Anatomy of an Op Ed

Posted on Categories Legal Writing, Media & Journalism, Political Processes & Rhetoric, U.S. Supreme Court4 Comments on Anatomy of an Op Ed

dukeellington-anatomyI authored an opinion piece in support of Judge Sonia Sotomayor’s nomination to the Supreme Court that was published in the June 28, 2009 edition of the Milwaukee Journal Sentinel.  You can read the piece here (and you can read a “dueling” piece authored by Rick Esenberg here).

 What follows is a deconstruction of my own op ed piece.  The final product as it appeared in the newspaper has its origins in the fundamentals of logic and rhetoric.  Law students, in particular, may be interested in the way in which I employ several classic techniques of persuasive writing in order to make my case.     

 Believe in Your Argument: It is not necessary to have an angel for a client, but it helps.  The most accomplished persuasive writing techniques will not hide the fact that your argument is a stinker.  My task is to persuade the reader that my belief – that Judge Sotomayor is a moderate jurist who should be confirmed to the Supreme Court-is one that they should adopt as well.  If I do not believe my own argument, I will not succeed in convincing the reader.  

 Know Your Audience:  My language is directed towards the non-specialist, so I consciously avoided legal technicalities.  Also, I assume that the average newspaper reader will be skimming the text rather than fully engaged in my arguments.  Therefore, I utilize simple and direct sentences as opposed to rhetorical questions or complex syllogisms that require greater concentration to follow. Continue reading “Anatomy of an Op Ed”

Which Declaration of Independence?

Posted on Categories Legal History, Political Processes & Rhetoric1 Comment on Which Declaration of Independence?

800px-summerfest_2008_fireworks_70551When you are at your Fourth of July cookout or fireworks display this week, see if anyone mentions the Declaration of Independence.  If they do, ask “which Declaration of Independence?”  After all, there are more than one.

 In her 1997 book American Scripture: Making the Declaration of Independence, historian Pauline Maier describes the events leading up to July 4, 1776 and points to multiple “other” Declarations of Independence issued by local legislative bodies earlier that year.  Declarations were issued in a variety of places, including Buckingham County (Virginia), Charles County (Maryland), and Natick, Massachusetts.  In most cases, these “other” Declarations took the form of instructions from the citizens of a particular geographic area to their elected representatives in the state legislature or in the Continental Congress.  After recounting the unjustified treatment of the colonies by the Crown, these documents authorize the peoples’ representatives to vote in favor of severing ties with England.  However, some of these Declarations take a different form, such as a judge instructing a grand jury on the source of their legal authority in the absence of a Royal Governor. Continue reading “Which Declaration of Independence?”

Why We Fight

Posted on Categories Legal History, Political Processes & Rhetoric1 Comment on Why We Fight

united_we_win31I often wonder why it is that some people disagree with my political views.  My logic is unassailable, the breadth of my historical knowledge is unmatched, my moral foundation cannot be questioned, and I am far more charming and better looking than my opponents.  Why don’t they agree with me?

My summer project was to seek an answer to this mystery.  I chose three books to read that I thought would provide some insight into the ideological fault lines that seem to run through every facet of our daily lives (and indeed seem to run through this very blog).  What follows are the lessons that I have learned.  I suppose other readers might draw different lessons.  My recommendation is that you read these books for yourself.

My first goal was to understand why the “big government” charge persistently leveled by Republicans against the Obama Administration seems to resonate with some people, but not with others.  Some clues are provided by Gary Wills in A Necessary Evil: A History of American Distrust of Government.  Writing some ten years ago, Wills documents the origin and growth of the arguments against “big government” and in favor of individualism and local control over the course of our nation’s history.  Over time, he argues, these disparate strands of thought have coalesced into a more general anti-government creed.  The specifics of this creed – the belief that amateur, local and voluntary conduct creates greater public well being than professional, centralized, and mandatory regulation — resembles the political philosophy currently espoused by many of President Obama’s critics.

Continue reading “Why We Fight”

Bork Reconsidered, Part II

Posted on Categories Constitutional Interpretation, U.S. Supreme Court5 Comments on Bork Reconsidered, Part II

3601327017_cf29db46c31In an earlier post, I compared the nominations of Judge Sonia Sotomayor and Judge Robert Bork in order to make some observations about the role of stare decisis and its relationship to judicial activism.  My argument was that a respect for the wisdom of past practice and a preference for incremental change will allow Judge Sotomayor to avoid being tagged as a radical jurist unworthy of confirmation.  In contrast, Judge Bork had a record that left him vulnerable to such a charge (even if unwarranted).  Also worthy of mention here is Professor David Papke’s earlier recollection of Professor Bork in the classroom.

In the discussion that follows, I will continue to use the Sotomayor/ Bork comparison in order to draw out the manner in which the Supreme Court’s interpretation of the Second Amendment threatens to undermine the very philosophy of constitutional interpretation that is most closely associated with Judge Bork.

