Burg Law

Ah, the End

2010-05-17T23:56:00.000-04:00

I graduated yesterday. Phew. Three years + 87 credits = 1 law degree. On a magnificent Sunday afternoon in Williamsburg, all the work, fun, and enlightenment of law school culminated in a wonderful commencement ceremony on the Sunken Garden, in the heart of the undergraduate campus of William & Mary. Sandra Day O'Connor gave the keynote address, advising the graduating class of 2010 to do public service and as lawyers, to "disagree agreeably," a fine piece of wisdom. Her speech and presence (she's the Chancellor of W&M) delighted us all, as evidenced by the bursting of flash bulbs when she took the podium.

There is much I will miss about this place, and about law school. First and foremost, the people. The friends I've made here are incredible people, and I am truly, decidedly excited to see how their futures develop. The moment commencement ended, we began fanning out all over the country, from D.C. to Dallas to L.A. to Portland, and many places in between. Of course a good chunk of us will stay in Virginia, even in Williamsburg for the summer to study for the Bar, as I will do. I will also miss the professors and other staff at the law school, who have added so much to this experience. Several professors have done so much for my friends and me that I can hardly express sufficient gratitude. Well, if you're reading, thank you.

So, what next? It's still up in the air. After the Bar, I'll work at a public defender's office in northern Virginia for at least ten weeks. Then there are several possible directions. I've interviewed for a job in Richmond that I should hear about soon, or I could find my way into a PD's office, or I could do something else entirely.

Wherever I land, I'm excited to be done, and to move on to the next phase of my life. Goodbye, Burg Law.

—Rob, J.D.

Finally, a Bar decision

2010-04-17T17:33:00.000-04:00

After many months of deliberation, a pros and cons list that took about a dozen states into account, and after interviews for jobs in New Hampshire, Colorado, California, and Virginia (with one more in Wisconsin yet to come), I have decided to take the Virginia Bar this summer. This was one of the hardest decisions I've ever had to make. California still holds much appeal for me, but the job climate is so bad there—and getting worse—that I can't move out there in good conscience, knowing that it's entirely possible I could pass the California Bar, one of the two hardest in the country, and still not find a law job. I also thought long and hard about returning to the Midwest, perhaps Illinois, but having gone to school in Virginia and knowing more attorneys here, I have a much better chance of making connections that will lead to a job. (If I were to get the job in Wisconsin, I would have to take the February Bar there.)

There are many upsides to taking the Bar here, in addition to the connections I've made, which could lead to job opportunities that I might not have elsewhere. Some have to do with location: Virginia is a beautiful, geographically diverse state, with ocean, mountains, rolling hills and plenty to do outside. It's right in the middle of the East coast, seemingly just a few hours from everywhere. The weather in southern Virginia is terrific most of the year. It's also close to D.C., so if I were to get a job in the District, after passing the Virginia Bar I could waive into the D.C. Bar and practice there. There's also the fact that Virginia has the death penalty, and one of my greatest passions in the law is capital defense. And of course, many of my law school friends will remain in D.C. or Virginia.

The two biggest downsides are one, that I'll remain 1,000 miles from my family and friends in the Midwest; and two, the Virginia Bar exam. The latter requires me to learn things like Secured Transactions, Trusts & Estates, and Virginia Civil Procedure. Ugh. But of course, I hope only to have to take the Bar once. The family and friends part will be harder. I will continue to miss lots of birthdays, holidays and everyday life events. Without getting too emotional about it now, I'll simply say that it will be hard, and that I did not reach this decision easily. There was no right decision, only a choice to be made, and I was the only one who could make it.

So I'm committed to another two and a half months at my townhouse in Williamsburg. Starting May 24, eight days after graduation, I'll attend Bar prep class in the same room where I took Civil Procedure nearly three years ago, with some of the same people. Each day after class I'll come home to study, as if it were my job. In late July, I will drive to Roanoke, put on a suit—still a requirement in Virginia—and sit for the Bar exam over two grueling days. Then I'll wait, as will we all, for nearly three months, until the results are posted. This is the path to lawyerdom, the part they never told me about on Law & Order. Ah well. I'm ready.

One more paper, one more exam, then 3L year is done.

9500 Liberty

2010-04-07T09:12:00.000-04:00

During the summer after my 1L year, I worked on a criminal case in Manassas, Va., and part of my job involved poring over news articles, letters, and blogs, searching for incendiary comments about illegal immigrants. Such comments were not hard to find. After decades as a sleepy, distant suburb of Washington D.C., Manassas — located about 30 miles from the Capitol — and the rest of Prince William County had turned into one of the fastest-growing counties in the nation. The demand for cheap housing labor had brought thousands of Hispanic immigrants to the area so that by 2008, the group comprised nearly 20 percent of Prince William County's population.

Change that quick does not come without conflict. The new film, "9500 Liberty," beautifully details the battle waged between "Help Save Manassas," a grassroots anti-immigration group, and the immigrants and their allies in the community over the span of several years. The film follows the actions of the Prince William County Board of Supervisors, which due to pressure from Help Save Manasssas, enacted one of the most stringent anti-immigration policies in the nation.

Last night one of the filmmakers of "9500 Liberty," Eric Byler, came to William & Mary for a screening of this outstanding documentary. Byler and his girlfriend/co-documentarian, Annabel Park, are also co-founders of Coffee Party USA, a movement formed in response to the often incendiary antics of the Tea Party. The Coffee Party has nearly 200,000 fans on Facebook, and I've heard Annabel on the Washington D.C. NPR station and seen her on CNN. Last month, the Coffee Party held meetings in 44 states, with an aim toward introducing civility into our political discourse. In her interview on NPR, Annabel spoke of the common grounds (NPR's pun, not mine) the Coffee Party shares with the Tea Party — both loathe corporate influence in government. But unlike the Tea Party, the Coffee Party believes that government has a significant and perhaps even a positive role to play, if we the people will only get involved in it.

The film's website does not say when "9500 Liberty" will be available, but last night a professor of immigration studies at W&M said that she had seen many movies on this issue, and this one was "fantastic." I agree. Check out the trailer here.

The existential plastic bag

2010-04-04T09:31:00.005-04:00

Sartre wrote that we are condemned to be free, forced all our waking hours to make choices that will decide our essence as human beings. He also wrote of the absurdity of our existence.

ab•surd•i•ty | əbˈsərditē; -ˈzərd- |
noun ( pl. -ties): the quality or state of being ridiculous or wildly unreasonable

Yes, for life on this planet, that sounds about right.

So it was with great pleasure that I encountered "Plastic Bag," a remarkable 18-minute short film by Ramin Bahrani and narrated by the great German director Werner Herzog. The protaganist is no ordinary plastic bag, but one with an existential crisis of epic proportions. This is a beautifully shot, poignant film about the environment (particularly the horrendous plastic vortex in the Pacific), but it is also a fun exercise in existentialism. Enjoy.

LAW NOTE: In response to your comment, Tony, several U.S. cities have passed ordinances banning plastic bags as well, including San Francisco and Los Angeles, and several others, such as Madison, require that plastic bags be recycled. No state has yet banned plastic bags (Virginia's legislature has killed such a plan, unsurprisingly). L.A.'s ban, which is set to start July 1, will not go into effect if California imposes a 25-cent tax first. China banned plastic bags prior to the 2008 Olympics in Beijing.

That Disturbingly Pleasant War Criminal, John Yoo

2010-03-19T09:18:00.004-04:00

The W&M Law chapters of the Federalist Society and the American Constitution Society, along with the Institute of Bill of Rights Law, were kind enough to invite war criminal and Berkeley Law Professor John Yoo to campus yesterday, the last stop on his book tour. I don't fault them for wanting him to appear. Of course the author of the torture memos drew a packed room of more than 100, mostly law students, for a Thursday lunch lecture. People who are largely responsible for the atrocities at Abu Ghraib and Guantánamo Bay have a way of drawing a crowd.

As our way of showing discontent, a handful of us from the W&M Law ACLU wore t-shirts (see photo) and handed out Glenn Greenwald's comprehensive guide to John Yoo's War Crimes to those who attended the lecture. In case you don't want to read the entire article, here's a sampling of John Yoo's work:

If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions.

And here's Greenwald's tidy, accurate analysis:

John Yoo's Memorandum, as intended, directly led to -- caused -- a whole series of war crimes at both Guantanamo and in Iraq. The reason such a relatively low-level DOJ official was able to issue such influential and extraordinary opinions was because he was working directly with, and at the behest of, the two most important legal officials in the administration: George Bush's White House counsel, Alberto Gonzales, and Dick Cheney's counsel (and current Chief of Staff) David Addington. Together, they deliberately created and authorized a regime of torture and other brutal interrogation methods that are, by all measures, very serious war crimes.

If writing memoranda authorizing torture -- actions which then directly lead to the systematic commission of torture -- doesn't make one a war criminal in the U.S., what does?

Yoo, in his disarming way, diffused any possible tension by beginning with a story about his appearance on The Daily Show, and spending the remainder of the lecture discussing his new book on evaluating our greatest and worst presidents. In a room full of peers and professors, to accuse Yoo of the worst crimes imaginable — crimes he is almost certainly guilty of — would have garnered almost universal scorn. Still, I feel a pang of disgust with myself this morning. Instead of making such an accusation yesterday, I asked Yoo what would bring about an end to the war on terrorism, and which branch of government can and should make that call. He said that this is perhaps the toughest legal question, and suggested that much legal work remains to be done on how conflicts with non-state actors (i.e., terrorist groups) can come to a successful conclusion. (His answer, by the way, is that the President or Congress—not the courts—can and should make that call, but when and how that will happen remains a mystery.)

But it seems to me that a more difficult question looms: when will someone—whether a president, a member of Congress, or a third-year law student—muster the necessary courage to confront a war criminal like John Yoo and force him to accept responsibility for the reprehensible acts that have led directly to our diminished standing in the world? And will such a confrontation ever bring about the kind of justice we should expect here in the United States?

Spinning the Globe

2010-03-14T11:51:00.003-04:00

When I was a kid I used to love to play "spin the globe," always imagining that I would someday go to the places where my finger landed — Ivory Coast, Afghanistan, Palau, Uruguay. The more exotic sounding, the better. I'd alternate between putting my finger along the Tropic of Cancer and the Tropic of Capricorn before I closed my eyes and spun, not wanting to land in the Northwest Territories, Siberia, or Antarctica. Iowa was cold enough. The game was so central to my sense of adventure that when I left for college, I asked my mom for a new globe to take with me to my dorm room.

When I moved halfway across the country to Virginia I left my globe at home, but it turns out I could use it, this time for real. It has almost come to this — within weeks I will decide which Bar exam to take, and in so doing, will pick the state in which I will live and (hopefully) work for the foreseeable future. Like many of my law student compatriots across the country, I will likely graduate without employment:

Although numbers are not available yet, many members of the class of 2010 and 2011 may graduate without a job, and those who are lucky enough to find employment likely will collectively have lower salaries than their predecessors. In short, the job market is more challenging than it has been in many years, as well-paying jobs are in short supply.

ABA Commission on the Impact of the Economic Crises on the Profession and Legal Needs, "The Value Proposition of Attending Law School," http://www.abanet.org/legaled/prelaw/The%20Value%20Proposition%20of%20Attending%20Law%20School.doc.

Having chosen a career, public defense, that theoretically allows me to go anywhere in the country, I am bound only by a few practical considerations: one, how much more I am willing to go into debt; two, whether I want to do death penalty work; and three, whether my desire for close proximity to family overrides my interest in capital punishment.

First, the debt part: law students graduate prepared to study for the Bar exam, but not prepared to take it. Shortly after graduation — either the following week or literally the next day — we begin taking Bar review courses, usually at a cost of about $2,500. These courses are the ultimate teach-to-the-testers, giving us the form and the substance we need to please the lawyers who'll soon be grading our Bar exams. During this two month Bar review time, from mid-May to late July, none of us will be working. Then, after we take our respective Bar exams the last week of July, comes another break while the state Bar associations grade the exams. During this time we are neither law students nor lawyers — just graduates, hoping for a license. Depending on where you take the Bar, this state of flux can last from about six weeks (North Carolina), till about Labor Day, to nearly three months (California), almost until Thanksgiving.

For those of us who don't have jobs and have a hard time finding them because we're not licensed to practice, this can be an extremely costly wait. To offset those costs, I can choose a state where I know lots of people and can live on the cheap, such as Virginia or in the Midwest. The alternative is California, where it would be incredibly difficult to live cheaply, and I would incur thousands more in debt while waiting for gainful employment.

Second is the death penalty, which makes me passionate about practicing law. For that, I can stay in Virginia or go to California, or to Illinois, or to any number of places in the South, like North Carolina, Texas, or Alabama. (There is also one bonus to staying in Virginia: because I came to law school here, this is where I have the most law-related connections. I am not guaranteed a job, by any stretch, but I have as good or better a chance at finding one here than anywhere else.) I cannot go to places like Wisconsin, Minnesota, or Iowa, however, and expect to do death penalty work. These states don't have capital punishment.

But they are fine places to live, which brings me to the last consideration: proximity to family and, by extension, quality of life. Virginia, California, and the Midwest all have their pros and cons, but the Midwest has that unique distinction of also being home to my family (not to mention a lot of important friends, though I can say the same now about having many close friends in Virginia). Illinois, then, would seem to be the only place that has both the death penalty and proximity to family. It also has Chicago, an extraordinary city and the home of my beloved Cubs and Bears. The only problem is that I have precious few legal connections in Chicago. But I could still go, volunteer, and hope that I land on my feet.

Well, there is my globe-spinning thinking laid bare. Sweet home, Chicago?

Lessons in Futility: Senator Warner's Job Fair

2010-03-08T19:08:00.007-05:00

Pavlov would have had a field day with law students. The other day a fellow law student and I discussed our respective addictions to checking our email. That particular compulsion stems not only from self-indulgence, though — this institution has conditioned us well. We check our email dozens of times a day, if not constantly (thanks to Gmail Notifier) so that we don't miss class assignments, updates on some law school happening that needs urgent attention (e.g., registering for classes), or the latest job opportunity. In an economy some have dubbed—OK, Above the Law has dubbed—"the worst legal economy ever," we can't afford to miss an entire career fair that grows from mere announcement into actual existence in a matter of five days.

So there I was this morning, panting and drooling to the sound of the potential employment bell, fighting the strange confluence of Palin bumper stickers, cigarette smoke, and absurd traffic along US-17 North through Fredericksburg, Va., on my way to a federal government job fair. Virginia's junior U.S. Senator and former governor, Mark Warner, trumpeted the job fair in an email last Wednesday:

U.S. Senator Mark Warner is hosting a job fair on Monday, March 8th, for Virginians looking for work in the federal government. The event is free and open to the public.

More than three-dozen federal agencies will participate, including: the Federal Aviation Administration, the U.S. Fish and Wildlife Service, Defense Intelligence Agency, FBI, IRS, the Office of Personnel Management, FEMA, the Peace Corps, the Transportation Security Administration, the Department of Labor, and the U.S. Secret Service.

Here are the details:

DATE: Monday, March 8, 2010
TIME: 9 a.m. - Noon
LOCATION: Univ. of Mary Washington - Stafford campus
College of Graduate and Professional Studies, University Hall
125 University Boulevard, Fredericksburg, VA
For more information, and to RSVP, visit: http://warner.senate.gov/jobsfair

Honestly, it sounded too good to be true. In this economy, who wouldn't want a cushy job working for the federal government? One guy I talked with in Fredericksburg this morning said he'd told his duly-employed son to come home for the occasion, in the event that he could land better, more secure employment. The dad later called back and listened to an "I told you so, Dad" speech. But I'm getting ahead of myself.

After having several discussions about the job fair, I tentatively decided to go, even if it meant going alone. Then yesterday, a second email from Sen. Warner's office arrived: "There has been an overwhelming response to this event. In anticipation of close to 5,000 attendees, the hours have been extended from 9 a.m. to 4 p.m. and additional parking locations have been added." I began to get a sinking feeling about my chances at this job fair but still felt that going was the prudent thing to do. So I went.

I found the Stafford campus of Mary Washington College around 9:30 a.m. this morning, surprised that it took me 45 minutes just to get through Fredericksburg. As I waited to turn left off US-17, I noticed a few things: a Walmart to my left, several police cars strategically placed to direct traffic, and a man wearing a suit and holding a sign that said, in black permanent marker, "More parking @ Walmart." Three minutes later, as I trolled the Walmart parking lot searching for a spot, I would discover that at 9:30 a.m., half an hour after the start of the job fair, the man in the suit's sign was already outdated. I parked in a residential area, just beyond Walmart.

Already the masses of people had become obvious to me, and I quickly identified with them. We came in all shapes and sizes, all ages, all races, our business suits alternately expensive, cheap, and worn. There were optimistic undergraduate women and dapper gray-haired men who could just as easily have been Wall Street executives. But mostly there were lots of middle-aged men and women—black, white, Asian, well-dressed, shoddily dressed, carrying suitcases and canvas bags in various states, from top of the line to beyond repair. They all walked in one direction, with determined looks on their faces. My sinking feeling from yesterday had morphed into futility. I was not getting a job today, I knew that before I came, but I had thought that I might get to speak with some person who at least worked for the federal government.

Then I saw the line. Starting at the entrance to the Mary Washington building, it wrapped around one line of cars, then another, then another, then one more. One person estimated the number of people at 2,000, and it seemed close enough to me. But estimating that number, difficult as it seemed, would prove less futile than standing in the line itself. (The final tally was more like 7,000, according to the Virginia Business Journal.) I reached the end and took my place next to a middle-aged man in a wool suit full of holes which seemed to have come from a cat; a bright-eyed senior from George Mason, who wore four-inch heels and her best pearls; and a woman who professed to having two master's degrees, in English and anthropology.

As I gazed at the ecclectic crowd, my sinking feeling morphed into one of surreal futility. The guy and the wool suit and I had a similar sensation — that a person could have made quite a bit of money simply by walking around the parking lot with a cart full of coffee and other goodies. For a moment, we both longed to have thought of that ahead of time. A minute later, he bid adieu and left his place in line. I soon followed, roughly five minutes after I had come to the end of the line. I wished the undergrad and the Ph.D student the best, and walked toward Walmart.

Inside, as I searched for a beverage, I found more scenes of surrealism. The store was virtually empty, save for a few like-minded souls wearing suits and a "manager's meeting," described to me by a cashier. The Walmart managers were meeting to discuss their plan of action for the long day ahead, a day with a parking lot full of cars owned by people waiting in a long line — across the street. In the juice section, I met the dad I described earlier. He and his wife told me of their own economic woes — the woman ran a struggling photography business, but said they would persevere. I told them my situation, said I'd be fine, and they wished me luck. I left the store heartened. Of course everything will be fine.

Just outside the door, a gathering of old men, some of them embittered by the day's events so far. One had a new, juicy bit of information: one of the federal government employers, sensing the hopelessness of the long day ahead, had stepped outside to inform the people in line that only a few of the employers were actually accepting resumes, and that our best bet was to go online to apply for jobs with these federal agencies. To USAJobs.gov, that unobliging harbinger of hopelessness that we'd all visited at one time or another — long before we drove to Fredericksburg.

On the drive home, after reading Alice in Wonderland to put surrealism in proper perspective, I called Sen. Mark Warner's D.C. office. I had a pleasant conversation with a young male staffer and told him of my experience, and of the overwhelming sense of futility the day had wrought. He empathized in a genuine way, commended me on getting a law degree, and asked what message he could pass along to the senator on my behalf. I told him that, aside from finding employment, I worry most about getting health insurance after graduation. COBRA premiums run about $250 per month through the university, and that's just not something I can afford. I told the staffer that I hoped his boss would continue to support health care reform. He thanked me, and I felt that the day had not been quite so futile. It was barely after noon, the sun was shining, and spring break had just begun.

Ode to Spring, Break, and the Light at the End of the Tunnel

2010-02-28T09:29:00.001-05:00

It's late February and Virginia still clings to winter like a pop radio station clings to Gloria Estefan: it hasn't done much for this place, no one cares for it, and yet it just won't go away. Lately the wind's intensity here has rivaled that of the Great Plains at times, though it will never have a Midwestern wind's endurance. The snow here has finally melted but flurries taunt us in this week's forecast. The rhythm is going to get you. Come on, sunshine and green.

(Before I go further, I should say that the title of this post is a tribute to my Cornell friend Aaron in Los Angeles, who writes a blog called Odeable Edibles, "A slapdash flight into a world of poems that should not exist." Check it out.)

The end of law school is now clearly in sight. On the other side of Spring Break, which starts next weekend, is the last half of the last semester of the last year. New editorial boards have taken the helm of William & Mary's four law journals, a new executive board has been elected to the Student Bar Association, and the administration has released the class ranks that determine who will join the Order of the Coif, that fraternal order of law students not unlike Phi Beta Kappa for undergrads. My own involvement in the law school has dwindled in its breadth, if not its depth. For the first time this year I will not be joining the Student Hurricane Network's now annual Spring Break trip to New Orleans. Fourteen others will, however, and of that I am glad. The ACLU leadership has finally changed to optimistic, energetic 1Ls. I was once one of those (now I'm just optimistic and energetic). I am lucky to be a student representative on a law school committee examining Legal Skills, one of our school's signature programs. It seems that now, every law school must look inward to make its students more prepared for a difficult legal job market. These days I also find pleasure in giving tours to prospective students, finally able to explain this place to strangers with some confidence. They ask fun questions like, "How do the students treat each other? Do they really tear pages out of each other's textbooks?" and "What's it like to live in Williamsburg?" I tell them the truth: we're good people, a decent community. No, we don't tear out pages; we share outlines. The competitive moments do come, but they're primarily reserved for exam days and Moot Court tryouts. And living in the Burg is a pleasant experience, thanks to the historical charm and the other people who live here.

It's difficult to say whether anxiety or relief pervades my classmates, so close to the end. I fluctuate between the two moods myself, depending on how much sleep I get. When I squeak by with four or five hours, I stress the future, wondering when I'll finally know where I will take the Bar exam, whether I'll have a job before graduation, and when I'll be able to tell my parents that their investment in me was a good one. When I'm fortunate enough to get seven or eight hours, I cast worries like those aside, and push through my day with a sort of debonair delight, realizing that I may never again enjoy a time like this. All the uncertainty aside, here I am, on the cusp of graduating from a laudable institution, amongst friends and future leaders of society, enjoying good health and good company on a daily basis. There is much I am thankful for.

On the filibuster, and the SOTU

2010-01-28T12:33:00.000-05:00

Here's my recent post to the W&M American Constitution Society blog, on "Mitigating the Filibuster." Without the Republicans' abuse of the Senate's arcane rules, President Obama would already have signed health care reform and climate change reform into law. Period.

As for the State of the Union last night, I thought it was an excellent speech. Obama made his priorities clear and reaffirmed his belief in the principles that we elected him for — that the American people are resilient, that Washington must change the way it governs, that we must end the war in Iraq, and that government must provide a better social safety net for the least among us. Since his election, a new priority has emerged of necessity: that government must do a better job of regulating the financial system. Our growth in the 2000s was largely the result of speculation and the housing bubble. The growth went largely unnoticed for the average American, who saw his wages decline during that period. We can't keep building on a house of sand. He was also right to say that without the stimulus package, we would be in much, much worse shape than we are today.

I disagreed with him on a few points. A three-year spending freeze on discretionary spending is unrealistic, won't do much to cut the deficit, and is essentially pandering to the Blue Dogs in the House. He basically quoted that part from a speech that John Boehner gave last year, but I'm sure Republicans will still find a way to criticize him for it. He's also wrong about the Citizens United decision, the one that allows corporate spending on campaigns. The outcome's going to be bad, at least in the near term, but you can't criticize a Supreme Court decision simply because you don't like the outcome. The conservative justices got the law right — the First Amendment protects the right of people who incorporate to speak about political candidates. Any legislation that Congress passes in response will be a waste of time, and will probably get struck down.

I found the reaction of the Republicans to a few key parts of the speech absolutely amazing. They paint Obama as a tax and spend liberal but when he said — quite truthfully — that his administration has not raised taxes once, but in fact has cut taxes 25 times, the Republicans sat on their hands. They don't like lower taxes? Hmm, that's funny. When he said that the biggest banks (not all the banks, just the ones that got TARP funds) should have to pay a fee until the rest of the bailout money is repaid, the Republicans sat on their hands. Really!?! The banks shouldn't have to repay the bailout money? Also, why do Senate Republicans (except Judd Gregg) oppose the creation of a bipartisan commission on reducing the federal deficit? I thought it was clear last night that Republicans will oppose Obama even if he proposes initiatives that are consistent with their ideology.

