easy task–and accept that their financial relationship is not a zero-sum game, the billable hour is not going away.

Don’t get me wrong.  I’m not saying I don’t want the billable hour to go away, both for my lawyers’ sake and my own.  But I don’t believe it will anytime soon.  Inertia is a powerful force, and, as Donald Rumsfeld might say, unknown unknowns are more frightening than known unknowns.

The national debate triggered by Vick’s arrest and conviction revealed that most middle and upper class Americans viewed dog-fighting as barbaric and properly criminal.  On the other hand, it also made many aware for the first time that there were racial, socio-economic, and regional dimensions to the debate.  While few openly called for the repeal of all dog-fighting laws, it became clear that many African-Americans and rural whites, particularly Southerners and those with lower incomes, did not view dog fighting as a particularly serious offense.  Many in these groups still find it a fascinating and exhilarating spectator sport, and, consequently, view the laws against it as trivial and unfair.  From their perspective the issue was not so much one of animal rights but the ability of the majority to impose their cultural views on a relatively powerless minority.

Although dog-fighting has been illegal in every state for some time now—Vick’s home state of Virginia outlawed “commercialized” dog-fighting and betting on dog-fights at the end of the 19^th century—the sport once had a long and surprisingly upper class pedigree.  Queen Elizabeth I was a great fan of dog-fighting and prevented Parliament from outlawing the sport during her reign.  Dog-fighting, along with bear baiting, cock fighting, gander pulling, and other blood sports were quite popular in colonial Virginia and helped to unite individuals of different races and economic classes, including slaves and their masters.

Even after dog-fighting was outlawed, at least in the South there was a long tradition of law enforcement officials looking the other way, or sometimes joining in the activity.  (In that regard, it was like “moonshining.”) To this day, the kindred sport of cock fighting remains legal in Virginia (so long as it is done solely for the enjoyment of the spectators and no money changes hands), and a recent effort to abolish it in the Old Dominion failed, in part because the state’s farmers are among the nation’s leading breeders of fighting roosters.  More over, hunting, fishing, and horse racing continue to be perfectly legal although it is hard to believe that the animals involved derive much pleasure from the sport.

I spent a good part of the summer in my hometown of Pearisburg, Virginia (pop. 2200).  While I was there, the topic of conversation frequently turned to Michael Vick.  Although the town has a black town councilman which it elected in at large voting, it is predominantly white and very conservative.  Almost without exception, however, everyone seemed to view seemed to feel that Vick had gotten an extremely raw deal.

While it is true that the town is overwhelming populated by fans of Virginia Tech (Vick’s alma mater), I don’t think that that was the reason for their views.  (They would have felt the same, I think, even if he had played for UVa or West Virginia University.) For what they viewed as at best a minor infraction against an animal, Vick was punished as though he had committed a serious offense against another human being.

I am sure that nothing would please Michael Vick more than for the public to completely forget about his dog-fighting experiences.  However, as the focus of civil rights disputes increasingly shifts from issues of race to issues of culture, Vick may be a symbol of resistance for those who embrace rural, lower class Southern values instead of those of the middle-class majority.

Depending on where you look, you can find members of the legal community making different predictions of where the courts will land on Iqbal.  Some are dismissing the significance of the case, and others are declaring it a major obstacle for plaintiffs and a coup for corporate defense.

The federal courts have begun the task of interpreting Iqbal.  For instance, a 12(b)(6) motion to dismiss based on the Iqbal standard was successful in a lawsuit claiming that a school’s music program violated free exercise and establishment clause by choosing songs that were religious in nature for students to perform.  And, Judge Posner recently wrote an opinion that distinguished the case at hand from Iqbal and suggested that didn’t govern, even though it has been believed to apply to all federal civil cases.

It appears Congress is ready to jump into the fray as well.  Senator Arlen Specter introduced the Notice Pleading Restoration Act of 2009 in late July, which, in its current state, would reinstate the Conley standard.  While at first glance, the proposed legislation does not seem to present a separation of powers problem, it remains to be seen whether or not this bill has legs enough to make it out of committee.