Opponents of the Sotomayor nomination have seized on the Second Amendment as an issue with which to attack her.  Portraying her as an opponent of the constitutional right to own firearms is a strategy that will certainly succeed in energizing the base of the Republican Party.  If she rises to the bait during her confirmation hearings, and expresses any skepticism over the correctness of the District of Columbia v. Heller case – striking down the DC handgun ban– then efforts to paint her as a liberal jurist who is out of the mainstream might gain some traction with the public. Continue reading “Bork Reconsidered, Part II”

He Gave Me A “B”

Posted on Categories Legal Education, Marquette Law School1 Comment on He Gave Me A “B”

archibaldcoxAs my students in Constitutional Law are well aware, my Con Law professor in law school was Archibald Cox.  If you doubt me, you can look it up on his Wikipedia entry, where someone saw fit to memorialize that fact.  No one ever bothered to ask me what grade I received.  At this time of the year, when many of my students are coming by my office to discuss their final grade, it may be comforting for some to learn that Professor Cox gave me a “B.”  I still think that he undervalued my class participation.

Justice Roberts Has A Little List

Posted on Categories Constitutional Interpretation, Judges & Judicial Process, U.S. Supreme Court7 Comments on Justice Roberts Has A Little List

the_mikado1The Supreme Court ruled yesterday in Caperton v. A.T. Massey Coal Company that the Due Process Clause of the United States Constitution is violated by the refusal of a judge to recuse herself when the disproportionate campaign contributions of a litigant on behalf of that judge create a serious, objective risk of actual bias. Rick Esenberg has posted on some of the issues raised by the majority opinion here. For me, the most interesting part of the case was actually the dissent by Justice John Roberts. In it, Justice Roberts objects to the uncertainty that federal judges will encounter as they attempt to apply this constitutional right in future cases with disparate fact patterns. In a bit of theatricality worthy of Gilbert & Sullivan, the Chief Justice’s dissent presents a list of 40 questions that the majority opinion leaves unanswered.

The Chief Justice makes a rather stark assertion: “The Court’s inability to formulate a ‘judicially discernible and manageable standard’ strongly counsels against the recognition of a novel constitutional right.” He cites to Veith v. Jubelirer in support of this statement, which of course held no such thing. In fact, as a plurality opinion devoted to the issue of what constitutes a “political question,” the Veith case is a fairly slender reed upon which to rest such a sweeping proposition. Continue reading “Justice Roberts Has A Little List”

Bork Reconsidered, Part I

Posted on Categories U.S. Supreme Court1 Comment on Bork Reconsidered, Part I

borkIn my third year of law school, the speaker at our law review banquet was a Boston Globe reporter who talked about a book he was writing on the Robert Bork confirmation battle.  I didn’t pay much attention to his speech, other than to complain loudly to all within hearing that a judge would have been a much more prestigious invitee than a reporter.  Ethan Bronner’s book, Battle for Justice, came out the following year and has since been recognized as a classic treatment of the modern Supreme Court nomination process.

The nomination of Judge Sonia Sotomayor provided me with a convenient excuse to reread Bronner’s treatment of the Bork confirmation debate and to consider whether the lessons learned during that experience have any application to the Obama Administration’s first Supreme Court nominee.  The first, and most obvious, conclusion is that extreme rhetoric about the nominee has become an accepted tactic by the opponents of the party in power.  Senator Edward Kennedy’s denunciation of “Robert Bork’s America” as a land where women are forced to seek back-alley abortions and lunch counters are re-segregated will rightly be remembered as the low point in a long political career.  Similarly, the former Speaker of the House, Newt Gingrich, has had his reputation irrevocably damaged by his casual labeling of Judge Sotomayor as a “racist.”  However, in both cases, the extreme rhetoric served the larger purpose of energizing the base against a nomination and simultaneously engaging the attention of the public at large by raising the stakes of the confirmation.  Continue reading “Bork Reconsidered, Part I”

Does Justice Souter Make a Difference?

Posted on Categories Federal Law & Legal System, Judges & Judicial Process, Political Processes & Rhetoric, U.S. Supreme CourtLeave a comment» on Does Justice Souter Make a Difference?

This is my final posting as the Faculty Blogger for the Month of May.  Thanks to everyone who has commented on my posts and a special thanks to my colleague Michael O’Hear.

As we await word on the nomination of Justice Souter’s replacement on the Supreme Court, many observers are wondering whether the change in personnel will make any difference in the Court’s jurisprudence.  The consensus seems to be that the direction of the Court will not change significantly.  Depending upon whom President Obama nominates, however, there is one area where Justice Souter’s replacement may make a difference. Continue reading “Does Justice Souter Make a Difference?”

Legislation of the Year . . . If the Year Is 1950

Posted on Categories Business RegulationLeave a comment» on Legislation of the Year . . . If the Year Is 1950

Senator Charles Schumer recently announced plans to introduce the “Shareholder Bill of Rights Act of 2009.”  This bill is a compendium of corporate governance reforms that shareholder activists have been advocating for many years.  Among other things, the bill would require companies to elect the entire board of directors each year, rather than putting only a portion of the board up for a vote.  It would also require that directors receive a majority of the votes cast before being allowed to serve, and the bill would make it easier for shareholders to nominate their own director candidates to run in opposition to the candidates nominated by management.