Also, he was right to tell Democrats not to "run for the hills" just because of the special election in Massachusetts. They do still have huge majorities and if they pass a jobs bill, and the economy keeps growing, they'll keep most of those majorities in November. He's also right to keep calling for more transparency. It's Congress that's sitting on its hands. They should post all earmark requests online, so that we know which members are increasing the deficit, by how much, and for which projects. And it's about time we repeal Don't Ask, Don't Tell. What a moronic policy, keeping people in the closet. Finally, health care reform will get done, as it should.

A Big Week for Old Media

2010-01-22T13:33:00.003-05:00

The world of media is changing so fast even the New York Times, the paper of record, can't always keep up. This week three developments marked significant shifts in the future of the media business model. All three could benefit the struggling daily newspaper industry, or at least what's left of it.

The first is perhaps the most obvious, because it comes from the newspapers themselves. The New York Times this week announced that it would begin charging nonsubscribers for frequent access to its website, starting in 2011. This is bad news for frequent news consumers, bloggers, and probably even cite-checking law students, who all rely on easy access to the Times' incredible archive of reliable information. But it's probably good news for the newspaper itself, which will see an immediate spike in revenue. With ad sales and circulation declining, the Times Company's decision to charge for access to online content will temporarily anger readers (like me) but undoubtedly will help the paper retain its invaluable news staff. This isn't a panacea for the newspaper industry, but others will watch to see if the Times' decision helps stop the bleeding. If it does, other large newspapers still standing in 2011 will likely follow suit.

Second, the Wall Street Journal claims to have confirmed rumors that Apple will unveil its long-anticipated iSlate tablet device next Wednesday. If it sells half as well as the iPhone, this device will revolutionize the way we access digital information. Few people enjoy reading large quantities of text on computer screens, iPods, or Blackberries but increasingly, not doing so leaves a person in the dark. Most of us need to access digital information with great speed and frequency, so we do it in spite of these reservations, and our preference for paper. I'm not suggesting that books will disappear, of course, only that Apple is filling a need. The iSlate is great news for newspapers because it decreases the need to distribute the paper versions of their product, cutting circulation costs without losing readers. (As an aside, the iSlate could also be fantastic news for college and law students. Think of the potential for digital textbooks to drive down costs.)

The third development is more subtle, and comes packaged in what seems like bad news: the U.S. Supreme Court held yesterday, 5-4, that people using the corporate form have the same free speech rights in political campaigns as the rest of us. Since Congress passed the McCain-Feingold Bipartisan Campaign Finance Act, for-profit and non-profit corporations, as well as labor unions, were limited in the ways they could donate to and speak about political candidates. The Act exempted media corporations, meaning that a giant corporation like Fox News could say whatever it wanted about a candidate up until Election Day, while a non-profit group like the ACLU had no such ability to endorse or criticize a candidate. Media corporations, now on a level playing field with other corporations, have mixed views about the ruling. The Wall Street Journal hailed the ruling as a victory for the Constitution and free speech rights, while the New York Times (long a supporter of campaign finance reform) assailed it as a "blow to democracy". Whatever your feelings, until Congress makes a change, corporations are free to start buying political advertisements. Who will get all this money? The old media. The same New York Times Company that criticized the ruling will undoubtedly accept these advertising dollars. The Times editorial board may continue to support campaign finance reform but the Times Company's board of directors surely will not stop this new flow of money.

Not a bad week for old media.

The beginning of the end, and televising the Prop 8 trial

2010-01-14T11:45:00.003-05:00

My final semester of law school began this week. It feels a bit surreal to know that, to know that in a few months the people I've grown accustomed to seeing in the halls will be on their way to jobs at law firms across the country, clerking for judges, or moving back in with their parents (as I may do myself, sorry Mom and Dad). But here we are, not quite sure why we're taking classes like Selected Topics in Corporate Governance, Natural Resources Law and Legislative Redistricting, except that we need the credits to graduate. My schedule is a healthy mix of practical lawyering skills and abstract curiosity satiation:

Philosophy of Law: Is there a moral duty to obey the law? What is the essence of a law
Domestic Violence Clinic: seeking protective orders for victims of domestic abuse
Law & Literature: essentially a book club in which we read four novels, and meet with food and wine at a prof's house to discuss them
An externship with a local public defender's office: hoping to do a ride-along with the police department!
Trial Advocacy: running through all the steps of a mock trial
Select Topics in Criminal Justice Seminar: comparing how different common law countries handle criminal justice issues differently, such as police interrogation, equal protection, punishment, sentencing, etc.

Many of us are still job-hunting, of course. Having read an article that says this is the worst legal job market since the Great Depression, though, I'm not stressing too much about it, except that I'm not quite sure where to take the Bar exam. Oh well. Good things come to those who wait.

I want to comment on a frustrating decision the U.S. Supreme Court handed down yesterday. A pair of California lesbians filed suit in federal court, challenging the constitutionality of Proposition 8, the 2008 referendum that made same-sex marriage illegal in California. The women's lawyers are David Boies and Ted Olson, two of the most experienced Supreme Court advocates in the country, who just happened to argue both sides of Bush v. Gore back in 2000 — against each other (Olson argued for Bush, Boies for Gore). Olson, a well-known Republican conservative, believes that people like him should start accepting gay marriage, and he feels passionate enough about it that he's willing to take this case all the way to the Supreme Court.

The federal judge presiding over the trial, which started Monday, agreed with the plaintiffs' request to put each day's proceedings on YouTube after court ended for the day. This was an unprecedented step for a federal judge, and a fantastic one. We expect openness from the executive and legislative branches of government (C-Span and C-Span 2 are good examples) and though we don't always get transparency, we're at least frustrated by it. The judiciary, however, has gotten away with largely shutting us out, and we don't even make them apologize for it. We give federal judges the ability to open civil trials by putting broadcasts of the proceedings online. (Criminal trials are quite different, because of defendants' rights, and would command a more careful set of broadcasting rules.)

The defendants objected to the webcasts (why? are they afraid they'll look bad?) and eventually appealed to the Supreme Court, which on Monday issued a temporary stay, preventing the webcasts until it had time to make a more informed decision. The Court issued that "more informed" decision yesterday, blocking the YouTube webcasts for the remainder of the trial. The Court did not say, however, that broadcasting is a bad idea, or that it would offend some constitutional right of the defendants (it wouldn't). The Court merely said that the federal judge may have violated a federal statute by not providing enough time for public comment on his decision to change a local rule and allow the broadcasts.

If this decision seems downright silly, it's because the judge did allow a couple of days of public comment and during that time, he received nearly 139,000 comments. Of those, all but 32 were in favor of televising the Prop 8 trial. Would more time have yielded more negative comments? Probably. Would it have yielded exponentially more positive comments? I think it's likely. The public favors openness.

The Supreme Court's (unsigned) decision blocking the broadcast of the trial was 5-4, with the conservative members in the majority and the more liberal members dissenting. I'm optimistic that in time, the Court will change its mind about broadcasting federal civil proceedings. When it comes time to decide the merits of this issue, I hope that at least one of the conservative justices will change his mind.

Winding Down the Fifth Semester

2009-11-19T00:08:00.007-05:00

Traveling has dominated the first semester of my third year, and I've enjoyed every bit of it. Early on I had an election law class in D.C. on two different weekends, and a job fair there another weekend. I stuck around to attend an oral argument at the Supreme Court with a good friend, one of the best experiences of my three years here.

Because it was only the second day of the term, we got in line around 5:30 a.m. We were numbers 53 and 54. At 9:30 the guards let in the first 50 people, but we stood there waiting nervously. Twenty minutes later, ten minutes before the start of the argument, the guards let us in. We sat in the back row and watched the nine Supreme Court justices take their seats in United States v. Stevens, a First Amendment case involving a man who'd been sentenced to three years for showing videos of dogfighting. My friend and I enjoyed every minute of it, and afterwards we spent an hour and a half discussing the case and all its implications. An awesome day.

More recently I've made weekend trips to New Hampshire to visit friends, Iowa to visit family, and New Haven, Connecticut for a conference at Yale Law School (pictured) on the "New Media Ecology." I drove with two friends from W&M. We learned a lot about the future of media in the digital age, sustainable business models for newspapers, the unbundling of news, and the increased reliance on Wikipedia, among other things. Mostly we gleaned that we have little to fear from the future — the delivery of news will undoubtedly continue to change, but this creates as many opportunities for engagement as it does crises. Though some academics worry that society is becoming more polarized and seeking out news outlets that confirm their opinions, it's also true that more people are paying attention to news and participating in it to some degree. Many more of us see opportunities to add content to online sites or at least send articles to our family and friends, stimulating conversation and creating debate. Some argued that these developments do not bode well for society but others, including me, believe that these changes will make us a better, more engaged democracy.

For several hours the last two nights I have made phone calls on behalf of the law school admissions office, contacting admitted students and answering their questions about the law school experience. It's a strange thing to feel like, at least for these future law students, I'm a bit of an expert on all this — being at William & Mary, living in Williamsburg, knowing the people here. It doesn't seem that long ago at all that I was in their shoes, excited to get to law school but with no idea what I was in for. I'm looking back at it all rather fondly now, though of course it's not over yet. I have chosen my classes for the final semester. The job search continues.

In the last week or so I've spent some time reflecting on how my worldview has changed over the last two-plus years. I have come to this conclusion, and sorry if it seems rather obvious, but I think it's worth stating:

We human beings are all deeply flawed creatures. Each of us has countless faults, some glaring, some visible to others but not to ourselves, some obscured to most people but painfully known to those closest to us. We tread always on dangerous ground when we begin to judge others for their faults, though judging others is impossible to avoid. It's part of our human condition, making value decisions about the people around us, the people we hear about on the news, the people we see at work and at school. Still, we so rarely know the full story. Indeed, we almost never know the whole story, what makes others tick, the pressures that bear down on them, the difficulties they endure and likewise the privileges they have known.

I'm learning to keep this in mind, in no small part because it will be necessary when I become a public defender. To represent clients with rough histories, one must learn to love them, and loving them means appreciating all the hardships they've endured, all the choices they've made under difficult circumstances. I have led a relatively privileged life, with the love and support of family and friends and communities, so much of this is new to me. But over the past two-plus years, I have only had to open my eyes and walk into one incredible new experience after another, meeting so many inspiring attorneys, investigators, and clients along the way.

We are all deeply flawed creatures. But we all have so much potential for goodness. Ayn Rand once wrote, "Judge, and prepare to be judged." I once agreed with this, but now I would advocate a different approach. (I've been listening to Stoic podcasts lately.) Be slow to judge. In the words of Epictetus, "When you are offended at any man's fault, turn to yourself and study your own failings. Then you will forget your anger." Ah, philosophy, how I've missed you.

Equal Justice Works

2009-10-30T10:28:00.005-04:00

Last Saturday I attended the Equal Justice Works Conference and Career Fair in Washington D.C. The two-day event is one of the largest gatherings of public service law employers and law students in the nation. EJW also puts on a similar job fair later in the fall at the University of Richmond, and between the two, I've landed both my summer jobs. So I get pretty excited about EJW. The way it works is students apply for interviews through a website, a month or so before the career fair. Employers take a few weeks to sort through the applications, then decide who they want to interview, and we get notified by checking the website. This year I had two half-hour interviews, both of which went fairly well, and I stopped to talk with a third employer that did not offer me an interview, but was willing to take another look at my resume, transcript, and writing sample.

Another great part about EJW is the speakers they bring in. This year's featured speaker was Ralph Nader, consumer advocate (we can thank him for seat belt laws) and of course, perpetual presidential candidate. Many people blame Nader for Bush's election in 2000, but I tend to side with the camp that believes there were a lot of other things going on — the butterfly ballot in Palm Beach, the 200,000 Florida Democrats who voted for Bush, the Gore campaign's weak effort to win a recount and of course one of the worst decisions ever to come out of the U.S. Supreme Court: Bush v. Gore. All of this is to say that it's certainly useless and most likely wrong to blame Nader for Bush's presidency. A Harvard Law grad, Nader is amazingly smart and a dynamic speaker, so it was fun to hear him lecture a bunch of eager law students frantically searching for jobs. At 75 years old and with an accomplished career of activism, Nader can take the long view.

Nader spoke about the deficiencies of legal education, a topic that interests me a great deal. In particular, he talked about how the law school curriculum focuses on areas of the law that serve to protect corporate interests. He used an example from his Harvard days. He asked the crowd, "How many of you studied landlord/tenant law?" Because we all took property as first-year law students, we all raised our hands. Nader said he was excited to study landlord/tenant law as well, but at Harvard, somehow they never got to the "tenant" part. That is to say, the vast majority of landlord/tenant law has to do with a landlord's rights. Tenants have few rights. This is no accident. Nader then discussed the deficiencies of how the subject of contracts is taught. He focused on contracts of adhesion (e.g., the lengthy, standard form contracts you sign every time you sign for a loan, download a piece of software, or purchase a cell phone plan). Nader said that 99% of the contracts we sign in our lifetimes are contracts of adhesion, but most contracts professors don't even spend a day of class discussing them. (I believe my contracts professor spent several days more than that, but his point is well taken.) A big problem with contracts of adhesion is that large corporations tend to use the same language in their contracts, so that if you don't like the terms of a loan that one bank offers you, it will do little good to "shop around," because other banks offer essentially the same terms. In Nader's view, there is too much collusion, too little competition, and a whole lot of oppressing the person who signs for the loan. The "pull yourself up by the bootstraps" refutation of Nader's argument, of course, is that if you don't like the terms, don't get the loan. And that would be fine for A) someone who comes from a family with a lot of money who doesn't need to worry about loans, or B) someone who never plans on going to college, buying a car, or buying a home. "There is no freedom of contract," Nader said. Contracts of adhesion "represent the private legislature of the corporation." In other words, these contracts suck, and the best way to fix them is through federal legislation and regulations, which is what Nader has pushed for most of his adult life.

Nader also spoke about the need for law students to organize to do social good in the 21st century. We have more ways of connecting with one another than ever before, and yet we think of our cell phones and email "as toys, not as tools." The guy from EJW who introduced Nader used this opportunity to recall the Student Hurricane Network, which was started at an EJW conference in 2005, shortly after Hurricane Katrina, when law students from Tulane University in New Orleans connected with law students from around the country who wanted to help however they could. Nader wants us to do more of that. Nader spoke of the need for law students and young lawyers to have passion so that they can affect social change. "What does it take to get law students angry — really angry?" he asked. "If you don't have fire in your belly, it doesn't matter." Finally, he called on us to raise the level of small talk in law schools across the country. Instead of asking each other about the latest drinking adventures and job interviews, we might ask one another about what we're doing to change the world.

The other phenomenal speaker at EJW was Harold Koh, formerly the dean of Yale Law School and now legal adviser to the U.S. Department of State. Koh gave a hilarious, inspiring talk in which he discussed the Top 10 reasons to do public interest legal work. He was preaching to the choir, of course, because we were all at the conference seeking this kind of work, but it was still a great speech. In addition to being an incredibly accomplished lawyer, he's a self-deprecating humorist. He talked about his wife, Mary Christy-Fisher, who is director of the New Haven Legal Assistance Program, which provides legal aid to the poor people of Connecticut. Koh spent his first years as an attorney working at a large law firm, so in his marriage, his wife has at least historically been more of the public interest lawyer of the two. "When I got this invitation to speak, I asked my wife," Koh said, "'Honey, in your wildest dreams did you ever think I'd be speaking at Equal Justice Works?' She replied, "Dear, I'm sorry to tell you this, but you're not in my wildest dreams.'"

Koh spoke at length about why it does not make sense to take a job at a big law firm after school simply to pay off loans. He said that taking a job for the money is the same as taking a job for no reason at all. "People who say they're taking a firm job to pay off loans are admitting they don't know why they came to law school," he said.

Koh told several stories about his family, and how they had influenced his career choices. At his law school graduation, a distinguished professor came over to congratulate Koh on his "accomplishments" — graduating in the top 10% of his class, becoming a member of a well-known legal fraternity, etc. When the professor walked away, his sister told him, "Harold, you haven't accomplished anything." He asked what she meant, because he had all these awards, which were all accomplishments to him. She said that lots of people who have never gotten degrees or awards have accomplished more in a day through real work than he ever accomplished at law school. Another time, when he told his mother about the offer he got to work at a big law firm, she congratulated him and then proceeded to screw up the name of the firm. She asked who his clients would be, and he told her (mostly big corporations). "Then she told me something I'll never forget," Koh said. "She said, 'You have the most privilege. Shouldn't you be working to serve those with the least privilege?'" Finally, Koh told a story about his young son's view of his father's work. One night on television the son saw his dad speaking about a case. The caption read, "Harold Koh, human rights lawyer." The son asked his dad what a human rights lawyer was. Koh replied, "A human rights lawyer is an international lawyer who got mad." Later, the son presented a paper in class about the person he loves the most: his father. He gave two reasons, Koh said. "The first reason is that my dad loves beer." The second reason was that his dad works for people who don't have much, people who are told by others that they can't do the things they want to do. "My dad is a human rights lawyer."

Koh wrapped up his talk by saying that public interest lawyers can do lot of good, even if they aren't perfect people themselves. He said that principle reminded him of someone—Michael Jackson. Koh ended by quoting Jackson, to huge applause: "If you want to make the world a better place, you gotta look in the mirror and make a change. And, don't stop till you get enough."

Death Costs More

2009-09-28T07:40:00.005-04:00

The New York Times has an excellent editorial this morning, "High Cost of Death Row." Most people believe that killing someone is cheaper than putting them in prison for life but solitary confinement, execution chambers, and lengthy capital trials — to say nothing of the absolutely necessary federal habeas corpus proceedings — all result in a much higher cost. As the Times correctly informs us, "Money spent on death rows could be spent on police officers, courts, public defenders, legal service agencies and prison cells."

Cost is not the most morally persuasive argument but when you consider the other ways in which we could spend the money, the right thing to do is quite clear.

Habañero

2009-09-27T10:07:00.008-04:00

At a chili cook-off the other day, a friend dared me to eat half a habañero pepper in exchange for $20. I ate half, and it tasted pretty good, so I ate the other half, too, just for kicks. After about a minute and a half, I started to feel the heat. Drank about half a beer, which seemed to help. About five minutes in, the worst of the heat set in, and I sweated it. After half an hour, I ate a roll of antacid tablets, mostly as a precaution against further damage, because friends were telling me of dangerous times ahead. I'm happy to report that I'm in fine health. And for another $20, I'd probably do it again.

This guy wouldn't.

Live-blogging David Baugh, Virginia civil rights attorney

2009-09-25T08:56:00.030-04:00

8:56 a.m.—This morning the William & Mary Law Library is hosting David Baugh, a civil rights attorney and the Capital Defender in Richmond, Va. He has lectured the last two years, and is always a dynamic speaker. He'll be discussing "The Bill of Rights and the Roberts Court." Should be an excellent hour. There are about 50 people in attendance at the law school this morning, many of them first-year law students, public policy graduate students and many from the Williamsburg community. A fine turnout for a Friday morning.

9:01 a.m.—Jim Heller, head librarian, has introduced David Baugh, the son of a Tuskegee Airman. "I don't like the Supreme Court," Baugh says.

9:02 a.m.—Baugh says the justices should not care about the outcome of a case. "They're there to protect the rules, and the rules are in our Constitution. The Supreme Court does not understand that."

9:05 a.m.—Baugh is often introduced as a civil rights scholar. "I'm not, I'm a trial lawyer. I'm a thug. I go to court and I beat people up." Baugh is plugging Judge A. Leon Higginbotham's open letter to Clarence Thomas, which I haven't read. Here's the cite: An open letter to Justice Clarence Thomas from a federal judicial colleague, 140 U. Penn. L. Rev. 1005-1028 (1992).

9:08 a.m.—Most law schools don't teach the Constitution. We're going to talk about why we have it. "Thomas Jefferson was one of those guys who really was a genius. He knew that the key to life was happiness. Yeah, they screwed slaves, but he knew what he was talking about." Another plug: download The Universal Declaration of Human Rights, adopted by the United Nations in 1948.

9:10 a.m.—"Government always will be in opposition to freedom." Two opposing forces: one is freedom. No issue is taboo. "What do you think about the Man-Boy Society?" (He's talking about NAMBLA here.) "We ought to talk about it."

Baugh is talking about his former client, a grand dragon of the KKK. "If any one of you believe there's a superior race, talk to a Klansman. He was dumb as a rock."

9:12 a.m.—On one side is freedom, and on the other side is order. "Those forces are in opposition because the greater the freedom, the less order. We have to have order, but we have to have freedom. The opponents of freedom will always be the government, the majority, and you when you're scared." So we have to maintain a system of laws that recognizes freedom while keeping order in place. It will always be a sliding scale.

9:15 a.m.—We're the only government in the world that swears allegiance to a philosophy, to a document. That's brilliant. Others swear an allegiance to a king or queen. He's talking now about freedom of religion, "which is a brilliant idea." The only way to allow everyone to practice the kind of religion they want is to have no laws establishing religion. "That's kung fu crap. That's like, 'The only way for everyone to have religion is to leave religion alone, Grasshopper." (Big laughs from the crowd.)

9:18 a.m.—Talking about harm to others and the First Amendment. Up until 10 years ago, consensual sex between married adults was illegal in this state. How does gay people getting married harm others? "It's going to destroy the American family. Don't look now but heterosexuality and monogamy destroyed the American family."

9:25 a.m.—On defending clients: every time someone walks, the rules get stronger. Most people view the Constitution and the Bill of Rights as an impediment to convicting guilty people. Only the ACLU and criminal defense attorneys protect the rules.

9:26 a.m.—"For every freedom, there is a corresponding responsibility. If I want freedom of speech, I have to tolerate the rights of other dumb son-of-a-bitches to talk, too."

9:28 a.m.—On to the KKK case. (I should mention here that Mr. Baugh is black. He represented a KKK Grand Dragon who burned a cross.) How to tell a Klansman from anyone else: it's not a cross burning, it's a "cross illumination."

9:29 a.m.—"When it comes to constitutional issues, there are only two sides. There's the government on one side, and everybody else on the other side." The reason Baugh took the case is because he and the Klansman were on the same side.

9:32 a.m.—"Human beings are basically good." Baugh says he's never defended someone he thought was bad. Even bigots aren't bad people, he says. They're good people who pay their bills and love their kids but who have a distorted sense of values.

9:34 a.m.—Baugh on his mother, who he says, "should have been a Nazi," for her stances on pornography. She didn't want him defending someone accused of having pornography, and he told her he believed it was important to protect that person's freedom of speech. "I've been called a bastard before but never by the person who really knows."

9:35 a.m.—A few links to articles about David Baugh and his former client, Barry Elton Black, the Klansman: http://www.abanet.org/irr/hr/fall00/oneil.html and http://www.nytimes.com/1998/11/20/us/klan-case-transcends-black-vs-white.html.

9:38 a.m.—On human rights: should we support countries who oppress their women? Should we support countries that discriminate against minorities? How about the burqa issue? Baugh did the bombing case at the U.S. Embassy in Nairobi. He represented an al-Qaida member who blew up 200 people. He started researching and realized he didn't know anything about Islam. A friend recommended him a book called, "Teach Yourself Islam." He highly recommends it, even though it's the equivalent of "Islam for Dummies." The book is about 250 pages (224, to be exact).

9:40 a.m.—On suicide bombing: Suicide is a sin in Islam, but giving your life for the cause of war is not. That's how Islamic extremists draw the distinction. It's easier to extend rights to other people if you understand those people and their religion.

9:42 a.m.—On rights in America: We rank about 33rd in infant mortality. "I think it's obscene that we have bombers that cost $2 billion and we have dying children." Health care is a right.

9:45 a.m.—"You have a duty, not just to get educated, but to understand other cultures, other people. Every time you get a chance to study another culture, take it."

On Tim Kaine (the current governor of Virginia): He came from Harvard and moved to Richmond. The most segregated place in America is a church on Sunday morning. Well Tim Kaine went to a black church and joined the choir.

9:46 a.m.—"For those of you who are law students, if you know why you're doing it, it's the greatest job in the world." That's the end of the lecture. On to questions.

9:47 a.m.—"Should we have voluntary slavery? Other than prostitution and marriage."

9:58 a.m.—A little experiment. Baugh stands in the middle of the room and says, "I think Dick Cheney is an evil bastard who should die and rot in hell." There. He says in most countries, a person couldn't do that without the threat of being imprisoned. But not a single person in this room, he says, believes that saying that deserves a criminal penalty. "And that's what gives me hope, hope for our Constitution and for our country."

Maybe the best line of the day. Baugh's final point is about having courage. "It's not enough to be smart, and you all are smart. You have to have kahones, too. Oh wait, excuse me. You have to have ovarian fortitude."

On that note, Baugh heads to the public policy class to discuss upcoming Supreme Court cases.