Even if we do not end up with a pleading standard radically different from that established in Conley, we should get used to hearing the name “Iqbal” as part of our common legal vocabulary for a while.  In the first two months after the Iqbal decision was handed down, the case was cited 500 times in federal courts.  It seems a FRCP 12(b)(6) motion to dismiss for “failure to state a claim upon which relief will be granted” citing Iqbal will be on the checklist for the defense counsel of every federal civil case from here on out.

While this appears to be the first post on Marquette Law School’s Faculty Blog discussing the implications of Iqbal and the pleading standard, it is the topic of a healthy discussion in the legal community right now.  My interest in Ashcroft v. Iqbal grew out of my final paper assignment for my Law and Rhetoric course in the first summer session and it has been fun to watch the analysis and law begin to develop over the past few weeks.  I’ve simplified the case and issues for the sake of presenting in the blog format, but welcome any comments or discussion in the forum below or offline by email  if folks are interested.

Then it dawned on me that the challenge of work-life balance is probably one of the few things all the readers of this blog have in common.  Full-time students have different pressures than part-time students, litigators face different challenges than estate planning attorneys, who are all under different professional pressures than Law School faculty or administrators.  However, we all know what it is like be put in a position to prioritize between professional and family or personal obligations.

Additionally, the birth of my son, Callan, in June brought new weight to the “life” side of the balancing act and makes the topic of work-life-school balance particularly timely and relevant for me.  I’ve always known time to be precious, but the stakes are indeed higher with a child in the house.  Perhaps it is my Catholic guilt, but the weeknights in the classroom or on the road for work, and the all-weekend study sessions now feel a bit like time I’ve stolen from my family.

I don’t have any advice in this regard, just the observation that achieving true balance does not seem realistic for someone in this position, particularly on a daily or even weekly basis.  That is not to say a law student with a family can’t have a productive career, do well in school, and have a happy home life.  Rather, I just suggest the term “balance” doesn’t seem to accurately capture my reality in managing these dynamic priorities.

I tend to agree with current Yahoo! CEO Carol Bartz, who acknowledges the impossibility of true work-life balance in her life.  Ms. Bartz instead focuses on keeping all the balls—representing the main areas of responsibilities in her life—in the air.  The thought conjures an image of a creative and agile juggler, not a symmetrical and faultless gymnast on a beam.

“I have a belief that life isn’t about balance, because balance is perfection,” Bartz says.  ”Rather, it’s about catching the ball before it hits the floor.”  I don’t think Ms. Bartz suggests completely neglecting certain parts of her life until crisis occurs.  Rather, she seems to simply acknowledge that most people can only do one thing really well at any given time.  And, as painful as it may be, putting work or school before family, at least occasionally, is a necessary compromise for someone in my shoes.  Conversely, I acknowledge that I’ll most likely forgo certain professional or academic opportunities for the sake of maintaining harmony on the home front.

My life is in a constant state of imbalance.  I suspect this is the same for many of us.  On any given day, I can be a great husband/father, employee or law student, but rarely all of the above.  I can work with this reality.  I’m getting the hang of it.  I guess I’ll just worry about what I can accomplish today, and keep my eye on the ball that’s closest to the ground.

There is always a need for caution in the treatment of papal encyclicals. They are written to hold up values, more than solutions and are often written at a level of generality that leaves much unresolved. As John Paul II wrote, “the Church proposes; she imposes nothing.” The second is that — although we can’t help but read them with American eyes — they are not written only for us.

Still, I think an American reader should be struck by two insights — neither particularly new — “proposed” by Caritas.

I believe that Catholic Social Teaching – for all of its emphasis on the “signs of the time” — often does not adequately account for economic reality. This is related to a paper that I am presenting at St. Thomas in November, so I’ll probably bloviate on that in the coming weeks.

But at the same time, there is no way that a faithful conservative Catholic could not come away from Caritas without a sense that his or her presuppositions on economic matters have been challenged. Again, this is not new (although Caritasfeels less market friendly than, say, John Paul II’s Centesimus Annus).  While recognition of the right to own property and the value of markets and ”for profit” entities is robust in CST, it is always qualified by the notion of the universal destination of goods and the idea of ownership as stewardship and not exploitation.