Senator Schumer’s bill is best understood as embodying the principle that, when it comes to corporate governance, more democracy is always better.  The assumption is that corporate governance will improve in tandem with increased shareholder voting power.  I question that assumption.

First, more democracy might actually lead to worse directors.  Continue reading “Legislation of the Year . . . If the Year Is 1950”

The Importance of Being Logical

Posted on Categories Constitutional Interpretation3 Comments on The Importance of Being Logical

I went to see the Star Trek movie this past weekend with my twelve-year-old son, Andrew.  He was the one dressed in full Klingon regalia (true story).  The star of the movie is undoubtedly everyone’s favorite Vulcan, Mr. Spock.  As you will recall, Spock is the character who always insists on behaving logically.  Seeing the movie made me reflect on legal education and the importance of being logical.

Teaching Constitutional Law, it is easy to get wrapped up in ideological conflicts and to overlook the key role that logical syllogisms play in the construction of Supreme Court opinions.  Certainly the students do not immediately grasp the connection between formal logic and Supreme Court decision-making.  They begin the semester with the assumption that the members of the Court merely vote their ideologies.  As the students assimilate the various interpretive theories for reading the text, such as textualism or intentionalism, they flirt with the possibility of deriving the meaning of the Constitution in an objective manner.  However, the inconsistent manner in which the members of the Court employ these interpretive methods soon frustrates a fair proportion of the class.  Some students begin to drift towards the view that the decisions of the Court are merely bald assertions of political power, while others begin to flirt with nihilism and the belief that the entire interpretive enterprise is arbitrary.

My personal view is that the United States Constitution is a political document, constructed via compromise between various interest groups and left intentionally ambiguous in several key respects.  Continue reading “The Importance of Being Logical”

Little Reforms Have Big Implications at SEC

Posted on Categories Business RegulationLeave a comment» on Little Reforms Have Big Implications at SEC

The Director of the Securities and Exchange Commission’s 21st Century Disclosure Initiative, Dr. Bill Lutz, was on the Marquette University campus May 4.  He was kind enough to give an update on the Initiative over lunch to a group of faculty from the Law School and the College of Business Administration.  Dr. Lutz is an interesting choice to lead the SEC’s effort to reconceptualize the manner in which the agency collects, analyzes, and disseminates financial information.  He is Professor of English emeritus at Rutgers University, and one rarely thinks of the words “English language” and Form 10-K in the same breath.

The 21st Century Disclosure Initiative finished its Report in January 2009.  You can read the Report here: www.sec.gov/spotlight/disclosureinitiative/report.shtml.  The recommendations in the Report are both modest and potentially revolutionary.  Today the SEC continues to operate under the same system of preparing and filing specific disclosure documents such as annual reports and quarterly reports that was instituted in 1934.  In the 1990s, the Commission adopted EDGAR, a system for filing and viewing each individual report electronically.  However, the “document centric” format remains and anyone searching for specific items of company data today on EDGAR still has to typically scroll through hundreds of pages to find what they are looking for.

The Report by the Initiative proposes the adoption of company-specific databases for each company required to file reports with the SEC.  Continue reading “Little Reforms Have Big Implications at SEC”

Capitalism on Sale?

Posted on Categories Political Processes & Rhetoric3 Comments on Capitalism on Sale?

I am very excited to undertake my duties as Faculty Blogger for the month of May. My colleagues have done an outstanding job in making the Marquette University Law School Blog a “go to” destination for ideas and information about law, politics and society. They have demonstrated an inspired vision of how technology can bring the Marquette community together, and the inaugural year of the blog has been an unqualified success. This makes their apparent lapse in judgment in inviting me to serve as Faculty Blogger for this month all the more surprising. I will try my best not to embarrass anyone.

Arthur Brooks of the American Enterprise Institute had an interesting op ed in the Wall Street Journal on April 30 entitled “The Real Culture War is Over Capitalism.” You can find it on the Journal’s website. His key quote: “Advocates of free enterprise must learn from the growing grass-roots protests [like the “tea parties”], and make the moral case for freedom and entrepreneurship.” I agree with his central point, which is that free market conservatives have made the mistake of assuming that capitalism is a good in and of itself, and have failed to make the case that free markets have moral ends. Is it in fact demonstrable that free market capitalism leads to the greatest economic benefit to the greatest number of Americans, a utilitarian standard with its roots in the classical Greek conception of government? Alternatively, can free market advocates demonstrate that the best way to preserve and promote the dignity of human beings is through a marketplace unfettered by regulation or government oversight, a standard that comes from Catholic social teaching? Shouting “Socialism!” at every government intervention in the market is not enough. Continue reading “Capitalism on Sale?”