From the Execution Chamber Back to the Courtroom

2009-09-20T20:05:00.003-04:00

Romell Broom's lawyers will return to court tomorrow, just days removed from the botched execution of their client. They will argue that trying to execute Broom a second time would constitute cruel and unusual punishment, in violation of his Eighth Amendment rights, as well as a violation of his 14th Amendment due process rights. Lawyers for the state of Ohio will likely argue that because the three-drug lethal injection cocktail never reached Broom's veins, that a second go-around is just fine.

It's worth taking a look at some pertinent language from the Supreme Court's 2008 ruling in Baze v. Rees, when the Court upheld Kentucky's lethal injection procedure as constitutional. In his plurality opinion, Chief Justice John Roberts hinted at where the Court might say, "Enough is enough":

Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of “objectively intolerable risk of harm” that qualifies as cruel and unusual. In Louisiana ex rel. Francis v. Resweber, a plurality of the Court upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt. The principal opinion noted that “[a]ccidents happen for which no man is to blame,” and concluded that such “an accident, with no suggestion of malevolence,” did not give rise to an Eighth Amendment violation.
As Justice Frankfurter noted in a separate opinion based on the Due Process Clause, however, “a hypothetical situation” involving “a series of abortive attempts at electrocution” would present a different case. In terms of our present Eighth Amendment analysis, such a situation—unlike an “innocent misadventure”—would demonstrate an “objectively intolerable risk of harm” that officials may not ignore. In other words, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a “substantial risk of serious harm.”

Roberts suggests in Baze that multiple execution attempts may indeed prove too much for the Constitution to bear. Let's see if the lower courts follow that logic. I certainly hope so.

A Re-Execution in Ohio

2009-09-17T09:03:00.004-04:00

To legally kill death row inmates, most states use a three-drug lethal injection protocol. One drug is designed to anesthetize the inmate (sodium thiopental), one drug paralyzes him and stops his breathing (pancuronium bromide), and the third drug stops his beating heart (potassium chloride). Executions without an anesthetic drug would be unbelievably painful, and would almost certainly violate the Eighth Amendment's ban on cruel and unusual punishment. Executions would simply fail without the drug that kills. The paralytic drug, however, serves no humane purpose. In fact, quite the opposite: when the anesthetic drug doesn't work, the inmate is paralyzed but feels incredible pain when the death drug arrives. It's a shocking thing our government does, behind closed doors. The ACLU has of course challenged the use of this paralytic drug in federal court, after several botched executions in California, the state with the nation's most populous death row. This legal challenge helped impose California's current 3 1/2-year moratorium on executions. More California death row inmates have committed suicide than have been executed since 1976.

But the paralytic drug isn't the only problem with lethal injection. As many medical personnel know, some people have difficult veins to stick. The same holds true for death row inmates, including Romell Broom of Ohio. In an appalling story that should give us all pause, executioners in the state of Ohio this week gave up on their attempt to execute Broom, a convicted rapist and killer, when they could not find a suitable vein to inject the drugs. Broom, to his credit, squeezed his fist (and sweated bullets) in an attempt to assist his killers.

Broom's lawyers are headed to court. Now Ohio and likely some federal courts will have the sick task of coming up with a rationale for the state to execute Broom a second time, without violating the Eighth Amendment. The state could, of course, simply commute his sentence to life imprisonment without chance of parole, but that would be too simple (and heck, it might encourage other death row inmates to make their own veins difficult to stick). No, the state will undoubtedly argue that executing the same person twice does not constitute cruel and unusual punishment, and the Ohio courts will without question rubber-stamp that logic. But should the case reach the federal courts, Ohio's attorney general may have a tougher time convincing a judge that the state's lethal injection protocol, which failed to execute Broom, is constitutional after all. It's a case worth watching.

UPDATE, 9/19:
A federal judge has stepped into Romell Broom's case, giving him and his lawyers a 10-day reprieve. The temporary restraining order prevents Ohio from executing Broom next week, as the state had planned. Instead, Broom will testify in court Monday about his botched execution. This is fantastic news.

In Defense of Vegetarianism

2009-09-13T10:22:00.004-04:00

A little more than a year ago I stopped eating meat. It was a goal I had held for several years, based primarily on the health benefits of not eating red meat in particular, but one I found difficult to accomplish. Ironically enough, I had not achieved my goal because I did not know how to sustain a healthy vegetarian diet — basically, I didn't know how to cook good food. Though it seems counterintuitive, many vegetarians live on a junk food diet, eating primarily cheese and carbs and gaining weight along the way. I didn't want to go that route.

The past year has blessed me with the opportunity to spend time with a great vegetarian cook and live a summer in the Bay Area, home to an incredible array of farmer's markets. I am now a passable cook, and will not drift into "junk vegetarianism" anytime soon. But only in the last couple of months have I acquired a real rationale for the way I eat. People become vegetarian for a multitude of reasons: health, spirituality, sustainability, as protest against animal cruelty, even economic populism. Most often, vegetarians I've met combine these rationales or start with one and gravitate toward another. When the logic for one reason falters, as it almost inevitably does, they argue another point and most often win the argument with meat-eaters.

I mention these rationales because now that I've learned how to sustain myself on a vegetarian diet, I find that the most difficult part of being a vegetarian is explaining the decision to carnivores. Most do not appear threatened by vegetarians — they're not converting anytime soon — but they want to push them anyway, see why anyone who otherwise appears smart would be dumb enough to give up eating meat.

Finding the real reason for my vegetarianism has taken quite a while. Plenty of people live healthy lives while eating meat regularly. Moreover, because the animals we eat subsist on grains and vegetables, the same vitamins and minerals found in meat exist in most vegetarian diets. (I'm leaving veganism out of this discussion because of its sheer rarity. I learned this summer that the only vegan I knew has dropped the lifestyle.) If it's the saturated fat in meat that you're trying to avoid, then you'd have to drop a lot more than just meat. Some oils, cheese, yogurt and other flavorful sources of protein contain plenty of saturated fat. Moreover, saturated fat may not be as evil as we once thought, anyway. There are plenty of health benefits from becoming vegetarian but at least in my experience, they tend to come not from the vegetarian diet itself, but from buying fresh ingredients and learning how to cook.

Ever since I read Plato's Allegory of the Cave and Friedrich Nietzsche's Twilight of the Idols, spirituality has taken a backseat to other priorities, to put it mildly. Spirituality, thus, is not my rationale. I still get plenty of satisfaction from eating mouth-watering meals, but I will not claim that it puts me in touch with a higher power.

Sustainability is a powerful argument for vegetarianism, and has gained much attention with the rise of Michael Pollan, the UC-Berkeley journalism professor and author of The Omnivore's Dilemma, In Defense of Food, and numerous op-eds in the New York Times. The argument as I understand it goes something like this: to produce one pound of beef, a cow such as a cow must consume 16 pounds of grain. That's a lot of wasted energy. Wouldn't we be better off if we just grew more fruit, vegetables, and grain instead of trying to eat all those inefficient cows? Moreover, and here's where Pollan has really devoted his time, the fossil fuels required to move all this meat across the country is incredibly damaging to the environment. We would be much better off to grow and buy all our food locally. But as you can see, Pollan's argument (at least this last one) applies with equal force to all kinds of food: California strawberries consumed in Virginia, Iowa corn consumed in China, Wisconsin cheese consumed in Florida. This system exists (and here's where the economic populism argument comes into play) because we continue to subsidize the agribusiness industry and its factory farmers with billions of taxpayer dollars each year. Even if we all stopped eating meat tomorrow, our food distribution system would still place an unconscionable burden on the environment. We need to do much more than become vegetarian. We need buy local food and convince our farmers, grocers and senators to change the way they think about feeding America and the world.

And so I find myself back in a place I hadn't imagined, eating a vegetarian diet primarily because of the way we treat our animals. This summer I listened to Peter Singer's powerful book (on CD), The Way We Eat: Why Our Food Choices Matter. He illustrates, in an unabashedly graphic way, the repulsive ways that we raise and kill chickens, just to collect their eggs. We raise them in cages and breed them to lose their wings so that they pose less of a "flight risk." Then to try to kill them, we hand-dip them in scalding water. The chickens, if you can still call them that, live pathetic lives yet before dying, feel intense amounts of pain. It's enough for me to make sure that every carton of eggs I buy comes from "cage-free" hens. And having grown up in Iowa among hog confinements, I know that the way we treat pigs and cows leaves much to be desired. I will never believe that humans have a right to use the rest of Earth's creatures as they wish. It's just another example of where the Bible and I part ways.

And yet, even the animal cruelty brand of vegetarianism leaves a potential gap: what about those farmers who do everything they can to treat their animals well? Moreover, what about the farmers who, in addition to humane farming, sell their meat locally? And here's where my vegetarianism ends. Yesterday I bought a pound of ground beef from a local farmer who grass-feeds her cows. It may not be the most efficient pound of food I eat this month, but I can feel good about supporting her, much more so than I could about buying a bunch of bananas from Ecuador, produced with the labor of exploited workers and shipped thousands of inefficient miles to my grocery store.

Thinking about food, it seems, is a life-long endeavor, filled with complexities. But I believe I've found an argument that can withstand the scrutiny of non-discriminating carnivores, who eat whatever meat is put on their plates. And it might even hold up against other vegetarians, too.

Back to School

2009-09-10T20:33:00.001-04:00

Apparently I still have some readers out there, so here we go, for one more year. I just finished the last class of my third week, and I can now say with some authority that the third year of law school is by far the best. The old cliché, once again is: the first year they scare you to death, the second year they work you to death, and the third year they bore you to death. But you can't get too bored if you take great classes or solid professors, and somehow I've managed to pull that off. This semester I'm branching out from my usual comfort zone of criminal law. My classes include Business Associations, a popular topic on the Bar exam, and three others dealing with highly relevant topics: Health Law & Policy (tonight we did a comparative analysis of the health care plans in Congress); Media, Technology & the Courts; and an Election Law class studying Bush v. Gore and other Supreme Court gems. I'm also doing a fantastic externship (I think that means "internship for credit," in law school jargon) with a federal public defender's office.

I returned from my summer in California—not to mention a 4,600-mile road trip—happy, relaxed, and refreshed. I learned an incredible amount this summer, but unfortunately I can't blog about it. For anyone who's interested, let me know, and I'll send the essay I wrote to fulfill my summer funding requirement.

It seems impossible that my fellow 3Ls and I have ascended to the last tier of law school, just two sets of exams away from graduation. An energetic group of 1Ls has filled the W&M Law Library, brandishing their highlighters and looking to us for advice. We start the year with a new, terrific dean, Dave Douglas, whom many in my class had (and loved) as a Con Law professor during first year. Most of us 3Ls are looking for jobs, or in the case of the firm crowd, waiting to hear about offers. Many of us, including me, applied for judicial clerkships over the summer. Clerkships typically last a year, and if you get an offer from a judge, you're basically obligated to take it. After two-plus years of spending time with my classmates, I find it fascinating to see who goes where. People will scatter all over the country and the world. Many will work at firms, some in the federal government, others at prosecutor's and public defender's offices. A few people won't even take the Bar, and may go back for more graduate degrees. One of my classmates learned to brew beer over the summer while living at his parents' house. More power to him. (I'm still waiting to taste the beer.)

This year should afford me more time to write. Before I close this entry, I do want to mention a particularly important case that the Supreme Court heard in a special session yesterday, and which we've discussed in my Media class. It's called Citizens United v. Federal Election Commission. Briefly, in 2007, a conservative group funded at least partially by corporations wanted to show a 90-minute documentary criticizing Hillary Clinton (to put it lightly). The FEC ruled that because the group was funded by corporations, and because the documentary mounted an attack on a political candidate, broadcasting the documentary would violate a 2002 federal campaign finance law — the McCain-Feingold Act. The Supreme Court upheld the constitutionality of that Act back in 2003, though in recent years it has stripped a few provisions away from McCain-Feingold. But this time, the Supreme Court wants to decide whether restricting the broadcast violated the free speech rights of Citizens United, and the corporations that fund it. The case pits the interests of free speech advocates, from the Swift Boaters to the ACLU, against campaign finance advocates, from Bill Moyers to John McCain.

Normally I'm a big free-speech guy, but I do not believe that corporations should have the same First Amendment rights as individuals. Although McCain-Feingold is a flawed law, I agree that we should be able to regulate how much money corporations can pour into political campaigns. Unfortunately, we likely have a Supreme Court with five members who believe that corporations do have the same free-speech rights as you and me. A decision in the case will probably come later this fall.

It's great to be back in the Burg.

Execution of an Innocent Man

2009-09-01T15:51:00.004-04:00

No, this post isn't about Troy Davis, the Georgia death row inmate I've written about many times before. This is about Cameron Todd Willingham, a Texas man who tried desperately to save his children in an accidental house fire back in 1991. On the night of the incident, firefighters had to physically restrain the 23-year-old Willingham with handcuffs to keep from going into the house to save his kids, as Bob Herbert writes in today's NY Times. Later, a state fire marshal concocted a theory that Willingham had started the fire that killed his young children. The local district attorney believed the fire marshal, some neighbors said that Willingham had acted "strange," a mentally unstable and drug-addicted jailhouse snitch testified against Willingham, and voila! Texas put an innocent man to death. Scientific research, commissioned by the state of Texas, has demonstrated unquestionably that the fire marshal had no basis on which to rule the fire an arson.

Craig Grann's phenomenal, thoroughly researched article in the current New Yorker tells the painful story of Willingham, who maintained his innocence until his final days.

For decades, opponents of the death penalty have pondered when this day would come — when a state would admit that it had sanctioned the killing of an innocent person. Today's the day.

I'll repeat the obvious question: Why on Earth do we have a death penalty?

UPDATE: Barry Scheck, co-director of The Innocence Project, has an excellent op-ed discussing Willingham's case and the array of problems with forensic science. Just this term in the Supreme Court, none other than Justice Antonin Scalia—someone not typically a fan of criminal defendants—described how unreliable these "sciences" can be.

Return of the blog?

2009-07-25T13:53:00.003-04:00

For the last three months — since the exam period of spring semester, really — I have stopped blogging. There are three big reasons for this.

First, I'm living in Berkeley, California, this summer, and I have certainly not made finding time to sit at my computer and write a big priority. In the two minutes I have worked on this post, I have already thought about the other things I could (and probably should) be doing: mailing clerkship applications, walking to the Berkeley Farmer's Market, generally being outside.

Second, the internet generally and blogging particularly makes for less personal contact. My friend and former boss, Jake, first brought up this point to me more than a year ago. His point has stuck in my mind, and I believe I agree with him more now than I did then. I sympathize with the plight of people like Dorothy and Andrew Yankanich, members of the WWII generation who can no longer walk across the street to drop their handwritten letters in a blue "snail shell." The internet has done many positive things for our culture, made the world smaller and democratized information, but it has not, on the whole, made our connections more personal. Not yet. I say "not yet" because just this week, I video-chatted with my older brother, who lives approximately 2,000 miles away. We hadn't seen each other's faces in a couple of months. Video chat is great.

Third, the searchability of blogs has created problems for aspiring defense lawyers. Members of the defense community simply cannot blog about work without getting themselves, or much more importantly, their clients, in trouble. Because I hope very soon to be a defense attorney, I cannot blog about what I do. I have wanted to say many things about the work I see and do every day, but I can't.

So, as I prepare for the end of summer and a return to my third year of law school, I continue to think about the usefulness of personal blogs. I'll likely continue this one, in some form. But I would love some feedback about how to make it great.

In the meantime, check out this great podcast on an experiment at Slate: which is more useful, newspapers or the Web? (Newspapers, of course.)

The root causes of Somali piracy

2009-04-21T08:54:00.005-04:00

Another group presented in my Post-Conflict Justice class yesterday, this time on Somalia. The country has led a lot of headlines lately, primarily because pirates off the coast captured an American ship and took Capt. Richard Phillips hostage. Now that Phillips has returned home and everyone is sure to stop paying attention, the Pentagon has announced that it plans aggressive military action against the pirates. We might as well declare war on sneezing in spring.

Somali piracy is merely a symptom of the massive problems Somalia faces. Despite sharing a common language and ethnicity, the country's rival clans have warred with each other for decades, a trend perpetuated by the western European countries that colonized the Horn of Africa. This didn't get much attention until the 1990s, when the U.S. and U.N. intervened, with good intentions and horrific results. Now, there is anarchy, and a clan formerly known as the Islamic Courts Union, now Al-Shabaab, has moved in to exploit it and place the entire country under Sharia law.

The people of Somalia had not been fed, and we gave them guns. Then other countries, recognizing Somalia's weakness, stole their fish and used their coastline as a toxic waste dump. What, honestly, did we expect? Before we start attacking Somalians again, we would do well to learn from our mistakes. We don't need another Black Hawk Down. Piracy is wrong, and stopping it would be nice, but it won't happen until we address the real causes. These pirates are viewed as heroes in Somalia because they're the one group who can put food on the table. If we go after them now, history will repeat itself and no one will come out ahead.

Think of Haiti

2009-04-17T11:33:00.003-04:00

Two papers are calling my name on this gorgeous Friday in Virginia, but I have to mention Haiti. On Monday a classmate and I gave a joint presentation about the country in our Post-Conflict Justice/Rule of Law class. We each spent at least 10 or 12 hours researching the country, which is full of great stories — being the world's #1 sugar producer and home of the world's only successful slave rebellion — and failures, such as a history of overthrown leaders and an impoverished people with little hope for the future.

This week Secretary of State Hillary Clinton visited Haiti. Now she's reminding the world that as the economic crisis hits us all, it hits the poor the hardest. Nowhere in the western hemisphere is there a place as poor as Haiti. They do not deserve the poverty, did not bring it on themselves. Their poverty is the result of a series of leaders, notably Papa Doc and Baby Doc Duvalier, who have taken advantage of a largely illiterate public and embezzled millions at the people's expense. The country's institutions remain in shambles, more than two decades after Baby Doc was exiled.

As so many people continue to feel sorry for themselves here in the United States — some rightfully so, of course — we would still do well to look southward, at a nation, Haiti, that desperately needs our help.

Vermont becomes #4; Watch D.C. next

2009-04-07T14:33:00.005-04:00

The Vermont Legislature legalized same-sex marriages today, overriding Gov. Jim Douglas's veto of the bill by the slimmest of margins in the Vermont House of Representatives, 100-49. The bill required 100 votes to pass; a key Democrat switched his vote after voting against the bill last week.

In 2000, Vermont became the first state to legalize civil unions (as the NY Times story notes, New Jersey and New Hampshire later did the same). Gay rights advocates in Maine and Rhode Island have pushed for the legalization of same-sex marriages, arguing that civil unions do not go far enough, and make gay couples appear unequal.

I agree. This post discusses the differences between civil unions and marriage, and there are many. Because the federal government does not recognize civil unions, such couples cannot file taxes jointly or enjoy benefits conferred to married couples. In a 1997 letter responding to a former Illinois representative, Henry Hyde, the General Accounting Office identified 1,049 federal laws "in which marital status is a factor." The office divided these into 13 categories:

Social Security and Related Programs, Housing, and Food Stamps
Veterans' Benefits
Taxation
Federal Civilian and Military Service Benefits
Employment Benefits and Related Laws
Immigration, Naturalization, and Aliens
Indians
Trade, Commerce, and Intellectual Property
Financial Disclosure and Conflict of Interest
Crimes and Family Violence
Loans, Guarantees, and Payments in Agriculture
Federal Natural Resources and Related Laws
Miscellaneous Laws

Numbers three (taxation) and four (federal and military benefits) contain 179 and 270 provisions, respectively. Benefits available to married couples include deductions of estate taxes, gifts of property, government-assisted relocations, as well as health benefits, life insurance benefits, and retirement annuities for surviving spouses. None of these benefits are available to couples in civil unions. Federal employees with a sick spouse are also entitled to unpaid leave, a benefit not conferred on single persons, or persons in a civil union.

Civil unions will not last. Within five or ten years, most of the blue states — and some red ones, too — will have legalized gay marriage either by legislative fiat (Vermont) or through the courts (Massachusetts, Connecticut, and Iowa). This is a very good thing.

In what may become the most publicized battle for same-sex marriage, the District of Columbia City Council also voted today, 12–0, for a bill to allow recognition of gay marriages. Mayor Adrian Fenty supports gay marriage, but for the bill to become D.C. law, Congress must give its approval.

The California Supreme Court is still weighing its decision whether to uphold Proposition 8, a constitutional amendment which banned gay marriage in the nation's most populous state. Also watch Minnesota to see if it's the next state in the Midwest to legalize same-sex marriage.

What a difference Iowa court has made

2009-04-05T09:55:00.002-04:00

A UCLA study says that Iowa's decision to legalize same-sex marriage will result in a net economic gain of $5.3 million, today's Des Moines Register reports:

- Income tax: $1,254,000
- Inheritance tax: -$1,391,000 (Iowa would lose money because of a marital deduction for state inheritance taxes)
- Sales tax: $2,668,000 (annually for the first three years)
- Public assistance savings: $2,786,000

TOTAL: $5,317,000 net gain

Source: The Williams Institute at the University of California, Los Angeles

This morning I wrote this letter to my old newspaper, the West Branch Times, highlighting the difficulties that citizens have had in obtaining the rights granted to them by constitutions:

Oh, what a difference a court can make.

In January 1857, 21 Republicans and 15 Democrats met in Iowa City to draft a new constitution for the state of Iowa, focusing primarily on banking and the rights of African-American men. When Iowans ratified the document, they agreed to allow banking, but flatly denied the vote to black men. Iowa women would not get the full right to vote for another 63 years, with the passage of the 19th Amendment to the U.S. Constitution.

Despite this obvious discrimination in the original Iowa Constitution, the drafters included an important provision as Article 1, Section 6: "All laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens." With the 1857 ratification, Iowa's version of the equal protection clause passed 11 years before the 14th Amendment to the U.S. Constitution, which granted equal protection of the laws to all U.S. citizens — at least in theory.

But as so frequently happens, rights granted to people in the Constitution did not become reality until a court said so. Not until 1954 did the U.S. Supreme Court decide that the 14th Amendment meant that black schoolchildren could attend the same public schools as white schoolchildren. Only in 1967 did that same Court hold that equal protection meant blacks and whites could marry, striking down a heartless Virginia law. And not until 2009 did the magnificent Iowa Supreme Court recognize that same-sex couples could enjoy a right, marriage, that most certainly belongs equally to all citizens.

Because the Iowa Supreme Court can recognize rights in the Iowa Constitution that the U.S. Supreme Court has not yet found in the 14th Amendment, same-sex couples in 47 states now look to Iowa with envy. Since the decision last Friday, I have worn my black and gold wardrobe with pride. I come from a place that recognizes rights, "even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice."

As is so often the case, today I am proud to be an Iowan.

Same-sex marriage will be legal in Iowa!

2009-04-03T10:48:00.005-04:00

Citing Marbury v. Madison, McCulloch v. Maryland, Lawrence v. Texas, Dred Scott v. Sanford, and Brown v. Board of Education, the Iowa Supreme Court today ruled that the state statute defining marriage as between a man and a woman is unconstitutional under the Iowa Constitution. Beginning in three weeks, same-sex couples will be able to marry in Iowa. (Read the full, awesome, unanimous opinion here. No. 07–1499.)

I'm going to quote some of the best excerpts:

In fulfilling this mandate under the Iowa Constitution, we look to the past and to precedent. We look backwards, not because citizens’ rights are constrained to those previously recognized, but because historical constitutional principles provide the framework to define our future as we confront the challenges of today.

Our responsibility, however, is to protect constitutional rights of individuals from legislative enactments that have denied those rights, even when the rights have not yet been broadly accepted, were at one time unimagined, or challenge a deeply ingrained practice or law viewed to be impervious to the passage of time. The framers of the Iowa Constitution knew, as did the drafters of the United States Constitution, that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” and as our constitution “endures, persons in every generation can invoke its principles in their own search for greater freedom” and equality. ...

Finally, it should be recognized that the constitution belongs to the people, not the government or even the judicial branch of government.

p. 15.

The primary constitutional principle at the heart of this case is the doctrine of equal protection. ...

The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change. As Justice Oliver Wendell Holmes poignantly said, “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” ...

So, today, this court again faces an important issue that hinges on our definition of equal protection. This issue comes to us with the same importance as our landmark cases of the past. The same-sex-marriage debate waged in this case is part of a strong national dialogue5 centered on a fundamental, deep-seated, traditional institution that has excluded, by state action, a particular class of Iowans. This class of people asks a simple and direct question: How can a state premised on the constitutional principle of equal protection justify exclusion of a class of Iowans from civil marriage?

pp. 16-18.