But, at the same time, there is no way that a faithful liberal Catholic could not come away from Caritas without a sense that his or her presuppositions about social issues have been challenged. In particular, there is a sharp break between the notion that social issues are “distractions” that create a kind of false consciousness that causes the poor and middle class to ignore their “true” (i.e., economic issues).

There is a robust anthropology in CST that makes claims about what is and is not part of the good life and an asserted connection between that anthropology and economic life. In other words, the “seamless web” often said to connect a series of “life” issues also connects assertions about the nature of human beings and the family to considerations of economic justice. 

There are, of course, rich implications for the law. Should the idea of stewardship in the control of private property be better reflected in law and public policy? Or would that violate notions of subsidiarity? To what extent ought law and policy be framed to encourage – if not require – certain ideas about who the human person is and how she ought to live?

Milwaukee Journal Sentinel columnist Eugene Kane “wonders” what it means if you “ask” about African Americans pronouncing the word as “ax.” He is for proper pronunciation but scolds about not singling out particular ethnic groups for incorrect usage and pronunciation, noting that nobody cares about midwesterners who love “da Bears.” That is probably a poor example. It is quite common to make fun of that particular pronunciation. Especially north of the 42/30.

But I have a different point.

Mostly, I want to plug a fascinating book about linguistics for a general audience (that would be me) by Seth Lerer called Inventing English.

A lot of improper usage and pronunciation (and I don’t hesitate to call it improper)have roots in what once was considered to be, as Kane puts it, “the Kings English.”

It turns out that “ax” (or, perhaps more precisely “acs“) may be one of them. In fact, it appears that the King’s English was exactly what it was. It seems that our verb “ask” replaced the Old English “acsian“through deliberate (as opposed to accidental)metathesis, i.e., twisting the order of sounds. (An accidental example would be saying pasghetti instead of spaghetti.) Sometimes these old vestiges of the language hang on as variations and variations are often regional, spreading by, as it were, word of mouth. It’s not that modern speakers can’t keep their Olde English straight from the modern version. They haven’t the slightest idea why they grew up with an outmoded form.

These pronunciations (or even grammatical forms such as a phrase like “she be sick” which has roots, Lerer argues, in certain creole dialects)are “wrong.” But they stem from what used to be right. Hanging on to “ax” instead of “ask” has been popular in the American south and, for that reason, among African Americans (and, as Kane says,  a tad condescendingly, among “corn-fed” whites). To use another example, look at my post at Shark and SDhepherd ringing in Irish Fest and listen to the Cranberries’ Delores O’Riordan sing about how she liked it when she was “out dere.” Gaelic has no “th” sound and Irish speakers of English often choose not to pronounce it – or at least not very clearly. It’s not that they can’t or even that they don’t know that they should. It isn’t that Gaelic sticks to “simple” sounds (it has more individual sounds than English). It’s that this is what was heard around the kitchen table.

The politically correct – and boring – response to this is to argue that all usages are equally valid. In some sense, they may be (although sometimes these changes served a linguistic purpose) but language doesn’t exist in a vacuum. We don’t speak Olde English anymore and English is not Gaelic.

Sometimes these pronunciations and usages can be valid when we are speaking informally. (I am told that my mother-in-law used to return to her “corn-fed” southern usages when reprimanding her children.)But it is perfectly appropriate to insist upon what has become standard pronunciation and usages when context requires it.

But the reasons that people “talk wrong” – and the ways in which nonstandard language can have its own special delights – are far more fascinating than simple ignorance. I enjoyed Lerer’s book and, if this post held any interest for you, I highly recommend it.

The baseball antitrust exemption has turned out to be one of the great anomalies of American law.  First recognized in the Supreme Court’s Federal Baseball decision in 1922 at a time when “commerce” was understood much more narrowly than it would be in the post-New Deal world, the exemption took on a life of its own in the 1953 Toolson decision when the Supreme Court acknowledged that professional baseball was commerce after all but that it was leaving the matter of invalidating the exemption to Congress.  In 1972, the Court reasserted the exemption in Flood v. Kuhn, and Congress reaffirmed it in 1999 in the Curt Flood Act in regard to all matters covered by the exemption except major league labor relations.

