Japan’s Vulnerability Under the U.S.-Japan Security Treaty

800px-Japan_US_Treaty_of_Mutual_Security_and_Cooperation_19_January_1960Many have noted that the U.S.-Japan Treaty of Mutual Cooperation and Security could pull the United States into the dispute between Japan and China over the Senkaku / Diaoyu Islands by obligating the United States to come to Japan’s defense in the event of hostilities. Article 5 of the Treaty has the key language and provides that “each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.” Because the Senkaku / Diaoyu Islands are “under the administration of Japan,” there is no question that the Treaty applies to them. For that reason, the dispute over the Islands poses a risk for the United States; if any of the nearly daily incursions by Chinese vessels into the surrounding waters turns into an “armed attack,” the United States will have a legal obligation to back Japan. Yet the precise nature of that obligation is unclear. For a couple of reasons, I think it is more limited than many have assumed.

First, Article 5 does not necessarily require the United States to use military force in responding to an armed attack; the obligation is simply to “act to meet” the danger presented. It is not unreasonable to imagine that the United States could satisfy that obligation by pursuing economic or even diplomatic measures, depending on the circumstances. The vagueness of the text leaves Washington with significant discretion to decide whether a particular response will be enough.

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The Legacy of Gideon v. Wainwright in Wisconsin

I’d like to take the opportunity through my posts this month to talk about some of the trends and milestones that I see in the field of law, particularly as it pertains to our criminal justice system.

Gideon v. Wainwright, the landmark 1963 U.S. Supreme Court case, started with a handwritten petition from Clarence Gideon. The decision in Gideon set the country’s criminal justice system on a different course: defendants who could not afford legal counsel had the right be be provided with such representation.

Although the scope of the constitutional right to counsel was established with the Gideon decision, the responsibility and the details of its implementation were left to the individual states. In the early years following the decision, Wisconsin complied with the requirement through a county-by-county system. This county-based approach changed in 1977 when Wisconsin took the strategic step of adopting a statewide model of indigent defense, establishing the Office of the State Public Defender (SPD) as an independent, executive-branch state agency. SPD trial offices started to open across the state, and the appellate representation, previously overseen by the Wisconsin Supreme Court, was transferred to the agency. The SPD ensures that our state meets the constitutional requirements set forth in Gideon.

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(Marriage) Equality and the Popularity Paradox

=Writing for the majority of the Supreme Court in United States v. Windsor, Justice Kennedy stated that “[t]he Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.” Under this test, the Court struck down a key provision from the so-called Defense of Marriage Act (DOMA), which defined “marriage” and “spouse” for purposes of federal law as referring only to opposite-sex marriages and spouses. The opinion concludes that DOMA’s very object was “to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.”

It is almost trite to say that the result in Windsor would have been unthinkable just a few years ago. Yet this observation strikes at the heart of a paradox in the test applied by the Court: It suggests that a group has a realistic chance of being classified as a “politically unpopular group” deserving of protection only after it has acquired a certain level of popularity. Of course, the recent shift in popular opinion on same-sex marriage in the United States has been spectacular. In 2004, bans on same-sex marriage (and in many cases, also civil unions and other contractual protections of same-sex relationships) were adopted by popular vote in all of the eleven States where such bans had been put on the ballot during the general elections. Today, the States that have same-sex marriage bans on the books outnumber the States in which same-sex marriage is legalized by thirty-five to twelve (plus D.C.). Yet starting in 2010 or 2011, nationwide support for same-sex marriage began to exceed opposition to it. The increased popularity of the cause translated into political action: In 2012, for the first time voters approved initiatives to legalize same-sex marriage in three States (Maine, Maryland, and Washington). In that same year, voters in Minnesota voted down a proposed same-sex marriage ban. In sum, it is safe to say marriage equality has become a mainstream cause, albeit one that is still met with ardent opposition.

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