Therefore, with respect to the subject and purposes of Iowa’s marriage laws, we find that the plaintiffs are similarly situated compared to heterosexual persons. Plaintiffs are in committed and loving relationships, many raising families, just like heterosexual couples. Moreover, official recognition of their status provides an institutional basis for defining their fundamental relational rights and responsibilities, just as it does for heterosexual couples. Society benefits, for example, from providing samesex couples a stable framework within which to raise their children and the power to make health care and end-of-life decisions for loved ones, just as it does when that framework is provided for opposite-sex couples.

In short, for purposes of Iowa’s marriage laws, which are designed to bring a sense of order to the legal relationships of committed couples and their families in myriad ways, plaintiffs are similarly situated in every important respect, but for their sexual orientation. As indicated above, this distinction cannot defeat the application of equal protection analysis through the application of the similarly situated concept because, under this circular approach, all distinctions would evade equal protection review. Therefore, with respect to the government’s purpose of “providing an institutional basis for defining the fundamental relational rights and responsibilities of persons,” same–sex couples are similarly situated to opposite–sex couples.

pp. 28-29.

The case was decided on state constitutional grounds, so it is impossible for Polk County to challenge the ruling in the U.S. Supreme Court. Short of a state constitutional amendment, which simply can't be done in three weeks, this ruling will remain the law in Iowa. Same-sex couples (apparently there are 5,800 of them in Iowa) will start marrying.

The County advanced a number of arguments in support of its claim that the state statute should be upheld: maintaining traditional marriage, promotion of optimal environment to raise children, promotion of procreation, promoting stability in opposite-sex relationships, and conservation of resources. First, the court found no governmental interest in maintaining traditional marriage. Second, it found that same-sex parents fare just as well as opposite sex ones in raising children. It also found that the exclusion of same-sex marriages did not promote procreation or stability in opposite-sex relationships. Finally, it found that the state's interest in conserving resources was not substantially improved by keeping same-sex marriages illegal.

The court then addressed "the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage." It found that even though a religious objection is not sufficient to uphold the statute, even some religions support same-sex marriage:

This contrast of opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa’s same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them.

p. 65. Citing the separation of church and state, the court makes clear that this case must be decided on equal protection grounds, and not on free exercise of religion grounds.

Finally, perhaps the best sentence of the whole opinion, on p. 69: "All justices concur."

Today's a proud day to be an Iowan.

Spring and organic vegetable gardens

2009-03-22T08:29:00.003-04:00

Six weeks of classes remain in my second year of law school. Tomorrow we begin selecting classes for fall of our third year, so today I grapple with whether to take tedious courses that may help me pass for the Bar exam, or invigorating courses and clinics that will help me stay motivated to finish law school and become a lawyer. Both goals are important, and my fall schedule will probably reflect a little of each one.

To mark the first days of spring, the daffodils bloom here in Williamsburg, even as frost continues to cover the grass each morning. I ran the annual Ali's Run 5K yesterday morning in crisp, cool air.

A hundred and eighty miles up the road in Washington, the president continues to grapple with the financial crisis. I'm as appalled by anyone by the AIG bonus fiasco, and the capitalist money-grubbing it stands for. President Obama certainly has his hands full. But this week, the First Lady has identified another critical cultural issue that deserves at least as much attention — food.

Michelle Obama has begun work on an organic vegetable garden on the South Lawn of the White House, citing several goals. The garden is meant to provide healthy food for her daughters, feed Washington's poor people, and to please an eager kitchen staff longing for fresh ingredients. More importantly, however, the garden addresses a national issue: our long overdue need to think about what we eat.

Michael Pollan, author of The Omnivore's Dilemma and a longtime advocate for changing the nation's food policies, first argued for a White House vegetable garden back in 1991. Instead of worshipping our chemically treated, unnatural lawns, he said, we should either let our yards return to their natural state, such as wetlands or meadows, or turn them into gardens and orchards. This helps the environment but just as important, it also helps our stomachs. We are a nation of obese people, and although we continue to experiment with diet and exercise fads, even cutting back on fat and red meat, the problem continues to get worse, not better.

Michelle Obama has put the focus back on the larger problem: we eat too much processed food. The prime culprits are partially hydrogenated soybean oil, a dangerous preservative found in everything from Oreos to peanut butter, and high fructose corn syrup, the primary sweetener in Coke and Pepsi. We can put the blame on at least four groups of people for getting us into the processed food diet. First, companies like Archer Daniels Midland (sorry, Cedar Rapids) have successfully lobbied the government for huge subsidies to prop up high fructose corn syrup production. They've also engaged in a shameless ad campaign. At one point, our consumption of high fructose corn syrup even passed our sugar consumption, though that trend has recently started to go the other direction. But ADM could only be successful with help from the second group: members of Congress and the USDA, which have only exacerbated the problem by granting the subsidies and failing to enact helpful regulations. Third, we can blame the food companies that make highly processed foods, but even they are starting to turn things around (in Canada, too). Some local governments and hospitals are doing their part as well. Finally, though, we can blame ourselves for buying and eating the junk. It's cheap and it's easy, but it only makes us fat.

The good news is that the solution is easy. We can do what millions of Americans do already: grow much of our own food, go to the grocery store more often for fresh ingredients, and toss all the processed foods from our cupboards. Thanks to Michelle Obama for drawing attention to food. That reminds me, I'm hungry.

Live-blog: W&M Law ACLU hosts defense attorney David Baugh

2009-03-04T12:58:00.021-05:00

Today I'm live-blogging from Room 133 at the Marshall-Wythe School of Law. Our ACLU chapter is hosting David Baugh. Baugh recently left private practice to serve as the Richmond Capital Defender, working for the Virginia Indigent Defense Commission. While he was in private practice he often served as a cooperating attorney for the ACLU of Virginia. His most noteworthy case with the ACLU was when he represented the Imperial Wizard of the Ku Klux Klan on a First Amendment criminal case. (Baugh is African-American.) Baugh is the son of a Tuskeegee Airman, and has a wealth of stories.

1:02 p.m.—Our chapter president, Tom Fitzpatrick, has introduced Mr. Baugh.

1:03 p.m.—"It's hard to have faith." The hardest thing to do is to teach a child to float. If you can't float, you're not deep enough in the water. Baugh's lesson: You've got to have faith in the Constitution.

1:04 p.m.—When Madison wrote the Constitution, he didn't say that certain people have rights. Everybody has those rights. Freedom of Expression: If someone else doesn't have the right to free expression.

1:06 p.m.—It's possible to come out of law school, be $200,000 in debt, and never have studied the Bill of Rights! "The Bill of Rights is a brilliant document." Baugh says he has been a member of the ACLU since he got expelled from college. (He's wearing a red and gold ACLU pin on his lapel, where politicians tend to wear American flags.)

1:08 p.m.—"The Bill of Rights is brilliant. I think George W. Bush is an asshole and I wish he'd die. Do you know what I just said is illegal in 95% of the countries in this world?" Someone asks, "Even though he's not the president anymore? "You can say Obama's an asshole. It doesn't matter."

1:10 p.m.—"The only way to protect religion is to leave it alone. That's like Kung Fu crap. It's brilliant." We have the right to bear arms. The ACLU never seems to talk about that one. "I tell my students all the time: if Jews had weapons, there never would've been a Holocaust. If deer had guns, there would be no hunting season." The right of the people to bear arms is the right to rise up against the government.

1:12 p.m.—"If any of you thinks there's a superior race, spend an hour with a Klansman. Dumb as a rock."

1:14 p.m.—"I had no doubt in my mind that O.J. Simpson was guilty, that he did it. I also had no doubt in my mind that he shouldn't have been convicted." Baugh believes this because the prosecutor was biased, the judge wasn't very bright, and the trial was a circus.

1:15 p.m.—"Every time a lawyer tries a case and a defendant gets acquitted, the system gets a little stronger." A woman asked him last night: "David, don't you worry about those technicalities?" He replied, "Those 'technicalities' are the Bill of Rights!"

1:17 p.m.—"When I was studying the philosophy of law, I realized there are two forces at work in the criminal justice system. There is order, and there is freedom. ... Those two forces are constantly at war. Order has a lot of supporters. Freedom doesn't have a lot of supporters, so I chose to work on freedom." Then Baugh realized that there is a third force: Morality.

1:20 p.m.—Baugh enters discussion of Commonwealth v. Black, 538 U.S. 343 (2003), a First Amendment cross-burning case. He represented a KKK Grand Dragon. "Little did I know that when an African-American agrees to protect the First Amendment, all hell breaks loose," Baugh says. He says this gave him some stature with his kids, because the BBC started calling the house. "They realize you're not just the fat guy who cuts the grass anymore."

1:25 p.m.—Baugh's case was to attack the Virginia cross-burning statute as unconstitutional. At the Supreme Court arguments, Baugh says that Scalia said that burning a cross is like pointing a loaded gun, not speech. "And for the first time in ten years, Clarence Thomas asked a question. You could've heard a fly piss on cotton in that courtroom."

1:28 p.m.—On whether it was tough to defend a Klansman, Baugh says it's a resounding "no." He was defending the rules.

1:31 p.m.—"Nobody is so guilty of a crime that they shouldn't get a fair trial. Nobody is so guilty of a crime that the law can presume that they did it," Baugh said. A judge's job is not to make sure that the guilty get convicted and the innocent go free, but to follow the rules, he says.

1:38 p.m.—Baugh's discussing a case he argued in New York, the bombing of a U.S. Embassy. At trial, he said he told the jury that the issue was not whether the defendant should be executed, but whether they should kill him. The judge stopped him. "Don't say 'kill,' say 'execute.'" Why's that, Baugh asks? Because killing is illegal, and execution is legal. "Well, you know what? No law was ever broken in the Holocaust."

1:41 p.m.—"The ACLU is despised by most Americans because we advocate technicalities."

1:45 p.m.—Baugh was a prosecutor for five years, and in private practice as a defense attorney for 30 years. Now he's a capital defender. "I absolutely love going to work in the morning. I have a purpose."

1:48 p.m.—"It's a wonderful feeling to have a cause," Baugh says. "Find a purpose."

Philosophy of Law lecture: Jules Coleman

2009-02-24T13:03:00.028-05:00

1:04 p.m. - I'm going to try something new: live-blogging a lecture. This is a new lecture series on the Philosophy of Law here at the Marshall Wythe School of Law at William & Mary. W&M Law Professor Michael Steven Green is giving the introduction to Professor Jules Coleman. Coleman is the Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy at Yale University. Coleman is the author of The Practice of Principle, Risks and Wrongs, and Markets, Morals and the Law, as well as many other books and articles in the philosophy of law and tort theory.

Prof. Green says that Prof. Coleman is a giant in torts theory.

1:05 p.m. - Prof. Coleman takes the stage in Room 141. Prof. Coleman learned from Guido Calabresi, a distinguished professor of Coleman's who "had the wrong views." He says he teaches from Calabresi's notes, but with a caveat: he puts a negation in front of what Calabresi said. (NOTE: Calabresi taught at Yale, and was nominated to the Second Circuit Court of Appeals by Bill Clinton in 1994. He still sits there today.)

1:08 p.m. - When people think about the philosophy of law, they think about it in a normative way. Tort law is not that way. What is tort law? What is essential about it? How does it differ from criminal law, contract law and other kinds of law?

1:09 p.m. - A good theory of tort law should resonate with its participants. It should be hermeneutic — participants in the kind of law should recognize their practice in a good legal theory. "I'm trying to offer a theory of tort law that makes sense to the people who are participants in it," Coleman says.

1:11 p.m. - Economic analysis. Time to talk about bad luck. Bad luck leads to people having to absorb costs. What should we do about these costs? Two obvious things: one, we should try to minimize them. Another thing is to try to spread their costs.

1:12 p.m. - Tort law provides remedies to people who get injured. If you're an economist, you might look at tort law and say it's all about deterrence. That might be plausible, but it may not resonate with the participants in practice.

1:15 p.m. - "It's a good question to ask when you're trying to offer a theory of the law: What kind of explanation are you trying to offer?" Coleman says.

1:17 p.m. - Coleman is interested in the question: Should the theory of a certain area of our social life be responsible to what participants think?

1:18 p.m. - Coleman is skeptical about the application of his theory to theories about markets. "No one in their right mind" would think that market theories should depend upon what market participants think about markets, he says. The same is true of language, and speakers of it. Linguists and language theorists don't think that language speakers should have theories about language. Who would care about such theories? Well, maybe being a judge is different, Coleman says. A judge may have to have some level of understanding about the role that a judge plays in the law. "How is law different from other kinds of social engagement?" he asks.

1:22 p.m. - Coleman makes a joke. "You're in law school, you have competent teachers. I'm supposed to slip that in three times during the lecture. I've done it at 20 after, I'll do it again at 40 after ..."

1:24 p.m. - Coleman mentions that his theory is corrective justice. "Sounds good, doesn't it? What kind of justice do you stand up for? Corrective justice. As opposed to what? Incorrective justice." The audience laughs.

1:25 p.m. - Coleman provides the elements of torts: duty, breach, harm. He cites Justice Cardozo in Long Island R.R. But what makes these the elements of torts? What does a theory of torts try to accomplish? For most people who make theory about torts, he says, it's about trying to predict the outcome of cases. They're not trying to say why duty matters, why breach matters, etc.

1:28 p.m. - The economic theory of torts is uninteresting to Coleman, unless it has one more thing. Is it an accidental relationship between the theory and the outcomes of cases, or is there a mechanism at work that connects the theory to the outcomes of cases.

1:30 p.m. - "I actually think very highly of myself as a torts theorist," Coleman says. Now he makes a joke about being a psychotherapist, being aspirational, and being Jewish. A number of people are laughing. I'm typing furiously and I don't know the Jewish-psychotherapy connection, so I don't get it.

1:33 p.m. - Coleman is trying to engage a 1L, who's not laughing at his jokes. This lecture is being filmed, by the way. Not sure how or when it will be available.

1:34 p.m. - Coleman believes the paradigmatic tort is a wrong, not an accident. If I want to understand tort law, I should want to understand intentional torts, he says. Coleman switches gears to contracts and specific performance being the paradigmatic remedy for contracts. HYPO: Let's say I promise to paint your house ("very unlikely," he says). Someone comes up to him and says, you promised to paint my house, but you didn't paint my house. There's no reason for you not painting my house. Why does the person who asked for the house to be painted need to provide a special reason for having the painter paint the house? If you think that contracts are promises, you would think about why specific performance is appropriate, when it is appropriate.

1:40 p.m. - Coleman's making a joke, plugging his book because he has children in the arts and has to support them.

1:42 p.m. - When an economist looks at tort law, he sees three things: accidents, costs, and liability as a mechanism for shifting costs. "As a philosopher, I see more concepts, and different ones," Coleman says. "I see rights and wrongs. I see responsibility. I see costs as a mechanism for holding people accountable. I don't see costs at all. They're not primary to me. The notion of duty is primary to me, and an action contrary to a right is primary to me."

1:44 p.m. - When Coleman looks at tort law, he sees it as a subject already influenced by some working theory he has of it. He doesn't look at it in a completely normative, neutral way. In contracts, he wants specific performance. On the philosophical side, he says there are moralists in the theory of tort law. "I take great pride in the fact that no student of mine ever holds a theory that I hold," Coleman says. Even though he's a legal positivist, and legal positivism is the most common legal theory, he says that no student of his is a legal positivist.

1:48 p.m. - Coleman says that Richard Epstein is an institution, who cranks out legal ideas faster than anyone, and has views about everything.

1:52 p.m. - The lecture is going to have to end soon, sadly, because many students and professors in the room will have to attend 2:00 classes. Looks like there won't be time for questions.

Here are the next two lectures in the series (courtesy of the W&M Communications office):

March 19, 1 PM, Room 141: Michael S. Moore, Walgreen Chair and Co-Director, Program in Law and Philosophy, University of Illinois College of Law. Professor Moore is the author of Educating Oneself in Public, Placing Blame, and Act and Crime, as well as many other books and articles in the philosophy of law and criminal law theory.

March 26, 3:30 PM, Room 127: Lawrence A. Alexander, Warren Distinguished Professor, University of San Diego Law School. Professor Alexander is the author of Is There a Right of Freedom of Expression?, Whom Does the Constitution Command? (P. Horton co-author), and The Rule of Rules: Morality, Rules, and the Dilemmas of Law (E. Sherwin co-author), as well as many other books and articles in the philosophy of law, constitutional law, and criminal law theory.

1:55 p.m. - Coleman has given a summary of people doing philosophy of law — stuff he's interested in. He's giving a reading list, a sort of Who's Who in the Philosophy of Law today.

Williamsburg or Iowa — Which one is a Yankee Cesspool?

2009-02-22T09:51:00.006-05:00

Well, of course neither Williamsburg nor Iowa constitutes a "Yankee cesspool." But at least on the website of the Daily Press, Williamsburg's newspaper, this qualifies as a debate.

On Friday, the newspaper published a letter I wrote about a constitutional amendment in the Virginia General Assembly, that would have automatically restored voting rights to nonviolent ex-felons once they serve their time. (I first blogged about the Restoration of Voting Rights project last fall.) Here's the letter:

The Virginia House Privileges & Elections Committee dealt a setback to positive change on Friday, effectively killing (for this year) a constitutional amendment that would allow non-violent ex-felons the right to vote. Virginia is one of only two states in the U.S. that permanently bars ex-felons from voting, even after they have paid their debt to society.

This portion of the Virginia Constitution is a shameful reminder that racism persists even today, because most ex-felons in Virginia are black. Once these residents have served their time, they should have their voting rights restored automatically. All free Virginians should have the right to vote. Our House of Delegates should know better than to keep Jim Crow laws on the books.

What startled me was the response the letter got. For a short time on Friday, it was one of the most viewed items on the Daily Press website. By Saturday, readers had left a total of 43 comments. Let's just say they weren't all supportive of the idea that once a person has completed his prison sentence, he should get his rights back. Never mind that this is the law in 48 of the 50 states — only Kentucky and Virginia lag behind. Here's a sample of the comments:

#6: Has anyone ever noticed how 98.7% of the left wing liberal letters to the editor come out of my hometown of Willamsburg?

We have so many yankees living here now it's like living in New York City.

They bring their left wing liberal socialist attitudes with them. Yankee go home !!!

#12: ... If you feel so strongly about this maybe you should be in the lower income neighborhoods counseling black youths against committing criminal acts and less time in lavish Williamsburg.

#13: Williamsburg is a cesspool of liberals. If those elitists had to live in Hampton or Newport News in the same neighborhoods as the felons, they would have a different attitude.

#35 (in response to #13): They had sense enough to move from the Yankee cesspool and move to Williamsburg.

#19: ... [T]he fact is that one third of the Blacks in this are have substantial criminal records and have dropped out of school. To participate in a Republic, you need to be an informed voter; hence the Founding Fathers when evaluating the intellectual capacity of a certain class decided they would count as 2/3s. So it's one man, 2/3d vote. Besides they don't pay taxes, they are paid by the taxpayer.

You get the idea. My original point in the letter, the one that stirred the pot, was "that racism persists even today." I stand by that point.

On a more exciting note, the United States Supreme Court has agreed to hear a monumental case in the world of criminal justice, determining whether criminal defendants have a constitutional right to DNA evidence that could definitively show their innocence (or strongly implicate them in the crime). An Alaska man who was convicted of kidnapping and rape has asked the courts for access to sperm left in a condom the night that two men abducted a prostitute, raped her, and left her for dead on the side of a road. The DNA could almost certainly prove whether the man participated in this horrible crime. At trial, the driver of the car (who had already pleaded guilty) said that William Osborne rode in the passenger seat that night, and participated in the crime. Osborne's trial lawyer never asked for access to the DNA, and he was convicted. On appeal, however, a new lawyer — presumably, one who believes that Osborne is actually innocent — argued that Osborne has a right to this critical scientific evidence. The Ninth Circuit Court of Appeals agreed, citing a pivotal Supreme Court case, which says that criminal defendants have a right to evidence that tends to show that the defendant did not commit the crime. The Court decided that case, Brady v. Maryland, back in 1963 — long before DNA evidence came about.

If the Court finds that Osborne does have a constitutional right to the DNA evidence, then criminal defendants across the country will be able to ask for this sort of evidence. This would be a fantastic development, because it will likely result in scores of exonerations. The government will be forced to disclose DNA, and innocent people will be set free. One would think that states and the federal government would support this, but they do not want to pay for the testing. So, the states and the feds argue that defendants do not have a constitutional right of access to DNA evidence. I disagree.

The Supreme Court will hear arguments on March 2 in William Osborne's case, District Attorney's Office for the Third Judicial District v. Osborne. The Washington Post has a good story about the case, and SCOTUSblog provides a detailed look at the facts.

Good Eggs and Research Papers

2009-02-20T11:33:00.002-05:00

I'm working on three research papers at the moment, not an uncommon task for a second- or third-year law student. This gives me the pleasure (no, really) of spending inordinate of time reading news and law review articles, cases, and statutes which may or may not be helpful to my cause. Doing research for a legal paper involves a hodgepodge of systematic exhaustion and serendipity. The latter comes when you find that amazing piece of work that seems as if the author wrote it just to help you with your particular project.

The three papers include my Note, a criticism of the portion of Virginia death penalty law that allows people to die if a jury determines they pose a "serious continuing threat to society." I've been working on this since August, and it's finally due in two weeks. In the last few days, I have completely revamped this 42-page article with the help of a fantastic, brilliant lawyer, writer and friend. The second paper is a 15-25 pager for my Death Penalty seminar. My outline is due Monday. Today I'm reading Albert Camus' terrific essay, Reflections on the Guillotine, for inspiration and to get started on what I think will turn into a law student/philosopher/former journalist's view on why America continues to execute criminals when most of the rest of the Western world quit decades ago. The final paper is a 25-40 pager I'm just starting for my Post-Conflict Justice/Rule of Law class. This week I switched topics, ultimately deciding to write about the new legal rights given to victims in the Khmer Rouge trial.

My original topic, and my reason for writing today, was the conflict in Gaza between Israel and Hamas. I could not come up with a post-conflict thesis for my paper, in part because the conflict has not ended. I did, however, become even more interested in the crisis and the myriad problems that both sides face. Perhaps coincidentally, my girlfriend posted this fantastic article on her Facebook profile. A Japanese novelist, Haruki Murakami, faced the difficult decision of whether to go to Israel and accept a literary award, at a time when Israel's popularity in the world continues to plummet. In his amazing piece for Salon, he creates an apt metaphor for the conflict:

"Between a high, solid wall and an egg that breaks against it, I will always stand on the side of the egg."

Of course, Israel, with its superior weaponry and U.S. backing, is the wall and the Palestinians are the egg. Or do the Israeli government and Hamas together form the wall, making Israeli and Palestinian civilians the egg? Haruki leaves an important ambiguity there, one worth pondering.

A first in international law

2009-02-11T18:27:00.005-05:00

One of my classes this semester is International Criminal Law, a burgeoning field of law that began in earnest after World War II, with the Nuremberg and Tokyo Tribunals. When most people think of criminal law, they think of crimes like murder, robbery, theft, etc. There are hundreds, if not thousands, of domestic crimes, and they vary by state and country.

International crimes, on the other hand, are few — but they are hefty. After Nuremberg, there were essentially three international crimes: war crimes (breaking the rules of war, a series of treaties that includes the Geneva Conventions), genocide (systematically killing a group of people because of their ethnicity or religion), and crimes against humanity (engaging in systematic persecution, torture, rape, or other inhumane acts as part of a governmental policy). A fourth international crime, aggression, is still in development, and is not used as often as the others.

Most international crimes have been prosecuted by ad hoc tribunals — courts set up to deal with international crimes after they have occurred. This has been the case for situations like the former Yugoslavia (the ICTY) and Rwanda (the ICTR). The field of international criminal law got a huge boost in 1998, when 120 countries signed a treaty containing the Rome Statute, which established a permanent, forward-looking International Criminal Court. The court has its permanent seat at The Hague, Netherlands, and operates independently — for the most part — of the United Nations.

(Although the Clinton Administration helped draft the Rome Statute, the Bush Administration and Republicans in the Senate refused to ratify the treaty, so the U.S. is not a member of the International Criminal Court.)

This is just a little background to help explain what's happening today, which is a first in international criminal law. The ICC has issued an arrest warrant for Omar al-Bashir, the president of Sudan. He is accused of war crimes, genocide, and crimes against humanity. Obviously it's difficult to arrest a sitting president, so it's not at all clear when or if that will happen. But he has been indicted, and an ICC prosecutor is waiting for Bashir in The Hague, should he somehow be delivered. For a depressing look at what has happened in the Darfur region of Sudan on Bashir's watch, go to savedarfur.org.