While there is no question that the Major League Baseball antitrust exemption still exists, it is not at all clear what aspects of the baseball business are protected by the exemption.  Does it apply to any undertaking by Major League Baseball, or is it limited to certain baseball-specific activities? Comments made by my colleague Matt Mitten in an interview presented elsewhere suggest that Matt believes that the exemption applies to all aspects of the professional baseball business.

I am not sure that this is true.  A quarter of a century ago the federal district court for the Southern District of Texas ruled that the baseball antitrust exemption did not extend to restrictions on broadcasting.  (Henderson Broadcasting Corp. v. Houston Sports Ass’n, Inc, 541 F. Supp. 263, 265-72 (S.D. Tex. 1982))  So far as I can tell this decision has never been overruled or even directly contradicted by a decision of a different court. Although the Supreme Court has provided no definitive answer, the conventional wisdom appears to be that the exemption applies only to matters central to the “business of baseball.”  This was the standard adopted in the relatively recent case, Major League Baseball v. Crist, 331 F.3d 1177, 1183 (11th Cir. 2003).

Of course this interpretation just replaces one question with another.  We still have to ask what aspects of the baseball business are “central” to its operation, and as of yet, we have no definitive answer.  Clearly territorial monopolies, minor league salary caps; and restrictions of minor league player mobility are central to the operation of baseball, but what else falls into this category?

Now Major League Baseball has gone and entered into a contract with Topps, Inc., giving that company the exclusive right to use Major League team names and logos with in the production of baseball cards. Topps’ primary competitor in the baseball card market, Upper Deck, can still issue baseball cards of players under its non-exclusive license with the Major League Baseball Players Association, but it will not be permitted to use team names or symbols on its cards.  As a practical matter, this will probably force the company out of the baseball card business, at least until Topps’ exclusive license expires.

It is hard for me to see how the production of baseball cards by an independent company could constitute an activity “central to the business of baseball.”  There was a time when baseball cards were a primary way that fans, particularly young fans, learned about the teams and players of Major League Baseball, but in the age of the Internet, it is hard to believe that baseball cards are in anyway a necessary component of marketing Major League Baseball to the public (if they ever were).  Consequently, the new Topps monopoly will likely to be found to be subject to antitrust challenge.  Whether or not the challenge will succeed is a topic for a different post.

On an entirely personal note, I have extremely fond memories of the old Topps baseball card monopoly that existed from 1956 to 1980.  In that period, only Topps produced baseball cards, and the cards were printed on cheap cardboard, packed to the gills with information about the pictured player not otherwise readily available, and packaged with super sweet sticks of bubble gum.  Even with the gum, they were incredibly inexpensive—a penny a card until the late 1960’s, and less than two-cents a card until the late 1970’s.

There were almost no baseball card shops in that era, so cards had to be purchased by the pack in regular stores that sold candy.  If you were missing a player’s card that you felt you needed, you had to buy more packs or else figure out a way to trade with a friend who had a card of the player you wanted. Many kids learned the rudiments of negotiation from such exchanges.

In fact, the only problem with the old Topps monopoly was that it wasn’t a true monopoly.  Fleer, which competed with Topps in the larger bubble gum market managed to sign a few well-known players including a handful of stars—Ted Williams, Maury Wills, and Wilmer “Vinegar Bend” Mizell (who was later a congressman from North Carolina) for example—but the company never had enough players under contract to produce its own bubblegum based player set.  In 1962, the year he was the National League’s Most Valuable Player, the only way to get a Maury Wills baseball card was to find one on the back of a Post Cereal box.

Because the Topps monopoly only applied to cards packaged with bubblegum or its equivalents cards could be marketed with other products, although that rarely happened.  (The Post experiment of putting baseball cards on cereal boxes only lasted for three years.).  In that era, no one thought of simply marketing the cards alone.

If the new Topps monopoly can somehow bring back the magic to baseball card collecting, then it will be a restraint of trade that we should gladly accept.