What happens next may depend on the actions of five key nations: China, France, Russia, the U.K., and the U.S. These are the five permanent members of the UN Security Council. If the Security Council so chooses, it may permanently delay Bashir's prosecution. As the Times article suggests, some people believe that it could be detrimental to any peace process in Darfur if Bashir is extradited to The Hague and put on trial. That could lead to many more years of chaos in Sudan. But it would also likely mean the first prosecution of the sitting president of a country — a revolution in international law.

UPDATE: Turns out the Times article may have been a bit premature. The Associated Press reports that the ICC is denying that its judges have made a decision to issue a warrant for Bashir's arrest.

SFIP & BLSA Death Penalty Symposium

2009-02-07T20:01:00.008-05:00

The William & Mary Law chapter of Students for the Innocence Project and the Black Law Students Association co-sponsored the second annual Death Penalty Symposium on Saturday, Feb. 7 at the law school. The forum featured capital trial and appellate lawyers and John Thompson, who was convicted of a crime he did not commit and was exonerated in 2003 after 18 years in prison, including 14 on death row.

Judge Tommy Miller, a federal magistrate judge in Norfolk, moderated the symposium and provided opening remarks on the history and constitutionality of the death penalty in the United States.

Miller said a conversation about the death penalty is highly relevant. The State of Maryland is considering abandoning the death penalty. There were recent editorials on the topic in both the Washington Times and Washington Post, with each paper taking opposing sides of the debate.

“It always puzzled me why the death penalty is considered part of the conservative philosophy because conservatives generally don’t believe the government can get anything right, so why should they believe [the government] would get the death penalty right?” Judge Miller said.

Miller said the first legal execution in the United States took place in 1608, just five miles down the road at Jamestown Colony. The death penalty was very much in vogue in England, he said, and when we drafted the Constitution, we included the Eighth Amendment — “nor shall cruel or unusual punishment be inflicted.”

The case of Furman v. Georgia, 408 U.S. 238 (1972), declared the death penalty unconstitutional as applied. At the time it was announced, the opinion was the longest in Supreme Court history, and included opinions by all nine justices.

The death penalty returned with the Court’s decision four years later, in Gregg v. Georgia, 428 U.S. 153 (1976). That decision, 7-2, held that changes Georgia had made to its death penalty scheme were sufficient for the system to be constitutional.

Since Gregg, the Court has narrowed the situations in which the death penalty can be used. It cannot be used for certain crimes, such as the rape of an adult woman, Coker v. Georgia, or a child, Kennedy v. Louisiana; or for certain defendants, such as juveniles, Roper v. Simmons, the mentally ill, Atkins v. Virginia, or the insane, Ford v. Wainwright.

The arguments against the death penalty include arbitrariness. This can take place at many levels — the police who investigate the crimes, the attorneys who prosecute the offenses, the judges who oversee the cases, the juries who hear them, and the appellate judges who take up the cases on review. One recent example is the case of Jackson v. Commonwealth, 255 Va. 625 (1998).

The Supreme Court decided an important death penalty case last year in Baze v. Rees, which upheld the constitutionality of Kentucky’s system of lethal injection. In that case, however, Justice John Paul Stevens, wrote for the first time in his 32 years on the Court that he believes the death penalty to be unconstitutional.

So is the death penalty unconstitutional? Judge Miller’s conclusion is that the Constitution is what five members of the U.S. Supreme Court say it is. Justices William Brennan and Thurgood Marshall consistently wrote that the death penalty was unconstitutional, including their majority opinions in Furman. Justice Harry Blackmun voted for the death penalty’s constitutionality in both Furman and Gregg, but writing in a denial of a writ of certiorari in Callins v. Collins several months before his retirement in 1994, Blackmun voiced his regrets, saying he would “no longer tinker with the machinery of death” or “coddle the Court’s delusion” that the death penalty worked in the United States. Justice Lewis Powell, a consistent vote for the death penalty, retired from the Court in 1987, 11 years after he joined a seven-justice majority in Gregg. But in a 1991 interview, he said that if he had it to do over again, he would vote the other way in every death penalty case, including the Court’s landmark decision of McCleskey v. Kemp (1987), which held that the death penalty was not racially discriminatory in its application. Combined with Justice Stevens’s remarks in Baze, that’s five votes against the death penalty’s constitutionality. (Of course, only one of those justices — Justice Stevens — remains on the court today.)

Richard Dieter, Death Penalty Information Center
Richard Dieter, executive director of the Death Penalty Information Center in Washington D.C., spoke about death penalty trends in the United States. The number of executions steadily rose between 1976, with the Court’s decision in Gregg, and the late 1990s. More jurisdictions implemented the death penalty, including Kansas and New York.

But then something happened — the case of Kirk Bloodsworth. Bloodsworth was a former Marine who had no prior criminal record. One day in 1984, he was in a park in Rosedale, Maryland, where a nine-year-old girl was raped and murdered. Some child witnesses identified Bloodsworth, who was convicted of first-degree murder and sentenced to death. Nine years after his conviction, in 1993, a DNA test exonerated Bloodsworth, who had always maintained his innocence.

“It wasn’t just the courts or lawyers who freed Kirk Bloodsworth. It was science,” Dieter said. “If it wasn’t for science, Bloodsworth might still be in prison.”

Kirk Bloodsworth became the first death row inmate to be exonerated based on DNA evidence, but he wasn’t the last. As of January 2009, 130 death row inmates have been exonerated in the U.S., including 51 between 1997 and 2004.

“That’s a disturbing number,” Dieter said.

In 1998, Northwestern University Law School hosted the first-ever exoneree conference, where each former death row inmate stood up and told his story. The event is credited with contributing to the current moratorium on executions in Illinois. See Henry Weinstein, Victims of the Justice System, L.A. Times, April 9, 2006 at B1, available at http://articles.latimes.com/2006/apr/09/local/me-wrongly9.

Death row exonerations have not been limited to DNA cases. Dieter told the story of Anthony Porter, a death row inmate in Illinois, who was convicted based on erroneous eyewitness testimony. Journalists interviewed the witness, who recanted her testimony and gave the name of the real killer. The journalists went to Milwaukee to find the man, who confessed to the murder and was later convicted. Porter was freed, and then-Illinois Gov. George Ryan commuted the death sentences of all 156 Illinois death row inmates before leaving office in 2003. See Governor Clears Illinois Death Row, BBC News, Jan. 11, 2003, available at http://news.bbc.co.uk/1/hi/world/americas/2649125.stm.

After the Illinois moratorium, the number of death sentences nationwide began to fall dramatically, from about 300 in 1999, to about 125 in 2005. That trend has been aided by jurisdictions dropping the death penalty altogether. The New York Court of Appeals held that state’s death penalty unconstitutional in 2004, and the New Jersey Legislature abolished the death penalty largely for cost and efficiency reasons in 2007.

“I think innocence has played a significant role,” Dieter said. “But clearly innocence is not the whole story.”

Executions have also dropped from a high of 98 in 1999 to 37 last year, but that trend is likely to go the other way this year. After the Court granted certiorari in Baze, there was a moratorium for several months in 2008 as states waited to hear whether the constitutionality of lethal injection would be upheld.

The vast majority of executions occur in the South — of the 37 executions nationwide last year, 95 percent of them occurred in Southern states.

Recent polls show that the public is now evenly split on the death penalty.

Dieter spoke about several cases like that of Larry Griffin, who was executed in Missouri, despite questions about his innocence. Thus far, there has not been a case in which someone has been exonerated after an execution, but should that happen, Dieter believes it would give the public real pause about keeping the death penalty.

Dieter also raised the issue of cost. The death penalty has cost the State of California $1.25 billion in 10 years, and there are nearly 670 people on California’s death row. California has not executed an inmate in more than three years, and has only executed 13 people since Gregg in 1976.

One audience member said that when he thinks about the death penalty, one person comes to mind: John Malvo. Malvo, the younger participant in the sniper shootings in Maryland and northern Virginia, was convicted and sentenced to life imprisonment without chance of parole. The audience member said that the people wanted Malvo executed, and that he believes that when a person is found guilty of first-degree murder, that’s what should happen.

“The problem has been, it just hasn’t worked,” Dieter said.

W&M Up Against FIRE-ing Squad

2009-01-29T10:02:00.003-05:00

This post was first published yesterday on the W&M Law American Constitution Society blog: http://web.wm.edu/so/acs/.

The nation's second-oldest college, which prides itself on having educated some of the most important Founding Fathers, has been criticized for undermining the most fundamental right in the Constitution: the freedom of expression. FIRE, the Foundation for Individual Rights in Education, has labeled William & Mary a "red-light" school, calling out the College for having one or more policies that "clearly and substantially restricts the freedom of speech of its students."

The Flat Hat reported the story Tuesday on its web site. As part of its free-speech warning system, FIRE, a 10-year-old organization, sent a letter to President (and former law school dean) Taylor Reveley. In the Flat Hat article, Reveley expressed his surprise at the school's labeling, saying that he doesn't think W&M is "stifling free speech."

William & Mary is by no means the only target of FIRE's mailing. The University of Virginia, Virginia Tech, and George Mason all received similar letters. (See the entire list here.)

It is worth noting, though, that the Flat Hat chose to highlight the free speech issue less than one year after former W&M President Gene Nichol allowed a performance, albeit a censored one, by the Sex Workers' Art Show. There is no need to rehash the whole controversy here; a section of Nichol's Wikipedia article and a search for "sex workers" on the Flat Hat's web site will suffice. Although other reasons were offered when the Board of Visitors decided to allow Nichol's contract to expire, prompting his sudden resignation last February, many cited Nichols's proclivity for bringing First Amendment issues front and center (see, e.g., the Wren Cross and the Sex Workers' Art Show). This pro-First Amendment attitude—or was it actually a gusto for front-page attention?—certainly wasn't welcomed by alumni.

Nichol aside, FIRE cites vagueness in the College's general harassment policy and Student Handbook policy on student posters, banners, and signs as reasons for the "red-light" label. The poster policy reads: "All signs, posters, and banners must conform to acceptable community standards and to any applicable laws such as permissible wording by the Alcohol Beverage Control Commission" (emphasis added). Those who have taken Professor Van Alstyne's First Amendment class can tell you that defining community standards is a bitch. For example, "Pictures of what appear to be 17-year-olds engaging in sexually explicit activity do not in every case contravene community standards." Ashcroft v. Free Speech Coalition, 535 U.S. 234, 235 (2002). Imagine taping such a picture on the walls of an academic building at W&M, or even a residence hall. But what if a law student doing a special project on First Amendment issues wanted to use such a picture? What about an undergrad journalism student with similar motives? Can an academe be part of a different community at the same college?

Such speech codes have a downside, as at least one Virginia scholar has noted. Those who violate the codes (or allow them to be violated) may become glorified as martyrs for the Free Speech cause. "[T]here is a genuine danger that speech codes may not simply fall short of a laudable goal but in fact may even undermine that goal." Robert M. O'Neil, Free Speech in the College Community 13 (Indiana Univ. Press 1997).

So what is at stake for W&M? Do prospective students consider Free Speech issues when they weigh their choices of undergraduate institutions? It seems unlikely. At the very least, however, an institution that prides itself on educating the Founding Fathers should consider restraint when it comes to censoring free speech on campus. If there's a college community where all kinds of free expression should be welcomed, this is it.

Barack's Inauguration

2009-01-21T16:02:00.004-05:00

Versions of this op-ed were published in the West Branch Times and the Marshall-Wythe Press (print only).

WASHINGTON—As Barack Hussein Obama II took the oath of office as the nation’s 44th president, becoming the first African-American to lead the free world, more than a million people gathered on the National Mall to experience the ground-breaking moment.

Fewer than 250,000 of those people had tickets to the Inauguration and stood within a half-mile of the Capitol as the swearing-in took place. Thanks to the Office of Senator Tom Harkin, I was fortunate enough to be one of them.

From where I stood in the Silver section, accompanied by two friends from Iowa, I could see the stage where Chief Justice John Roberts Jr. administered the oath to Obama, but I could not see the faces of the two young leaders, the first men born after 1950 to hold their respective positions. We, the crowd, stood just beyond the Capitol Reflecting Pool—around which some people had camped Monday night in subfreezing temperatures to secure their spots—past the Washington Monument and all the way to the Lincoln Memorial, where Martin Luther King Jr. had delivered his “I Have a Dream” speech. I could not help but notice the symbolism, that it took this event, the swearing-in of a black president, to draw a crowd so large that the marble Abe, who delivered us from slavery, could bear witness.

My friend Kristy, who works in Washington, her friend Mary and I departed Kristy’s house in Capitol Hill at 7:30 a.m. The night before, we had debated whether to leave for the Mall at 7 a.m. or 8 a.m., because the gates opened at 8 a.m. and we knew most people would have a tough time commuting into the city. Once we turned on the news at 7 a.m., we recognized our folly: people had boarded the trains from all parts of Maryland, northern Virginia and D.C. at 4 a.m. Already, the Metro parking lots were full and soon the Mall would be, too.

I was immediately struck by the diversity of the crowd, and I could not help but feel the energy of the day. It was cold—about 30 degrees with a brisk north wind, creating a demand for hand and foot warmers that was filled with a steady supply from street vendors. “Just five dollars!” they shouted. As we navigated the hordes of people to find our designated line, both the urgency of the day and the temperature of the air pushed us all together—black, brown, yellow, red and white, just as Reverend Joseph Lowery said in the benediction.

Most of us lost cell service in the morning, and the day was all the better for it. One woman asked a traffic cop, “What street is this?” “That’s Constitution,” he replied, “and that’s Independence.” Already flustered at 8 a.m., she asked him, “Is there a less crowded way?” The cop just laughed and shook his head, and so did we. Later, a woman who described herself as “vertically challenged” held a digital camera high above her head to take pictures, then glanced at them in the camera’s display to see what was ahead (more people). A tall man, probably about 6-foot-8, offered his own assessment. “I think I see Reverend Wright!” he exclaimed, and about 100 people burst into laughter.

While standing in line for the Silver Gate, I had one of those Iowan moments, the kind where you strike up a conversation with a total stranger until you find your common ground. I noticed a man’s stocking hat, black with white piano keys around the rim. I told the man that until that day I thought my dad possessed the only such hat in the world, and the man responded that he had thought the same of his own. He said that it was quite a remarkable hat—wearing it, he had run a marathon, been filmed in a movie, and now attended Barack Obama’s Inauguration. His friend, Kevin, noticed my less significant Hawkeyes hat, and asked if I knew anyone from the Cedar Rapids area. I told him my two brothers live there, and that I graduated from Cornell College. He asked if I knew his aunt, who's a professor at Cornell. I told him that she had taught me Spanish 205 when I was a college sophomore. Kevin and I laughed, and his friend took our picture. “It was all because of the piano hat,” he said.

Once we got to the Mall, around 9:45 a.m., we took our spots about 100 yards from a Jumbotron with closed captioning and speakers, without which we would not have seen or heard what was happening. As the dignitaries arrived, the giant screen displayed them and the crowd reacted accordingly. I chuckled as a largely left-leaning crowd (OK, including me) booed a black man (Clarence Thomas), a pastor (Rick Warren) and a man in a wheelchair (Dick Cheney, who had hurt his back the previous day moving boxes). During Warren’s invocation, more than a few people turned their back to him; I saw two such people holding upside-down triangles of pink cloth, symbols of gay acceptance once used to identify homosexuals in Nazi concentration camps. Still, the biggest boos were reserved for Joe Lieberman, the former Democrat who endorsed Obama’s opponent and spoke at the Republican National Convention. Apparently Obama’s supporters have forgiven John McCain, because the crowd remained mostly silent for him. There were big cheers for Obama’s endorsers: Oprah, Colin Powell and Ted Kennedy.

As Barack and Michelle took the Capitol stage, the crowd alternated chants of “Yes we can!” and “O-ba-ma!” The Inaugural speech was well received, and most people left the Mall when the new president finished, even if there was more to the official program.

As we waited to exit, though, it seemed there was one bit of business remaining. A short man in an orange coat informed us of an Inaugural tradition: after the event, the outgoing president would take off from the Capitol in a helicopter. In the Jumbotron, I saw the propellors start. When George W. Bush had come to the stage for Obama’s speech, many in the crowd had sung, “Na na na na, hey, hey, hey, good-bye,” and we wondered aloud if the 43rd president could hear them. As the helicopter rose into the sky, the people cheered and one shouted, “Good riddance!” The man in the orange coat gave the departing president a one-fingered salute. A middle-aged black man standing with his teenage son turned to me and said, “In all my life, I’ve never seen anything like it.”

(Click here for photos of my trip to the Inauguration.)

Semester No. 5

2009-01-13T15:55:00.002-05:00

It hardly seems possible that law school is half over for me, but it surely is. William & Mary marks the occasion for its 2Ls this Thursday with a "Half-Way Through BBQ."

I arrived back in Williamsburg on Thursday night, having spent three relaxing weeks in Iowa (see picture, from Pikes Peak State Park). Much like many of my classmates, I tried to achieve two main goals: spend as much time with family and friends as I could, and spend as little money as I could.

My class schedule for this semester is settled, after I managed to get admitted into one of my classes from the wait list. Here's my schedule, which is full of interesting and mostly criminal law classes:

International Criminal Law, M-W, 10-11:15 a.m. (3 credits)
Criminal Procedure I, M-Tu-Th, 11:30 a.m.-12:20 p.m. (3 credits)
Post-Conflict Justice and the Rule of Law, M-W, 3:30-4:45 p.m. (3 credits)
The Death Penalty, M, 6-7:40 p.m. (2 or 3 credits, depending on length of final paper)
Legal Skills (2 credits, pass-fail)
Ethics (1 credit)
Law Review (1 credit, pass-fail)

I have four classes on Mondays, which should make for a busy start to the week, but I think I seek that out given my history in weekly newspapers, where organized chaos reigns on Monday and Tuesday. Crim Pro I, which covers the Fourth Amendment (searches, seizures, and warrants) and Fifth Amendment (self-incrimination, due process), will help considerably on the Bar exam. Post-Conflict Justice and The Death Penalty are smaller, seminar-type classes—more discussion than lecture, which I prefer. These two classes will require presentations, class participation, and a final paper, rather than the typical final exam. My first Death Penalty presentation will be Jan. 26, with three other group members.

As one might guess from this schedule, I have settled on criminal defense as a "specialty," though law students do not actually declare majors or specialties, as undergraduates do. Our education must prepare us for only two things: passing the Bar exam and getting a job. One hopes that it will also prepare us for a third—being good at that job—but it'll be a long time before I know if I've accomplished that.

As for the immediate tasks, tomorrow I will defend my Law Review Note for 20 minutes against three editors who have reviewed it and made suggestions. Also for journal responsibilities, I'll have two cite checks this semester, and probably some other tasks. Over break, I began work on another semester of research for my fellowship professor, 10 hours per week. Our Legal Skills trials get under way next week, though mine isn't until Feb. 5. My friend Tommy and I will act as prosecutors, which should be fun.

Ethics, which is part of the Legal Skills curriculum, is a two-week class followed by a graded exam. It is all preparation for the Multistate Professional Responsibility Examination (MPRE), which all law students must pass before we can take the Bar. Next week I will likely register for the March 7 MPRE, to get that obstacle out of the way.

As for the truly exciting stuff, I got a ticket to the Inauguration! A giant thanks to Senator Tom Harkin. On Sunday, I will either carpool with a friend or take a passenger train (for about $100) to D.C., where I will do my best to record—with my mind, pen, and camera—what promises to be an amazing, historic scene.

Halfway and Home

2008-12-19T08:58:00.000-05:00

The forty-five or so of us who took the Criminal Procedure II test yesterday weren't the last people to finish the semester—some classes have paper deadlines that extend beyond the finals period—but we certainly had the last final exam. It's over, thank goodness. I'm halfway done with law school. Last night at the gym a 3L congratulated me and remarked on the halfway mark. "I hope that was the harder half," I said. "Oh yeah," he replied. Next semester will include the defense and revision of my Law Review Note, a criminal trial for Legal Skills (Feb. 5), an ACLU trip to D.C. (Feb. 6), the Students for the Innocence Project's Death Penalty Symposium featuring my boss from last summer (Feb. 7), a second straight Spring Break trip to New Orleans with our awesome Student Hurricane Network group, and more fellowship research for my professor on First Amendment issues. My class schedule is not finalized, but it will certainly include the Death Penalty Seminar, with the same judge teaching that I had for Crim Pro II. I'm stoked about that class.

An update on my last post: Yesterday the Public Service Fund, the student-led W&M Law group that raises money for people like me who insist on working unpaid summer internships, sent an email to all public service-oriented students which said that only 15% of my class has secured a job for next summer. To contrast, the email said that 40% of the 3L class had jobs at this point last year. (This is an issue for PSF because when people who do not find paid jobs, more request public service funding.) I should mention that our class is not 25% inferior to the 3L class in any substantive way; quite the contrary, I have heard from classmates who have secured jobs with some of the top D.C. firms. No, the legal job market sucks in a very real way. Go, go gadget Congress. Is it January 20 yet?

Oh, and we lost the hockey game to the Marine Science graduate school team, 3–2, with :27 left in sudden death overtime. We had led, 1–0, after the second period, but the VIMS (Virginia Institute of Marine Science) team scored off the face-off in the third, and followed with what seemed to be the dagger goal with under 2:00 to play in regulation. One of our amazing hockey players, though, took control and scored a goal with under 1:00 to play, tying the match at 2–2. We were almost to the shootout when VIMS scored, dashing our hopes of an IM title. Maybe next year.

My flight to Iowa leaves in 4-1/2 hours. My brothers have been sending me weather reports that have prompted me to pack a pillow for what could be a long trip home (Richmond to Chicago to C.R.). I can't wait to get there, whenever it happens.

Almost halfway done

2008-12-12T10:16:00.004-05:00

Many of my classmates are celebrating the halfway mark of their law school lives, having finished first-semester finals. It's an exciting moment of relief for many of us, but not for all. Maybe you've heard that the economy isn't doing so well these days. Turns out that matters even to law students, who have found that employers have cut back on hiring, big-time. I blame people like Rod Blagojevich, who can't seem to find the money to pay his $500,000 in legal bills. (No wonder he was trying to sell that Senate seat.) But apparently the problem extends beyond our nation's most troubled governor. "Even the best clients were holding payment," says one law firm chairman. If people can't pay their bills, law firms can't pay their lawyers, let alone hire new ones.

This is troublesome for law students across the country who spent all fall interviewing with potential employers, and still don't have job offers. Many of us came to law school with the idea that taking on thousands of dollars in debt would pay off not long after graduation. These tough times are hitting most everyone hard — even those entering the legal profession, which once seemed a surefire way to get a high-paying, rewarding job.

Fortunately for me, I've landed a public service job in San Francisco next summer, working on death penalty appeals. Though I won't be making big bucks, I'll have a small stipend through the law school, as I did last summer, and I'll be doing the kind of work I can feel good about. More on the job later, though. Must get back to studying. Almost halfway done with law school, and it feels pretty good.

Finals mode

2008-12-04T17:26:00.002-05:00

Tomorrow is the last day of first semester classes, with finals starting the middle of next week. Seasoned law students are retreating to their comfort zones, finding the corners of the library (law or undergrad; I prefer the latter this time of year) they like best, bouncing from coffee shop to coffee shop, or holing up in their study spaces at home.

I have three final exams: Evidence, on Dec. 11; First Amendment, on Dec. 15; and Criminal Procedure II, on Dec. 18. Some people are done on the first day of exams, having turned in papers or finished take-home tests early. Others, like me, will remain in the law school on the last afternoon of the exam period. My Crim Pro professor, a federal magistrate judge, assured us that exam scheduling was not within his ... ahem, jurisdiction. Anyway, it's fine with me. I like the spacing.

As a brief reprieve from studying, I'm privileged to be on a stellar intramural floor hockey team. We went 4-0 in the "regular season" and won our first-round playoff Monday. The semifinal is at 6 tonight, and if we win, the final is at 8. If we advance, we're likely to meet the W&M undergrad hockey team. Hardly fair, if you ask me, but if anyone can match their competitiveness, it's law students in finals mode.

First draft, done

2008-11-23T11:23:00.003-05:00

Today I finished the first full draft of my major legal writing project, my law review Note. It's 39 pages long so far, though it's likely to get longer when I return to it next semester. Without boring anyone (or pre-empting myself by writing about it online), I argue that a portion of the Virginia death penalty is unconstitutionally vague and misleading, and that in a recent case, the Supreme Court of Virginia wrongly interpreted two provisions of the Virginia death penalty statute, ignoring both a decision by the U.S. Supreme Court and modern science in the process. Look at me, picking on judges two or three times my age.

The publication process is a long one. There are 39 law review staff members in my class, and we've all written Notes between 5,000 and 10,000 words long. When we return in January, we'll defend them to three-person panels, comprised of 3L editorial board members, who will have read our papers and critiqued them. Then it's back to the editing process, and eventually we'll turn in completed copies. Sometime next spring or summer, a new editorial board will select about six or seven of those 39 Notes for publication in next year's William and Mary Law Review. Those of us who don't get published will have the opportunity to submit our papers to other law reviews and journals at W&M and other law schools.

For now, I'm done! Two and a half weeks until finals. This semester has gone so quickly.

First Annual Innocence Symposium

2008-11-15T17:45:00.003-05:00

Exonerees, attorneys, journalists, and politicians converged at the law school to express their unwavering, unanimous support for the wrongfully convicted, as W&M Law’s Students for the Innocence Project and the Black Law Students Association co-sponsored the First Annual Innocence Symposium on Friday, Nov. 14.

“No one really knows about the innocent, the people who are crying for help,” said Marvin Anderson, who was exonerated in 2001 after spending 15 years in prison and four years on parole for a crime he did not commit. “No one really knows about the exonerees, and that’s because the states do not want to admit there’s something wrong.”

An afternoon full of dynamic speakers and an evening of jazz by exoneree Michael Austin drew between 60 and 80 people to the first Innocence Symposium held at W&M Law.

Anderson’s mother, Joan, said that Marvin was the 99th person exonerated since the introduction of DNA evidence. To date there have been 223 such exonerations in the United States, exposing a wide range of flaws in the American criminal justice system.

Olga Akselrod, a staff attorney at the Innocence Project, works on innocence cases involving DNA evidence. She said the most common causes of wrongful convictions are mistaken eyewitness identifications; limited, unreliable, or fraudulent science; false confessions; and informants who provide bad information. Akselrod said recent studies show that wrongful convictions comprise between 3 and 5 percent of all convictions in the U.S.

“If we were going to be getting on an airplane with a 3 to 5 percent chance of crashing, we’d be concerned,” she said. “And yet, that appears to be where our criminal justice system is.”

The wrongfully convicted come from all over the country, Akselrod said, including 10 exonerees in Virginia alone.

Margaret Edds, who retired from the Virginian-Pilot last year after 30-plus years in journalism, spoke about the infamous yet ongoing story of the Norfolk Four, a quartet of sailors whose lives have been devastated by convictions for a rape and murder they almost certainly did not commit. DNA evidence at the scene matches only Omar Abdul Ballard, who confessed to the crime and is serving two life sentences for it. But despite overwhelming evidence that Ballard acted alone, three of the Norfolk Four remain in prison and the lives of all four have been ruined.

Although four former Virginia attorneys general, dozens of attorneys and retired judges, and most recently, 30 FBI agents, have spoken out on behalf of the Norfolk Four, prosecutors maintain that Ballard acted with the sailors in raping and killing Michelle Moore-Bosko on July 8, 1997. Clemency petitions, filed in 2005 during the waning days of Gov. Mark Warner’s tenure, remain before Gov. Tim Kaine.

“For Kaine to join in the proclamation of the Norfolk Four’s innocence would cement an indictment of the criminal justice system,” Edds said. Still, Edds believes that as the governor enters his final year in office, he may be willing to spend the political capital necessary to free the four sailors. “It’s time for us now to deal with it and clean this up.”

State Senator Henry Marsh helped lead the charge in the General Assembly to pass a DNA exoneration bill in 2001, eliminating the need for executive clemency in some DNA cases.

“To me, the idea of an innocent person being in prison for a crime they didn’t commit is unthinkable,” Marsh said. “It’s bad enough being in prison for something you did do.”

Steven Benjamin, a Richmond attorney who serves on the Virginia Board of Forensic Science and the Virginia Indigent Defense Commission, spoke of the wide-scale DNA testing ordered by Gov. Warner in 2005. The former governor ordered that DNA evidence of thousands of Virginia prisoners be tested after a 2004 random sampling of 31 pieces of evidence exonerated two more of Virginia’s inmates. Benjamin said that the odds that two of the 31 random samples would result in exonerations were “absolutely staggering.”

Still, Benjamin said, three years after the testing was ordered, only 34 more samples have reportedly been tested, and the $1.4 million budgeted for the wide-scale testing is gone. Speaking for himself and only himself, Benjamin suggested that the private lab contracted to do the testing and the Virginia Board of Forensic Science share the blame for a project that has stalled without much public explanation.

“We do not trust things that are done in secret,” he said. “If you are acting as if you have something to hide, then you must have something to hide. We have got to return to the accurate and reliable determination of the truth. We should not be afraid of the truth.”

Concluding the day of speakers was Bernie Henderson, a senior deputy in the Office of the Secretary of the Commonwealth. He explained Virginia’s policies on executive clemency, which derive from the English common law, are mostly unwritten, and can change depending on who sits in the governor’s office.

Several exonerees and members of the Innocence Clinic at the University of Virginia attended the symposium.

Marvin Anderson, whose parents sat in the front row as he spoke, described his experiences both before and after his exoneration.

“You try not to focus on where you are, but on where you want to be,” he said. “No one knows exactly what a black hole looks like. But it’s a black hole with no bottom, when you know you did not commit a crime and no one believes you.”

Anderson, 44, said that the 2008 presidential election was his first opportunity to vote—26 years after his conviction and seven years after his exoneration. A certified welder and owner of a trucking company, he is attending night classes to become a firefighter, which he has wanted to do since he was a child.

“I am living my dream,” Anderson said.

If you have questions about the First Annual Innocence Symposium or would like to attend a viewing of the recorded event, please email wmsfip@gmail.com.

Redistributing the wealth

2008-11-11T10:20:00.003-05:00

The self-described conservatives, libertarians, and Republicans here at Marshall-Wythe (and there are many) keep rekindling the phrase "redistributing the wealth," in relation to President-elect Barack Obama's middle class tax cut. One classmate of mine even managed to mention it during Evidence class this morning, in response to the professor's question about self-incrimination. I missed how those two concepts, wealth redistribution and self-incrimination, had anything to do with each other. Perhaps someone should ask Joe the Plumber.

Recall that it was Obama's conversation with Joe the Plumber in which Obama used the phrase, "spread the wealth around." Not long after that, conservatives (led by Matt Drudge) dug up this 2001 interview that Obama gave to WBEZ radio in Chicago, in which he talked about the Warren Court of the 1960s, which by Obama's account, did not engage in much "redistribution of wealth." For a much more academic discussion of this than I'm capable of, read this fascinating account of Obama's 2001 remarks. Obama's conclusion, as documented in the 2001 interview, is that redistributive change is not possible (or necessarily desirable) through the courts. One cannot know for sure if that is Obama's driving factor in leaving the Ivory Tower of academia for the political arena, at least not without asking him, but I tend to doubt it.

So what would Obama do with our wealth (now that we've lost $1 trillion of it)? For starters, Obama's middle class tax cut (which, by the way, he's been pitching since the Pre-Caucus Era) can be found here. Obama's plan, if enacted by Congress, would cut taxes for families making less than $250,000 a year (e.g., Samuel J. Wurzelbacher, my parents). For the wealthiest 2% of Americans, those making more than $250,000 a year (see the Clintons, Bushes, Obamas, McCains, et al.), taxes will increase to the same levels they were in the 1990s. This will have the effect of increasing, not redistributing wealth, to the vast majority of us. We'll be able to save it, or at least pay off some debt, while richer Americans will go back to paying a larger share. According to a few of these overwhelmingly rich Americans, that's quite alright.

Instead of all this talk about "redistributing the wealth" and socialism, then, perhaps we should spend a little more time debating the merits of a middle class tax cut, because that's what Obama wants to do while in office. It might not get as many laughs in Evidence class, but it's a more fruitful discussion.

Sorting through it all

2008-11-10T10:56:00.006-05:00

I was heartened this morning to find that the #1 most emailed article on NYTimes.com was a profile of Nate Silver, founder of FiveThirtyEight.com. I followed 538 religiously this campaign season. As the article today points out, Silver, a 30-year-old numbers whiz, started the website partially out of frustration with the mainstream media's treatment of polling data—i.e., the fact that the media often treat unequal polls equally. At FiveThirtyEight, Silver instituted a poll ranking system, so that trusted polls like Quinnipiac and Rasmussen get the credence they deserve, while obscure polls using faulty sample groups get their come-uppins. When a poll was published that suggested some shifting trend, Silver would delve headfirst into why the poll got the result that it did. (See "Anatomy of a Polling Disaster.") Often, he would find some monumental error with the way the poll was conducted, and he would give that poll a poor ranking. From this kind of astute analysis, Silver made it far easier to make sense of the way public opinion of the presidential election was progressing. Previously, when the media found one of these faulty polls, which Silver calls "outliers," they would trumpet it as a shift in the direction of public opinion (sometimes a self-fulfilling prophecy). Now, such polls are relegated to the scrap heap, and future polls from those organizations are treated with deserved skepticism.

I don't watch much TV anymore, so I didn't realize that Silver had also gained significant attention as a pundit, but it makes sense. I'm happy about this for two reasons. First, he's young, and it's fantastic to see that young people doing creative things get rewarded. Second, and more importantly, we live in a new internet age, in which more and more information is constantly being tossed at us from all directions. Even the most educated people get thrown off by this constant stream of data, thus it's extremely helpful when someone like Nate Silver comes along, with a scientific or mathematical solution to sort through it all. Silver's increasing popularity bodes well for people like him, and for the education of society generally.

Finally, I'm sympathetic to Silver's point about what happens to his website, now that the election's over. He intends to continue using FiveThirtyEight to predict congressional votes on Obama initiatives, but he admits that the popularity of his site will likely dwindle.

“That’s the paradox,” [Silver] said. “You would think that you elect this guy and you want him to effect change, and then he gets elected, and people don’t care about bills being passed.”

Touché, Nate. Isn't a lack of curiosity how we got into this mess in the first place?

Our New President

2008-11-07T14:31:00.005-05:00

This week's big event, the election of President Barack Obama, have meant so much to so many for reasons too numerous to count. One New York Times story on Wednesday aptly described it as a moment of "national catharsis."

It’s been a long time coming, but tonight, because of what we did on this day, in this election, at this defining moment, change has come to America.

To help do our part, as law students, my friend Aaron recruited a group of us to serve as the Obama campaign's official poll watchers on Tuesday. Virginia law allows for one observer from each campaign on Election Day, both inside and outside the polling place. So 50 of us law students and professors awoke early, some as early as 3:30 a.m., and traveled to precincts throughout Hampton Roads, from Virginia Beach to Newport News to Williamsburg and James City County. We witnessed history first-hand, as thousands of first-time voters, many of them black, helped turn Virginia blue for the first time since 1964.

When I arrived at 5:30 a.m., in the darkness and the rain, a line of more than 200 people had formed inside the hallways of Christian Life Church. Polls opened at 6 a.m., and it took an hour and a half before everyone in the original line had cast a ballot. By day's end, nearly 80 percent of the precinct's registered voters had cast a vote for Obama or Senator John McCain.

The crowning moment of my day came in the early afternoon, when an Obama volunteer, a middle-aged woman ripe with enthusiasm, accompanied an elderly black woman to the church. As the elderly voter showed her ID to poll workers, the volunteer told me that the woman was thrilled to have her chance to vote in this election — it was the first time she'd ever voted. After the elderly woman slid her ballot into the optical scanner, she stepped to the middle of the room and stopped. There, she threw both her hands in the air and exclaimed, "I have never felt so good in all my life! This is the first time I've ever voted!" Everyone in the room, perhaps 15 or 20 people, burst immediately into raucous applause. Tears streamed down the face of the Obama volunteer, as the elderly woman came to embrace her. The first-time voter proceeded to hug every person in sight as she made her way out of the church.

Stories like this one have come from all parts of the country, stories that serve to heal us and give us hope that this week, we live in a new kind of America — the kind of country that embraces all people equally. There are also stories that just feel good, like this one, from a friend of a friend who was at Grant Park in Chicago, where Obama made his acceptance speech:

It was totally amazing, but here's the moment of the night:

CNN was playing on the huge screens in the park. We watched as Wolf Blitzer called the states and the huge panel of pundits pronounced on whatever struck their fancy. Some time after Ohio was called, they turned the volume of the TVs down and shrunk the image of CNN to show pictures of the crowd that was present at Grant park. There was a whisper behind us that several networks had called the election for Obama. I was with a group of political scientists and since all of our phones were down and we could not confirm via the blogs and election maps that we've all become addicted to, we doubted. The crowd murmured and shifted.

Then, an unassuming skinny young white guy in a black hoodie came out onto the stage and said into the microphone, "Mic check 1, 2, 3. Mic check 1, 2. Mic check for the President Elect of the United States of America."

The crowd exploded.

The moment in Grant Park must have been the pinnacle of public euphoria, but since then, I know personally of many people who have had their own private moments of pure emotion. My own came on Wednesday afternoon. Still exhausted from a 14-hour day at the church (alright, and a full night of celebrating), I turned on the TV and caught a piece showing reactions to the election around the world. And there, just two days after Barack Obama's white grandmother had passed away in Hawaii, was Barack Obama's black grandmother, in Kenya. Sarah Obama's entire village was celebrating, as were young people in Greece, Israel, France, and even the children at Obama's childhood school in Indonesia. My girlfriend's friends from Canada and Australia called her this week to say that if they could have voted for Obama, they would have.

As I watched these scenes from around the world, the joy and relief overtook me, as it has so many people this week. Jesse Jackson Sr., whose tears were caught on camera at Grant Park Tuesday night, said that he cried for the happiness that Obama's accomplishment brought him, but also for the sad fact that Civil Rights-era people like Medgar Evers and Martin Luther King Jr.—the ones who made Barack Obama possible—weren't still alive to see this day.

Thank goodness for them, and all those who helped make Tuesday possible. Now there is much work to be done, and it will take many hands to rebuild this country. As our new president said himself: "to those Americans whose support I have yet to earn – I may not have won your vote, but I hear your voices, I need your help, and I will be your President too."

We have our country back, all of us. The change is palpable—it fills the spirit and brings a smile to faces all over the world. I like to think we owe it to people like the elderly black woman in James City County, Va., who on Tuesday mustered the courage to cast a vote for president for the first time in her life. We may live in the same country that we lived in on Monday, but because of people like her, today we live in a nation that is forever changed.

Stay issued for Troy Davis!

2008-10-24T12:48:00.005-04:00

The 11th Circuit Court of Appeals on Friday issued a stay of execution for Troy Davis! The stay comes just three days before Davis was scheduled to be executed.

“Upon our thorough review of the record, we conclude that Davis has met the burden for a stay of execution,” the court said in a ruling issued by Judges Joel Dubina, Rosemary Barket and Stanley Marcus.

http://www.ajc.com/metro/content/metro/stories/2008/10/24/troy_davis_stay.html

CNN reports that the stay has been issued for 25 days. The AP reports that a three-judge panel of the 11th Circuit has asked lawyers from both sides to file new briefs, to see if Davis can meet the "stringent requirements" needed for a new round of appeals.

The stay comes a day after worldwide protests (including our humble gathering of 45 in Williamsburg) organized by Amnesty International.

Woohoo!

We are all Troy Davis

2008-10-23T23:00:00.004-04:00

We rallied for two hours this afternoon at the intersection of Richmond, Jamestown and Boundary (Confusion Corner) in Williamsburg this afternoon, informing people of Troy Davis's plight. We collected more than 100 signatures, which we will fax to Amnesty International. That organization will gather signatures from around the world and send them to the Georgia Board of Paroles and Pardons, which is the only hope Davis has left for clemency.

If one innocent man dies, a piece of all of us dies with him. We are all Troy Davis.

Standing Firm for Justice

2008-10-22T09:33:00.005-04:00

This week some friends and I have helped organize a local protest and rally for Troy Davis, a Georgia death row inmate who's facing execution on Monday, Oct. 27. Here's a summary of Davis's case, from Amnesty International:

Troy Davis was sentenced to death for the murder of Police Officer Mark Allen MacPhail at a Burger King in Savannah, Georgia; a murder he maintains he did not commit. There was no physical evidence against him and the weapon used in the crime was never found. The case against him consisted entirely of witness testimony which contained inconsistencies even at the time of the trial. Since then, all but two of the state's non-police witnesses from the trial have recanted or contradicted their testimony. Many of these witnesses have stated in sworn affidavits that they were pressured or coerced by police into testifying or signing statements against Troy Davis.
One of the two witnesses who has not recanted his testimony is Sylvester "Red" Coles – the principle alternative suspect, according to the defense, against whom there is new evidence implicating him as the gunman. Nine individuals have signed affidavits implicating Sylvester Coles.

To recap — there is no physical evidence implicating Davis; no murder weapon was ever found; seven of the nine witnesses who originally testified against him have recanted; and of the two witnesses left, one was the principle alternative suspect. Moreover, Georgia is notorious for obtaining wrongful convictions in capital cases; there have been six exonerees in the state since the death penalty was reinstated in 1976.

The murder occurred the morning of Aug. 19, 1989, when Sylvester Coles began harassing a homeless man in Savannah, Ga., while Davis and others watched. Officer Mark MacPhail responded to the homeless man's pleas for help, and was shot dead with a .38-caliber pistol. The next day, Coles and his lawyer approached police, hoping to exonerate Coles and implicate Davis in MacPhail's death. Coles and Davis are both black men of virtually identical height and weight. Davis, maintaining his innocence, surrendered to police, in hopes that the justice system would sort out the situation.

It did not. Nineteen years later, Davis — quite possibly, an innocent man — is just a few days from death. The Supreme Court of the United States last week denied Davis's final appeal, despite the recantations of seven witnesseses. As so often happens in capital cases, the wheels of death started turning, and have become virtually impossible to stop. Davis's last hope rests with the Georgia Board of Paroles and Pardons, which could grant him clemency before the execution on Monday.

This is not happening in some Third World country. This is the American South. It is despicable, and an embarrassment to our nation.

Tomorrow from 4–6 p.m. we will rally outside the Wren Building on the undergraduate campus of William & Mary, one of many such protests held throughout the world for Troy Davis. Keep him in your thoughts and prayers.

No Confidence

2008-10-15T16:42:00.004-04:00

Since I started law school more than a year ago, it has become clear to me many times that this place, this experience, can break your confidence. We are imperfect, prideful souls, we law students, and law school aims to crush our spirits. We can't let it, of course, but despite our best efforts, we get down on ourselves again and again.

Normally I use this blog to speak for myself, but part of the desolate feeling I'm describing comes from the unnecessary loneliness of these crushing blows to our self-confidence. I know better — I know I am not alone. I know this happens to all of us. With a simple Google search, I found this blog, from "Proto Attorney," a self-described 29-year-old 3L "at a mediocre law school." Her blog entry is titled, "Confidence." It reads, in part:

For the past two years of law school, I've really felt all along that I just don't know enough. I don't feel that in any of my classes, even the ones I got good grades in, that I fully grasped all of the concepts of that area of law. Some of them, I'm pretty sure I didn't grasp a single concept of the law.

Proto Attorney, Confidence, June 1, 2008, at http://attyworkproduct.blogspot.com/2008/06/confidence.html.

This sounds about right. Despite the magnificent amount of information we learn each semester, most of us also encounter seemingly infinite setbacks. Many are small, and go by virtually unnoticed. A job application sent to a distant state, and no reply received: no big deal. A professor finds it necessary to correct the recitation of facts I give in class one day. Eh, I'll get over it. A motion argument, weakly argued before a fellow student. Better luck next time.

But other stumbling blocks aren't so easily reconcilable. A tryout for Moot Court, Trial Team or Law Journal, unsuccessful. Ouch. An interview with a dream employer, fumbled. Crushing. A grade of B- for a class in which an A or A- seemed attainable. Heart-wrenching.

Oh, these things don't matter, you say. No? Ask around. Ask a professor if grades matter. Ask a more seasoned law student if Moot Court or Journal experience counts when looking for a job. And ask yourself if what job you get matters.

Of course all these setbacks merely pose temporary obstacles. One can recover from each and every one. But the cumulative effect can and does create a sense of defeat in many of us, a sense that we really don't know what we're doing, and that we may never quite know. This is not comforting, and it produces some predictable reactions, to ease the cognitive dissonance of wanting to be successful — of wanting to be seen as being successful — and the reality of failing on a regular basis.

Some law students project false confidence. Most of us probably do it without thinking. We've always been good before, so we must be good now, even if our grades and experiences here don't bear it out.

Some law students — many law students — become depressed. "Studies have shown that law students suffer from clinical stress and depression at a rate that is three to four times higher than the national average." Herbert N. Ramy, Student Depression Becomes an Issue of Faculty Concern, available at http://www.abanet.org/lsd/studentlawyer/apr05/opinion.html.

Some law students, by necessity, lessen the blow of failure by shifting the blame. Didn't do well in Contracts? Must have been the professor. Some practice schadenfreude, to the detriment of humanity. Another way to cope is to discount the meaning of that activity at which we have failed: Didn't get appointed to Honor Council? Don't worry, they don't do anything valuable, anyway.

But even those of us who engage in necessary rationalizations strive to improve, at least where improvement is possible. If an interview doesn't go well, we prepare our best for the next one. If we don't make one team, we try harder in the next competition. If we don't do as well on a final as we'd hoped, we may talk to the professor to find out what went wrong, and how to fix it before the next one.

If we make it through law school with our confidence intact, it will be no small feat.

My Vote, Counted

2008-10-15T16:35:00.003-04:00

I voted yesterday. I walked into the James City County government complex with my Virginia voter registration card in my wallet, filled out an absentee ballot application in about three minutes, and a government worker handed me a ballot. After I made my choices with a felt tip marker and slid my ballot into the optical scanner (I was already voter #737, exactly three weeks before the election), I walked out to a sunshiny day, grinning from ear to ear. Democracy has never felt so good as a vote for Barack Obama.

Days Not Made for Basements

2008-10-12T11:57:00.002-04:00

A short while ago, as I entered a virtually empty library on the Sunday morning of Fall Break, I had what I can describe only as an existential moment. "Why am I here?" I asked a lonely fellow law student, who was sitting at the reference desk. "Why am I here?" she replied.

The short answer, of course, is that I need to do work for my journal, work that will take several days to complete, as a Wednesday deadline looms. The long answer can be found in my last post, in which I described why I came to law school in the first place.

Yet these answers do little to obscure the beautiful Virginia sunshine that streams through the window near my desk in the lowest floor of the Law Library. I am here because I want to be, buried in books and papers and legal research. But I would very much like to be outside, enjoying another amazing fall day.

Equal Justice Works

2008-10-09T19:35:00.006-04:00

Someone at Equal Justice Works, the organization hosting the Career Fair I'm headed to this weekend, found my blog and asked if I would write a guest post for their blog, http://equaljusticeworks.wordpress.com, about why I came to law school and why I'm looking for a public interest job. He gave me permission to post what I wrote on my blog as well, so here it is:

Like many other law students, this weekend I will head to the Equal Justice Works Career Fair in Washington D.C., hoping to get a job offer from a fantastic organization. Although many of my friends' job searches are drawing to a close, as law firms make their offers to future summer associates, my quest to find public interest work is likely to last a while longer.

A second-year law student at William & Mary, I moved a thousand miles from Iowa to Virginia to study law because I was frustrated with our federal government and the effects of its ill-conceived actions (and inaction) on the people and places I know and love. Stories of secret CIA prisons in Europe, enemy combatants held without respect for habeas corpus and legal memos purporting to justify torture infuriated me. Rather than surrender to apathy, I decided to go tens of thousands of dollars in debt to get the intellectual tools I would need — a legal education — so that I could someday hope to improve our broken government.

Until a few weeks into my first year, it had not really occurred to me that other people come to law school to work for private law firms, where they can make more than $100,000 a year. Although I obviously see the upside of working for a firm, I had never considered that route. Though I briefly pondered applying at a few firms, prompting laughter from a trusted friend who knows my interest in public service well, I decided to stick with government and non-profit organizations. Some of my best friends at law school will work at firms, and many will undoubtedly do wonderful things to further the public good. Nevertheless, like many of the law students I expect to meet this weekend, the firm route is not for me.

When law school gets hard, which for me it often does, I have to think about why I came here — why I moved a thousand miles from my family, friends and home. It is the hope that someday I can make use of the good fortune I have had, of the many opportunities that have landed on my doorstep. I feel an enormous sense of gratitude, and with so many problems out there to solve, I want to do the best I can to help. Finding a job doing public interest legal work is the best way I know to accomplish that goal.

5/12ths of the way

2008-10-08T16:52:00.002-04:00

Fall break is this weekend, which means I'm halfway through my third semester of law school, or 5/12ths done with the whole adventure. (Hey, that's complicated math for a law student.) So far, so good. Hanging in there, which is probably what I'll keep saying until I pass the Bar exam.

Most of my classmates (and I) are spending a considerable time thinking about jobs for next summer, when we're not reading for class, cite-checking, doing Note research, volunteering, organizing some event for our student groups or watching presidential debates. As I may have already mentioned, I did not apply to any law firms — it's just not what I came here to do. Those who did apply to firms have been flying around the country or spending long weekends driving to and from D.C. I believe the process is drawing to a close. For many seeking public interest jobs, like me, the interview process is just beginning. So far, I've had two interviews with federal government agencies, one of which picked somebody else for the job. This weekend I'll attend the Equal Justice Works Job Fair in D.C., where I have a handful of interviews with non-profit organizations like the ACLU. If all goes well, I hope to have a job before Christmas. If not, the job search will continue.

The weather in Virginia this time of year is incredible. It seems every day is sunny and 75 degrees. All the cars have a thick layer of condensation in the morning, and fog rises slowly from Lake Matoaka as I pass it on my way to school for 8:30 Evidence. Some professors have started to ban laptops in their classes, due to distractions from class discussion, which has had the unintended consequence of making me realize the obscene amount of time I spend in front of my computer. As a result, I spend as much time as I can reading outside and taking notes the old-fashioned way: on paper.

My roommate's weekly poker game, $5 buy-in, has become a sensation this year, drawing 10-15 people each Wednesday night. Ed sends the invitations via Facebook, which, aside from cheap alcohol, seems to be the most effective tool for organizing law students. Strange, but true.

Back to work. If I haven't talked to you lately, call or send me an email! After my interviews in D.C. this weekend, I'll be working on my Note and will desperately need some breaks from the library.

Restoration of Voting Rights

2008-09-28T11:45:00.004-04:00

Our fledgling chapter of the American Civil Liberties Union at the W&M School of Law has undertaken a project to restore voting rights to disenfranchised felons. I had planned on writing a lengthy post on this because of my involvement in it, but a fellow law student has already done a spectacular job. Please, please read this post to find out more.

Here's a brief summary. After the 15th Amendment was passed, giving blacks the constitutional right to vote, Southern states enacted Jim Crow laws, designed to keep blacks from actually voting. One of the few ways that states found they could legally keep blacks from voting was if they enacted felon disenfranchisement laws. These laws say that after a felon has served his time in prison, he still cannot vote. Although African-Americans represent only about 12.5% of America's population, they make up about 48.5% of its prison population. So, felon disenfranchisement laws, which are at best arguably constitutional, have proved an effective method of suppressing the black vote.

Today in Virginia, which is one of just two states (Kentucky is the other) that disenfranchises almost all felons for life, there are more than 377,000 disenfranchised felons. Of these, more than 208,000 are African-American. This is an abomination. Virginia's laws must be changed.

Our project aims to help disenfranchised voters get their rights restored. This is a two-fold process. First, we're going to do what we can to help people under the current Virginia laws, which allow most disenfranchised voters to petition the governor. Second, we advocate passage of legislation that will bring Virginia into line with the 48 states that do not disenfranchise felons for life. Our hope is that Virginia will follow the lead of Florida, which has recently made huge strides in restoring voting rights.

Ideally, all citizens will get their voting rights restored upon finishing their prison sentences. Until that day comes, there is much work for us to do.

UPDATE: The Richmond Times-Dispatch published this article about felony disenfranchisement today, noting Virginia's progress under its last two Democratic governors. The story also mentions one unfortunate but true statistic: according to the Sentencing Project, roughly 5 million voters nationwide will not be able to vote in this year's presidential election, because of felony disenfranchisement laws.

Fighting over narratives

2008-09-27T15:54:00.005-04:00

Yes, I watched the debate, though like most American voters, I watched it knowing that hardly anything could be said that would change my mind. I have supported Barack Obama's candidacy since February 2007, at the very latest, and following his speech at the 2004 Democratic National Convention, at the earliest. Barring some Nixonian sweat-fest, an Al Gore sigh or an intellectual perambulation of Kerry-esque proportions, I was not going to be disappointed in Obama's performance last night. And even if I had been — even if I thought he had lost (which I don't) — I'm still going to vote for him.

So it's with some interest that I read this story, which describes the battle for the narrative. That is, which campaign can say more persuasively that its candidate won, why, and how the "why" fits into a compelling story. John McCain is a maverick. Barack Obama is a change agent. John McCain has the experience to get the job done. Barack Obama has the superior intellect and judgment, and won't invade countries whimsically by letting his emotions get the best of him.

As the NY Times article above details, the Obama campaign is fighting to portray McCain as out of touch with working Americans, saying he talked for 45 minutes and didn't mention "the middle class" once. Meanwhile, the McCain campaign is working to portray Obama as lacking fight, saying he spoke for 45 minutes and didn't once mention "victory" in Iraq.

Republicans are betting on this narrative: that Americans will believe that Obama is a sissy; that he doesn't care whether we win or lose the war, that so long as we pull out of Iraq immediately, the world will be better off; that Obama would rather talk to our enemies than fight them, and that this runs counter to the strength Americans demand of their leader.

Democrats are betting on this narrative: that Americans will believe that John McCain is a career politician who has had 26 years to do something for the middle class and hasn't delivered, that he, his $500 shoes and his billionaire wife know and care more about tax cuts for the rich than they do about health care for working people; that McCain would rather fight an ill-begotten war to the finish, whatever the consequences, than bring that war to an end; and that America's standing in the world, our ability to form and lead international coalitions, matters a whole heck of a lot more than looking tough.

There are many more narratives at work, to be sure. I've just picked these to illustrate the point. However the debate went, these were the storylines that the campaigns were going to seize upon the morning after. The war of words matters. Whoever claims the winning narrative will most likely win the election. The race is surely on to convince that small slice of the American electorate that is still, as Wolf Blitzer of CNN put it last night, "persuadable."

If you're one of these people, I've got a good narrative for you.

Guest post: Making Excuses for Men

2008-09-22T15:58:00.003-04:00

I intend to write more about the social aspects of law school because the dynamics around this place are nothing like I've ever experienced. In the meantime, my friend Janice has given me permission to share this piece, which she first posted on Facebook over the weekend. It stands on its own.

To all the smart, funny, kind, supportive, caring, strong, successful, accomplished, witty, unique, empathetic, resilient, talented, interesting, and (the list could go on and on) indefatigable women out there:

He’s just not that into you.

I haven’t read the book. I don’t need to immerse myself in self-help literature. My phenomenal women, what we need to do is easy in theory, and for some reason, incredibly difficult in practice: accept the simple truth. And the simple truth is, if a man truly wants to be with you, he will be with you. In fact, he will do whatever it takes to be with you. He will be with you to the point that you will want him to go away.

He will initiate conversation and contact. He will listen. He will respond to your phone calls, text messages and emails. He won’t, and shouldn’t, be a lap dog. He will be disagreeable, argumentative, honest, forthright, communicative and exasperating. He’ll want to play Wii and hang out with his super-masculine friends. He will, above all, STILL make time to be with you…if he’s into you. He will disagree with you while you’re cuddling on the couch; he will argue with you when you’re holding hands; he will be honest with you when he calls you on the phone; and he will exasperate you by leaving his stuff at your apartment.

He will NOT require that you make excuses for him, or provide him silent justification for his behavior. “He’s probably busy.” “He probably left his phone somewhere.” “He’s probably sleeping.” “He’s probably studying.” “He’s probably talking on the other line with his grandma.” “He might not have gotten my message. Maybe I should call again…”

“He likes me, but he’s afraid of commitment.” “He’s afraid of his feelings for me.” “He probably likes me TOO much, and it scares him.” “He probably doesn’t want to come across as too interested, so that’s why he’s not calling me back.” “He SAYS that he likes me.” “Why would he be so sweet to me if he didn’t like me?” “He is definitely playing hard-to-get, but he’s totally into me.” "He says he doesn't KNOW if he wants to be with me, but that means there's still a chance, right?"

“His phone MUST be broken.”

No. No. No. His phone is not broken, he definitely got your messages, and he’s definitely not studying. He’s actually not doing anything at all. He’s not calling you and he’s not spending time with you because HE’S JUST NOT THAT INTO YOU. In fact, he’s probably actively avoiding you.

We need to stop making excuses, my friends. If he’s not calling, it’s because he’s not into you. If he’s not making a commitment, he’s not into you. If he’s not in a relationship with you, he doesn’t want to be in a relationship with you. If he doesn’t acknowledge you, he doesn’t care. Men know it, and women know it, too, although we constantly want to give the opposite sex the benefit of the doubt. Stop. Recognize the truth: if he wanted ‘us’ to be together, ‘we’ would be together. No games. No hard-to-get. NO "I don't know." No excuses.

Paraphrasing a wise man, I think it’s time to stop thinking about what we want, and instead focus on what we deserve. If we are honest with ourselves, we will acknowledge that we deserve far better than this.

—Janice L. Craft

My first legal publication

2008-09-18T15:48:00.003-04:00

I got word today of my first legal publication. This summer my friend Liz asked me to compile an Election Law guide for Iowa trial judges, as part of a joint project of the Election Law Society at W&M and the American Bar Association. It's not fancy or creative, but I made it.

Visit this link for a schpiel about the project. If you want to see what I did, go to this link, then click on "Iowa Election Law Statutes." The PDF is the one I made, and what Iowa judges will have access to on Election Day this year.

Let's hope there isn't any Election Day confusion in Iowa!

Friends

2008-09-06T00:27:00.007-04:00

Oftentimes in life what makes an experience worthwhile is not the place or the event itself but the people who go through it with you. This has been my experience at law school so far. Without my nearest, dearest friends, I simply would not still be here.

One tidbit about law school friendships generally is that they rarely endure for the three years a person is in school. This is not just my own experience but that of many of people here, who have recognized the same phenomenon. The friends we make in our first few weeks seldom stick with us past the first semester, for one reason or another. Of course this pattern is not unique to law school, but rather to youth, which Aristotle noticed a couple thousand years ago:

It would seem that the friendship of the young is based upon pleasure; for they live by emotion and are most inclined to pursue what is pleasant to them at the moment. But as their time of life changes, their pleasures are transformed. They are therefore quick at making friendships and quick at abandoning them; for the friendship changes with the object which pleases them, and friendship of this kind is liable to sudden change.

ARISTOTLE, THE NICOMACHEAN ETHICS 259 (J.E.C. Welldon, trans., Prometheus Books 1987).

Although this phenomenon of transitory friends has, to a large extent, happened to me, I have also been exceedingly lucky: I met two of the best friends I've ever had in the opening days of my first year here. We all grew up in small towns, though in different parts of the country. We have all spent considerable time doing one kind of public service work or another. The three of us have pulled each other through tough times and celebrated successes. We've also celebrated for no reason at all, which must be a sign of good friendship. To find friends like these moves life beyond bearable, to fulfillment.

The perfect friendship or love is the friendship or love of people who are good and alike in wishing each other's good, in so far as they are good, and they are good in themselves. But it is people who wish the good of their friends for their friend's sake that are in the truest sense friends, as their friendship is the consequence of their own character, and is not an accident. Their friendship therefore continues as long as their virtue, and virtue is a permanent quality.

ARISTOTLE, supra at 260.

Last night during a discussion about job interviews, another close friend of mine said that a lawyer had shared with her a piece of wisdom. When interviewing potential associates, the lawyer will ask whether the student enjoys the law school experience. The answer that lawyer wants to hear is not "I absolutely love it" or "I can't wait to get out." Instead, the best answer is something like, "It's alright. But honestly, I don't care for most of the people at law school. I have about three really good friends, and we stick together."

At the time, I couldn't help noticing that I was sitting with three of my best friends at law school. It was a good feeling, one I plan to continue.

2L year begins

2008-08-26T13:08:00.005-04:00

This is surely the longest I've gone without writing since I started this blog and to be honest, for a few days last week I wondered if I'd ever find the time. Alas, I miss it, the writing, and so I return, for whomever cares to read about my law school experience.

As the old law school cliché goes: The first year, they scare you to death; the second year, they work you to death; and the third year, they bore you to death. I've begun the "work" part, in earnest, and it likely won't let up for many months, if not until the end of my 2L year. Before I say more about this year's workload, let me make one thing perfectly clear, however. This — as in law school, William & Mary, Williamsburg, Virginia — is absolutely where I want to be. I still do not regret my decision to come here one bit. It is not what I expected, of course, because I never could have known what to expect. In any big transition, attitude and the people make all the difference. I am in good spirits and I love my people here, so I remain happy, tough as this year may ultimately be.

This summer I found out that I had made the William and Mary Law Review, the flagship journal at W&M. It is both the most prestigious and the most work. Because of the competitive nature of law school, I might have kept this announcement off my blog but then the administration went and posted our names — all 39 of us — on the front door of the law school. Many of my friends have made one of the four journals at W&M. For us, training began a week ago, and our first cite-check was due today. Briefly, the editorial process works like this:

Hundreds, if not thousands, of authors submit their articles for review by the W&M Law Review.
Our articles editors pore through the articles, and selects articles for publication.
The editorial board divides the articles into pieces for cite-checking.
The cite-checkers (that's us) locate the many sources used by the author. The numbers vary widely, but generally seem to be in the neighborhood of 75-125. We find most of them with online resources, but often the sources are books, journal articles, microfilm, microfiche, newspapers, etc. In those cases, we get the source from our library, the undergrad library or via interlibrary loan.
The cite-checkers make copies of all the sources. This kills a lot of trees, but it's necessary to verify the accuracy of the information in the article.
Where the authors are missing sources, cite-checkers add additional support, retrieving more sources as we go.
The cite-checkers make all other editing and legal citation corrections to the article that we can find.
The cite-check is passed on to the editorial board, and the editors clean up after us.
The ed board consults with the author on the changes.
A new issue is published. (We publish six issues per year, about 2,400 pages.)

Obviously I'm leaving out a few things — for example, I know the ed board does a lot more work than it may seem from what I've written. Overall, I must say that the whole process is way more work than I thought possible but it's also quite new to me, and new things can tend to overwhelm at first. Anyway, my first cite-check is done. The next one starts tomorrow.

The other part of working for a journal is writing a note, perhaps for publication. I'll write more about that later.

Because of journal and the job search for next summer, which is ongoing, I'm taking a lighter class load this semester. I have three classes: Evidence, First Amendment and Criminal Procedure II. The first is a necessary course for the Bar exam, though not technically required by the school. The latter two are constitutional law courses, and should be a lot of fun. I'm excited about all three. Oh, and of course there's Legal Skills — more writing, interviewing, and in the spring, trial practice. In addition, I'll be doing eight to ten hours of research per week for a constitutional law professor.

As for the job search, most people are interviewing at firms. The firms send interviewers to campus, and my friends leave class in suits to go to the library basement, where they sit and chat with lawyers for half an hour, hoping to land a job. Soon, many other 2Ls will be flying to various parts of the country, to do the same. I've decided not to apply to any firms, which was a hard decision but for me, a necessary one. I didn't come to law school to work for a firm; to be honest, when I came here, I wasn't even sure what they did. I want to do public service, that hasn't changed. So I'm applying with federal government agencies, non-profits, public defenders and legal aid societies, primarily in D.C. I've had one interview so far. We'll see.

I have a few other extra-curriculars on my plate, including the spring break trip to New Orleans and the ACLU. I make time for these because I enjoy them as much as anything else at law school.

It's good to be back. I definitely miss some of my friends who graduated, who've all taken the Bar and now anxiously await their results. There's also a new 1L class, including one of my two new roommates. They're probably great people, the 1Ls, but most of us 2Ls will be working too frantically to notice them. That's how it's felt so far, at least.

Now that I'm caught up on the nitty-gritty, hopefully I can get back to more substantive posts about what's happening here. This year will fly, but there's always time to write.

Summer in the City

2008-07-24T20:48:00.015-04:00

With two weeks to go at my internship and classes starting in just about a month, now's as good a time as any for me to reflect on this transformative summer. This has been, in many ways, a summer of firsts — my first summer living in a metropolitan area, my first summer of legal work, my first summer on the East coast and my first summer away from Iowa and all the family and friends I love back home.

I'll start with Iowa because it's been on my mind a lot lately. So many of my friends out here have asked about the floods and what effect, if any, they have had on my family. My brothers and their families, and other family and friends of mine, live in Cedar Rapids and Iowa City. A flood of unprecedented proportion quite literally swamped both cities last month. Though the flood waters did not reach their homes, thank goodness, both my brothers' workplaces were substantially affected. I've posted a picture that my brother Mike took at his office, then sent in an email with the subject line, "Oh, the irony ..." According to a city plan, my brother Dan lives two blocks outside the 500-year flood plain and last month, the flood waters came within about, well, two blocks of his house. These floods, brought on by two solid weeks of rain in late May and early June, were like nothing our state had ever seen. Just as they always do when times are tough, Iowans pulled together and made the best of what for so many was and continues to be an awful situation.

The official nickname of Cedar Rapids is the City of Five Seasons — winter, spring, summer, fall and time to enjoy the other four. (It's a quality of life thing.) But many locals know Cedar Rapids by another name, derived from the presence of an Archer Daniels Midland corn sweetener plant and other odorous industry like General Mills, Cargill and Quaker Oats: the City of Five Smells. Unfortunately, I'm told that in the weeks after the flooding, a different kind of smell — a stench — overtook the others. But this is probably the least of Cedar Rapids' troubles at the moment. FEMA trailers made their way to the area, temporarily, and now there's a hefty cost to remove them. Damage to the central fire station has doubled response times. And down I-380 a few miles in Coralville, mold and mushrooms are still the norm in at least one less fortunate neighborhood. Of course the Iowa floods didn't come close to the same number of casualties as Hurricane Katrina, nor have people been displaced on the same scale. But for a state where agriculture accounts for about one-fourth of total economic output, and when about one-sixth of the people in the second-largest city had to evacuate, these floods are an awfully big deal. Keep the good people of Iowa in your thoughts. They're certainly in mine. They'll persevere, of course. Life is never bad for too long in Iowa. There are just too many good people around.

Good people abound in Virginia, too, and I have met my fair share of them this summer. The group of people I work with at the NoVA CDO are absolutely wonderful. I have made professional connections there, to be sure, but also personal friendships that will last for many years. I have discovered that death penalty defense is human rights work, and the people who do it care just as deeply about the families of the victims as anyone, as well as their clients' families, who suffer from the effects of these tragic crimes in their own sad ways. This line of work takes a special kind of person, one who has great compassion, patience and a willingness to build bridges and establish relationships where they are so desperately needed. I wish I could tell more specific stories, because they are powerful, but doing so could put our clients at risk.

Living near D.C. has afforded me a great many opportunities. I have walked along Georgetown's bustling, chic M Street; watched fireworks on the National Mall; cheered the Washington Nationals at their beautiful, modern new park and done the same for the Baltimore Orioles at their older, classic one; strolled Baltimore's inner harbor and enjoyed the view from its World Trade Center (see photo); laughed at comedians at the D.C. Improv; heard concerts at Wolf Trap and the Nissan Pavilion; applauded Hillary Rodham Clinton at her concession speech; toured the many monuments, memorials and museums of D.C.; even climbed a small, beautiful mountain called Old Rag. I am so grateful to my new friends for getting me acquainted with this wonderful area, which has so much to offer.

This summer has been a time for me to hone both my legal writing and racquetball skills. In each case, one lesson is clear: the more I learn, the more I realize how little I know. It's a familiar lesson that I first encountered nearly a decade ago, when I started studying philosophy. So long as I challenge myself, it's a lesson that endures, wherever life takes me.

I have learned this summer that although I'll always be a small-town kid, the big city is nothing to fear. I love writing in my journal as I take the Orange Line from Vienna to Capitol South, catching a nighttime glimpse of the Iwo Jima Memorial on the way through Arlington, and running up and down the hills of Old City Fairfax. Wherever I go from here, this is one summer I won't soon forget.

Marriage Hypocrisy

2008-07-12T10:32:00.005-04:00

In recent years, social conservatives like the guy who's still president have pushed the tautologous notion that marriage is a union between a man and a woman. This statement is much like the Founding Fathers saying that slaves are the property of their owners, or male lawmakers of the 19th century saying that women don't have the right to vote. Yes, marriage is a union between a man and a woman — because you, the people in power, continue to keep it that way.

But the times, they are a-changing. First Vermont enacted civil unions, then the Massachusetts statehouse legalized gay marriage, then the California Supreme Court held that a law denying gay people the right to marry was unconstitutional, then the new governor of New York said his state would start legally recognizing gay marriages from other states. Young people are so far ahead of their leaders on this issue, it's embarrassing. As my generation grows older, gay marriage will cease being an issue and instead become a nationwide reality.

As if we needed another reminder that Republicans are horribly out of touch with the youth vote, a pair of senators have taken up the fight against civil rights once again, by pushing a constitutional amendment that would enact into law that tautology I mentioned earlier. Here's where reality gets stranger than fiction, though, and where social conservatives really need to learn to recognize irony. The senators co-sponsoring the amendment are (drumroll, please): David Vitter of Louisiana and Larry Craig of Idaho. Last year, Vitter got named as the most famous client of the late DC Madam's prostitution ring, and Craig was infamously caught by police, most likely soliciting gay sex in a Minnesota airport. (Not that there's anything wrong with that. Being gay, that is.)

Hello! These married fools are the guys social conservatives put forward to defend marriage? What a joke.

On the bright side, a constitutional amendment denying marriage rights to gay people has no chance of going anywhere. This nation has a hard enough time amending the Constitution to enact civil rights, let alone to stifle them. As with the fight against slavery and the women's suffrage movement, states led the charge, allowing black people to live free (the northern states, pre-Civil War) and granting women the legal right to vote (in the case of Wyoming, 1869) long before a constitutional amendment accomplishing the same goal was passed. In the case of gay marriage, states are leading the charge — but in the opposite direction of the proposed amendment. Vitter and Craig are hypocrites, pandering to what we can only hope is an increasingly skeptical social conservative base. These two senators have no credibility to lecture Americans — straight or gay — on the sanctity of marriage. Rather, their time would be better spent tending to their own lives, which have no doubt been thrown into tumult by their sad, very public embarrassments. If Larry Craig and David Vitter truly cared about family values, that's exactly what they'd do.

Death is different

2008-07-05T18:13:00.013-04:00

The summer is half over, sadly, but it has been a fantastic one so far. I'm unable to provide too many details about my work, but I will say that I'm getting fantastic experience. Most of my day is spent researching death penalty issues at the request of one of three full-time attorneys in the office. My fellow interns and I then write memos based on our research. The issues we work on relate directly to our office's current cases and clients. I learn more about death penalty law and criminal trials every day. Three big lessons thus far:

1.) It will be a long time before I could consider being a prosecutor. Growing up, I watched with glee as Jack McCoy put criminals behind bars on Law & Order. But that side of the courtroom no longer appeals to me, as I have learned that when it comes to criminal justice, the cards are stacked heavily in favor of the government. Even in a country that purportedly treasures civil liberties as much as any country ever has, the prosecution starts virtually every case with more investigators, more attorneys, more access, more resources, more experience and more procedural favoritism than I ever dreamed possible. Of course, I'm certainly not saying that our slanted system is incapable of justice. Good prosecutors must know of their many advantages, and wield their immense power with care. As for me, though, if I were to start my legal career in criminal work, it would be as an indigent defense attorney.

2.) Criminal law — and particularly capital defense work — takes an extraordinary level of passion, energy and dedication. When a capital trial begins, it is not exaggeration to say that a person's life is squarely in a defense lawyer's hands. Give up, or give a little less than you're capable of, and the outcome is all but certain.

3.) The death penalty is a wretched, expensive, poorly instituted punishment that has certainly outlasted any conceivable use it may have had for civilized society. It is a black-and-white solution in a gray, gray world. We should abolish it immediately, for all crimes. Many people assume that it is cheaper and easier to execute a criminal than to put him in jail for life. Not so. Not even close. Capital trials are often some of the most expensive, most time-consuming taxpayer-funded ventures we have. The Supreme Court has said that "death is different" than any other penalty, and rightfully so. The result of this distinction, however, is that capital trials require more energy and resources than typical murder trials — from the police, the prosecution, the defense team, expert witnesses, the trial court and the appellate courts. But the real cost is the human one, on both the victim's loved ones and the defendant's loved ones. Occasionally there is overlap in these two camps, which makes a lengthy, acrimonious trial all the more gut-wrenching for everyone involved.

Then there's the punishment. What is it supposed to do? Deter criminals from committing murder? Well, it has never done that. Even advocates of the death penalty admit that deterrence is no justification for capital punishment. Is it the only suitable punishment for society's most heinous murders? Consider, for a moment, the alternative: life imprisonment without chance of parole. It is a grim punishment, but one that leaves open the possibility that the defendant could come to terms with what he has done, that he could seek forgiveness and that he could receive it during his lifetime. Or is only God capable of that kind of forgiveness? I think not. Is it supposed to give comfort to the victims' loved ones? This may be the most plausible argument for death, until you say it out loud. If death — if inserting a needle full of poisonous fluid into another person's veins and watching him boil from the inside out is the only thing that gives us comfort — then our society is much sicker than we are willing to admit.

There are more arguments to be made against capital punishment, particularly the discrimination with which it is applied to poor people and minorities. I'll have to save that for another day. For now, I'll leave the subject with the poignant words of Justice Thurgood Marshall:

[T]he American people are largely unaware of the information critical to a judgment on the morality of the death penalty ... if they were better informed they would consider it shocking, unjust, and unacceptable.

Gregg v. Georgia, 428 U.S. 227, 232 (1976) (Marshall, J., dissenting).

Clemency for VA death row inmate

2008-06-10T16:04:00.003-04:00

Gov. Tim Kaine (D-VA) has wisely granted clemency to Percy Walton, commuting his death sentence to life imprisonment.

Virginia's Republican attorney general, Bob McDonnell, said the request should not have been granted, despite accumulating evidence that Walton's mental condition has worsened since he was arrested for the murders, which he committed 12 years ago at the age of 18.

According to a Richmond newspaper, one of Walton's lawyers commended Kaine's action. When asked how Walton would react to the news, he said poignantly that it "won't make any difference to him. He will not know."

We shouldn't execute people like Percy Walton.

Hillary concedes

2008-06-07T17:29:00.006-04:00

This morning at 9:30 a.m. a friend and I got in line outside the National Building Museum, where Hillary Rodham Clinton was scheduled to give her concession speech and offer some level of support for the candidacy of Barack Obama. We stood in line for half an hour, then waited for another two more inside, before the Clintons arrived, at around 12:40 p.m.

The crowd was equal parts women and men, it seemed, most of them donning some sort of "Hillary '08" garb, or at least a sticker or button. My friend and I both support Obama, but we wanted to see a little slice of history — the concession speech of the strongest female candidate ever to run for U.S. President.

Hillary gave a terrific speech. She thanked her supporters and reiterated her goals for improving the country: universal health care, ending the war, fixing the economy, creating jobs, solving global warming. Then she offered her full-fledged endorsement of Senator Obama. At least half a dozen times she told the crowd that we would all have to work together to "Elect Barack Obama." The first time she said it, a woman near me screamed out, "No!" But that woman was the exception. Many of Hillary's remarks, primarily those about her own accomplishments, drew raucous applause. When she encouraged her most strident supporters to "Elect Barack Obama," the response was not as strong. Clearly it will take a while for the nearly 18 million Hillarycrats to follow her lead, but most of them will. She pointed out the myriad similarities between herself and Obama, how they share a common vision for the country and how important it will be for the future of the country that Democrats unite to achieve it. She touched on the importance of Supreme Court nominees, which drew sustained applause.

Hillary then turned to the feminist aspects of her achievements, a point that was well-received by the audience. She talked about the "greatest glass ceiling of them all" — the presidency — and how, with the help of her supporters, there were now "18 million cracks" in that ceiling. She also said that some people will lament her withdrawal from the race and wonder about what might have been. To this she said, "Don't go there." She urged her people to look forward, not backward.

I left the National Building Museum with a strong sense of admiration for Hillary, who stood alone on that stage as a formidable leader. She may have dropped out of the race, but she will be heard from again. She has much to say and much more to accomplish.

First trip to court

2008-06-05T09:47:00.003-04:00

I made my first visit to a courthouse yesterday in Culpeper, Va., as an intern for the Northern Virginia Capital Defender. Here is a news account of the proceedings.

Civic-minded connections

2008-05-21T11:15:00.005-04:00

The human mind, itself a series of connections, tries with all its might to make connections among the many bits of information it examines in the world. The part of our brain that deals with sight is known to fill in the blanks, because our eyes are pixelated; when we look, they do not see every square inch. Similarly, when we read, our minds quickly find the intended meaning of misspelled words or accidentally transposed text. And of course, the configuration of the neurons themselves (from my basic understanding) is a series of electrical flow charts, with new concepts constantly being added in relation to old ones. We know car, then silver car, then Grandma and Grandpa's silver car, then Buick Century, then boat.

In the last few days and weeks I have encountered a terrific series of stories about our country and this election, about how youth are becoming more involved and about how rural people are being ignored. On NPR yesterday I listened to a fantastic discussion of what a next-generation government (namely, an Obama one) might look like, led by the author of a book called Wikinomics. This "Government 2.0" sounded a lot like democracy, and it made me smile.

I am synthesizing all these ideas, looking for the connections. They exist, I am sure of that.

First, there is no question that Barack Obama has tapped into the power of youth unlike any presidential candidate in recent history. I experienced that first-hand on Iowa Caucus night back in January. The young people in the Guttenberg Municipal Building that night were decidedly Obama supporters and not only that, they were leaders. Three young precinct captains, all of them female college students, wore Obama t-shirts. They were the ones rallying the troops, standing on chairs to count voters, heading to other circles to find potential defectors for the Obama delegation. This was not their first night working on the campaign and it would not be the last; one of them, Liz Smith, has landed a job with the Obama campaign for the general election. I hear she starts in July. This scene, of young people working for Obama, has continued to play out across the country:

According to CNN exit polls in the primary states, practically every state - even those the senator fails to win - reflect this trend: In Georgia, for instance, 81 percent of voters age 18-24 cast ballots for Obama. In Wisconsin, it was 79 percent; Utah, 70 percent; Missouri, 69 percent; Alabama, 66 percent; Illinois, South Carolina and Pennsylvania, 65 percent; Louisiana, 66 percent; Tennessee, 56 percent; and New York, 55 percent.

Young people, of course, have different ideas about how government should work than the older people who have traditionally held power. The Government 2.0 discussion highlighted many of these points: that today's young people are more willing to tolerate radical ideas, if only as a starting point for a continuing discussion; that young people tend to see good government as grass roots, with plenty of collaboration, rather than a top-down hierarchy; and, ideologically, young people care far more about healing the environment, finding jobs, making college affordable and ending the Iraq war than they do about fixing Social Security, outlawing abortion and passing constitutional amendments that ban gay marriage.

So what does all this have to do with rural America? In this terrific story by Dee Davis, who once drove John Edwards around rural Kentucky, one can see that the concerns of rural voters are similar to the concerns of youth: the economy, the war and education. Davis correctly and gently criticizes Obama for not actively campaigning in Kentucky (he went only to Louisville and Lexington, the only two counties he won in that state last night). If Obama is to win rural America in November, as some suggest he can, he will have to reach out directly to the 60 million Americans who live outside the city. As Davis notes, and as Thomas Frank pointed out before her, rural voters admire politicians like John Edwards as much or more as they admire Pat Buchanan or George W. Bush. If Obama asks them for their vote, and offers solutions to that great American conundrum, rural poverty, the voters of Appalachia and other rural areas could send that blue state-red state map packing.

Having lived in rural America for the vast majority of my 27 years, I can say that rural Americans, virtually all of them, would appreciate Government 2.0 a lot more than what they've gotten so far. I saw a young man from Kentucky on the news yesterday, sitting with his family on a porch and speaking in a deep drawl. He said that all three candidates are the same, that government won't change until a poor person gets elected. Yet, I also read this terrific story about John Kennedy campaigning for the presidency in West Virginia in 1960:

Kennedy was shaking hands with coal miners in the state one day, when one grizzled old miner held onto his hand and wouldn't let go. "Is it true you're a millionaire's son who never worked a day in your life?" the miner asked.
Kennedy gulped and said, "Yeah, I guess so."
The miner slapped him on the back and said, "Lemme tell you, son, you ain't missed a thing."

Rural Americans, like all of us — especially this generation of young people — want more than anything to be involved, to be part of the solution. Whatever the movement is, if there's a good person in charge, we want to know that he or she knows us and cares about us and will offer a helping hand. In return, we'll do our part. Call it Government 2.0, call it democracy, or call it connecting with the American people. That's what the next president will have to do. It's a connection worth making in every part of this wonderful country.

A community, broken

2008-05-16T14:16:00.004-04:00

The federal government raided a meat-packing plant in the northeast Iowa town of Postville on Monday, arresting more than 400 people, the biggest such raid in U.S. history.

The AP has the basic story here.

Postville, located 35 miles from where I grew up, is an atypical community in our corner of the world. The meat-packing plant is the largest producer of Kosher meat in the United States and from what I've read, produces the only meat that Israel will import from the U.S. As a result of the plant's existence, immigrants from Mexico, Guatemala, Ukraine and Israel have all made Postville home. It is a fascinating intersection of cultures in a mostly white state; several years ago, a University of Iowa professor wrote a book called "Postville: A Clash of Cultures in Heartland America."

The raid has dominated local newscasts this week and everywhere I go, people are talking about it. For those who believe that Iowa is just another one of those bigoted states where people just want to "round up all the illegals and send 'em back where they came from," think again. While that sentiment surely exists, it's not the dominant one I've heard expressed this week.

No, most people are talking about how much damage the federal government has done to Postville. They're also talking about why in the world the company that runs the plant, Agriprocessors, is not being charged with any crimes. Our governor, Chet Culver, and the local U.S. House rep, Bruce Braley, are both inquiring about that as well, which hopefully will produce some results. The immigrants have also filed a class-action lawsuit against the company, which you can read about here.

For every person who was arrested on Monday, there is at least one heart-wrenching story to be told. Perhaps the most telling story, though, about how damaging the raid has been, is about one person who wasn't arrested. It's the story the Postville superintendent of schools is telling, about how his top student had to go into hiding because while the boy's father is a legal immigrant, his mother is not. The Gazette published the story earlier this week.

The superintendent's primary frustration is with Congress, for not doing something about immigration. The strange thing about this issue is that the three remaining presidential candidates and President Bush all basically agree on what needs to be done, though the Democrats' plan would make the pathway to citizenship less difficult for immigrants than the Republicans' plan, by not forcing them to return home after their time as guest workers is over. Regardless, the problem here is clearly people like Rep. Steve King (R-IA), Rep. Tom Tancredo (R-CO), Pat Buchanan and Lou Dobbs, who would rather see us build a giant wall around our country and fence out the Americans who welcome our Latino neighbors.

People who spout anti-immigrant hate always fall on the wrong side of history. We are a nation of immigrants. A wise woman once told me that our willingness to recognize the humanity of all people, to bestow individuals with unprecedented freedom and to open doors to the American dream, is what makes this country so great. She's absolutely right. Let us not forget it.

One year in the books

2008-05-09T14:22:00.002-04:00

That's all she wrote for first year. This morning the majority of the 1L class, including me, handed in our journal packets. A week's worth of schoolwork after finals — not something most of us care to repeat anytime soon. But it's done, and so officially is our first year of law school! It's quite a relief, to be sure.

Try as I might, I don't know that I'll come up with anything profound to say about the first year in retrospect. It was harder than I thought it would be, and not for the reasons I had expected it would be hard. Grading on a curve makes people more competitive, yet we all seek validation from our peers — we want to know that we're on the right track. Friendships change constantly; time breathes down our necks, moving faster than it ever has before. We all think differently now, a progression that's only just begun. We choose our words carefully because we have to. People are quick to point out errors here, to find faults. But it's not a flaw, or at least I don't see it that way; I believe it's of necessity that we parse and issue-spot. As different as our paths will be, those will certainly be our jobs.

I can't say whether I like law school; somehow, it now seems like the wrong question. There is too much going on here to like or dislike it all. But there I go, parsing already. I'll never be the same again. None of us will.

I've packed the bare necessities in my car. Hello, summer.

Voters Who Wear Black Robes

2008-05-06T21:09:00.003-04:00

Some who wear black robes get to vote. Some don't.

You wouldn't know it from recent media coverage, but the Supreme Court continues to hand down decisions and quite often, they suck. Within the last few weeks, the Court upheld an Indiana law requiring all voters to show a photo ID. In a 6-3 ruling, the Court said that the law, which is heavily supported by those (Republicans) who purport to fear voter fraud and heavily opposed by those (Democrats) who actually fear voter suppression. While the proponents of the law could show no actual evidence of voter fraud, a majority of the Court clearly believed them.

Well, nothing like a quick reality check. In the Indiana primary today, a dozen nuns, all in their 80s and 90s, showed up to vote but were turned away — by one of their own! — because they did not have driver's licenses. Moreover, they were denied provisional ballots because it would be impossible for them to get processed by the Indiana DMV within the necessary 10-day period before the state certifies the election. Some of the nuns — one was 98 — showed up in wheelchairs with outdated passports. The story is really quite appalling. Read it here.

I mention the bit about media coverage because of an outstanding study by the Project for Excellence in Journalism. The nonpartisan group does empirical research, tracking which media outlets are covering which stories, and how much. The PEJ concluded that last week, in all the coverage of the 2008 campaign, the Rev. Jeremiah Wright was mentioned in 42% of the stories, while Sen. Hillary Clinton (she's still running for president, folks) was mentioned in 41% of stories. This is troublesome.

According to the PEJ study, of all the stories last week, the campaign ranked first, receiving 38% of the coverage. Understandable, perhaps. Coverage of the Supreme Court, by the way, was 10th, at 1%.

Too bad for the nuns. Like the justices, they wear black robes, too, but I guess their votes don't matter.

Health Care

2008-05-04T08:25:00.013-04:00

The culture, it is a-changin':

WASHINGTON -- Some people marry for love, some for companionship, and others for status or money. Now comes another reason to get hitched: health insurance.

In a poll released today, 7% of Americans said they or someone in their household decided to marry in the last year so they could get healthcare benefits via their spouse.

Ricardo Alonso-Zaldivar, Getting married for health insurance, L.A. TIMES, April 29, 2008, http://www.latimes.com/news/printedition/asection/la-na-health29apr29,1,1912378.story

The idea may strike some older Americans as odd, or even sacrilege — but not my generation. I know at least two couples for whom health insurance has dictated the timing, though probably not the ultimate decision, to get married.

Of course, these types of decisions are mere symptoms of the health care crisis in this country, a frequently debated topic in this year's presidential election. In fact, it's one of the most important issues that will continue to draw attention in the six months between now and Tuesday, November 4. Still, as important as this debate will be, much confusion and misinformation abound. Part of this is the media's fault, because they think we're more interested in bowling scores and shots of whiskey, as Elizabeth Edwards pointed out so brilliantly in this op-ed last month. (It's poignantly titled, "Bowling 1, Health Care 0.") But mostly, if we don't know what the debate is about, it's because we haven't taken the time to educate ourselves. The info's all there; we just need to know where to look.

First, some facts. Some of these may be well known, but they bear repeating. (Primary source: the non-partisan National Coalition on Health Care, co-chaired by former Iowa Gov. Robert Ray.)

Of the nearly 300 million people in the U.S., 47 million do not have health insurance — about 16 percent of the population.
Of those 47 million uninsured, 80 percent are native or naturalized citizens. (We're not just talking about illegal immigrants here.)
Since 2000, the number of uninsured has increased by nearly 9 million.
While our system is primarily employer-based, about 15 percent of workers did not have health insurance available to them through work in 2005.
In 2006, there were 8.7 million American children without health insurance.
Nearly 40 percent of the 47 million uninsured Americans have household incomes of $50,000 or more.
Employee spending on health insurance premiums has increased 143% since 2000.
Only 7% of unemployed Americans can afford COBRA, the continuation health insurance offered by employers when people lose their jobs.
The U.S. government pays nearly $100 billion to provide uninsured residents with health care each year.
American hospitals provide $34 billion in uncompensated health care annually.
Of those Americans who do have health insurance, 29% are under-insured, meaning that they delay medical treatment due to high co-pays or co-insurance. (Here's an eye-opening article about rising health care costs.)
Other countries have cheaper, more efficient systems of providing health care than we do, and they don't necessarily sacrifice quality to do it. See, e.g., Japan and France. Canada and the U.K. have single-payer (government-run) systems, while France is employer-based, like the U.S.

For a look at the myriad problems with the health care system, see this list of under-treated conditions, duplications and wildly disparate care depending on the illness. Two examples: nearly 10,000 deaths from pneumonia could be prevented each year through vaccination, and nearly 70,000 more people die from poor control of high blood pressure, another preventable condition.

So, what to do about this mess? Well, if it's up to our presidential candidates, there are three different options. None of them is advocating a single-payer system, like Canada or the U.K. (or Dennis Kucinich). John McCain has attacked the Democrats' plans as an attempt to socialize the American health care system, a suggestion the New York Times debunks quite resoundingly here.

Both Democrats are pushing for versions of universal health insurance. Both plans would expand the employer-based system, giving more tax incentives to small businesses that offer insurance. Both plans allow all Americans the option to keep their current insurance, if they like it, but also create an option to buy insurance from the government, the way House and Senate members do. Both plans focus on reducing premiums and reducing health care costs. Barack Obama's plan mandates health insurance for all children, but does not penalize those who can't afford to buy insurance. Hillary Clinton's plan would mandate insurance for all. Essentially, both Democrats believe that the health insurance market is broken, that government must intervene or the system will continue to spiral out of control. Both Obama's and Clinton's plans are amazingly detailed. Check out the links — whatever your question (e.g., how will they pay for all this?), the websites have the answer.

The Henry J. Kaiser Family Foundation has a tremendous side-by-side analysis of all three candidates' plans.

The differences between Clinton's plan and Obama's plan are minimal, especially when contrasted with John McCain's plan. Strangely, it is McCain — not the Democrats — who would eviscerate the employer-based system. McCain would cancel the tax incentive for employers to provide health insurance, then provide tax credits of $2,500 to individuals and $5,000 to families to essentially find their own health insurance, because employers likely won't be doing it anymore. Moreover, McCain would make it more difficult for states to get Medicaid reimbursements. In other words, McCain places his faith in the market to fix the health care crisis. Poor people, in particular, would be on their own.

On this issue, I can't put it much better than Elizabeth Edwards, who has had her fair share of experience with the health care system: "Basically John McCain's health care program works very well if you happen to be rich and healthy and not very well if those are not descriptions of you."

1L no more

2008-05-01T13:53:00.003-04:00

That's all she wrote, first year. Today I finished Van Alstyne's 3 1/2-hour closed-book exam (he did give us copies of the Constitution, which actually came in handy), and so the first year has ended. Today, for the first time, I wore my "I (heart) Law School" shirt to school. One of my female classmates threatened, good-naturedly of course, to punch me in the face. Otherwise the shirt was generally well received.

Write-on competition for journals starts tomorrow so for 24 hours, I have no obligations. More reflections later, perhaps. For now, it's a beautiful day in Williamsburg. I'm headed outside.

Reflections

2008-04-21T15:46:00.003-04:00

A 3L friend of mine, who will graduate from this place in less than a month, has appropriately begun to reflect on his time here — why he came to law school, what he accomplished here, what he hopes to accomplish upon leaving. These are not frivolous questions; for those of us at law school, they deserve much thought. Not during finals week, perhaps ... oh, I'm so easily distracted.

Back in January, my friend R.J., who works for our alma mater, Cornell College, asked for my reflections on life as a first-year law student. I submitted my essay in early February, and he published it in the Midwest Association of Pre-Law Advisors newsletter, the MAPLA Briefs, for consumption by perspective law students and their mentors. Here it is, in full. I'd write more, but I really should be studying.

Contrary to stereotypes perpetrated by movies like The Paper Chase, the first year of law school will not eat you alive. Other students will probably not raid your locker for study guides, tear important pages from your textbooks or force you to produce notes for them before final exams. While it’s certainly true that law school is more competitive than most colleges, rest assured that it is not life-threatening, and can be quite enjoyable.

Your law school experience will depend a great deal on which school you choose — not only the type of education you will get, but also your job prospects after graduation. After applying to 11 schools and visiting three, I chose to attend the William & Mary School of Law in Williamsburg, Virginia. I could not be happier with my choice.

One of the first things I noticed about law school is that unlike high school or college, everyone wants to be here. Law students tend to be more focused, more ambitious and, yes, more competitive than most everyone I encountered as an undergraduate at Cornell College. Because most law school classes are graded on a curve and because so much material is covered each day, missing a day of class is rarely, if ever, a good idea. It’s more likely for a law student to miss class for the death of a parent or the birth of a child than to skip class because of a hangover.

Second, it is critically important to know why you are attending law school because shortly after Thanksgiving of your first year, while studying for your first round of final exams, you will wonder what you have gotten yourself into. At most law schools, including this one, final exams are worth 100 percent of your semester grade — there are no points for class participation, no papers to write and midterms, if you have them, are only for practice. I have taken hundreds of tests in my academic career, including tough college finals, the GRE and the LSAT. Yet I spent more time and effort preparing for each of my three first-semester law school exams than I spent on any previous test I had ever taken.

I quit a comfortable job, gave up my cat and moved 1,000 miles from family and friends in Iowa to attend William & Mary. I did it because I believe that our federal government has lost sight of the rule of law and because I want to play a role, however small, in fixing the government. In stark contrast, many of my friends came here to get jobs at big law firms, where they will have starting annual salaries of $150,000 or more. While that path has obvious perks, it is not the path for me. Like many others, I made sacrifices to come here and I owe it to myself to stick to my goal. Being away from family for months at a time is difficult, but my goal is what keeps me motivated. Know your goal and stay true to it. If you do not know why you are attending law school, I urge you to think long and hard before sending your first application.

Here are a few things that have surprised me about law school, and that might surprise you, too.

If you attended a small liberal arts college and enjoyed lively class discussions, law school classes will be different and not nearly as fun. Class sizes are larger and professors call on students mostly at random. Students who frequently raise their hands in class are called “gunners,” and are almost universally despised by other students. It is in your best interest, most of the time, to shut up — unless, of course, the professor calls on you, in which case it is in your best interest to know everything.

Once you get to law school, you will be inundated with incredible amounts of work. After working for four years in the newspaper business, I can honestly say that law school is the equivalent of a full-time job and another half-time job on top of that. On a typical day, I spend six to eight hours reading and typing notes, two or three hours in class, two hours working for my fellowship supervisor, an hour or two at student group meetings and another hour or two working on my future plans, such as finding a summer job. That is 12 to 16 hours of day of strictly law school-related activities. If I am lucky, I can find an hour to get to the gym or an hour to cook myself a decent meal. Maybe once a week, I find an hour or two to call family and friends.

Still, every law student endures this same rigorous pace, and most live to tell about it. If able to put it all aside for half a day, I can do wonderful, meaningful things like attend a lecture by a visiting Supreme Court justice, engage in volunteer work at a legal aid clinic or spend a glorious night drinking wine, watching movies and laughing with a dozen magnificent friends.

In at least one respect, law school is more like high school than college: relationships. Far from being immune to personal drama, law students show a particular flair for it. Gossip runs rampant; I suppose we have to keep ourselves entertained somehow. On the serious side, statistics show that while about 10 percent of students enter law school clinically depressed, the number increases to 40 percent after completion of the first year. As I’ve said, the first year of law school is hard and unless you’re superhuman — I most certainly am not — it will be hard on you.

Two pieces of parting advice: first, read the book Law School Confidential. Second, know who you are and what you want to achieve. If you know that, you will not disappoint anyone — including, most importantly, yourself. And law school will not eat you alive.

Soured on 'Bitter'

2008-04-14T12:12:00.006-04:00

Hillary Clinton and John McCain are both up in arms about Obama's use of the word "bitter" during a speech in Pennsylvania. Just so we're not confused, here are Obama's comments in context:

"You go into these small towns in Pennsylvania and, like a lot of small towns in the Midwest, the jobs have been gone now for 25 years and nothing's replaced them. And they fell through the Clinton Administration, and the Bush Administration, and each successive administration has said that somehow these communities are gonna regenerate and they have not.

"And it's not surprising then they get bitter, they cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations."

Some of my Republican friends at school have asked me what the heck Obama was thinking when he said that last paragraph, and many in the media have said that Obama is "out of touch" with working-class people.

But in reality, a lot of people are bitter.

bitter |ˈbitər| adjective
2 (of people or their feelings or behavior) angry, hurt, or resentful because of one's bad experiences or a sense of unjust treatment. (New Oxford American Dictionary)

Take the 260 workers about to lose their jobs at a Hershey's plant in Reading, Pa. Hershey's is shutting down the plant, which makes 5th Avenue bars and York Peppermint Patties, and moving it to Monterrey, Mexico. Hershey's isn't going to stop there; they plant to close more plants, cutting 1,500 American jobs in the next three years.

This is a quintessential example of the problems with the 1993 North America Free Trade Agreement, passed by a Democratic Congress and signed by a Democratic president, Bill Clinton. Mexico has a cheaper labor market, so when Mexican imports aren't taxed in the U.S., it makes perfect (economic) sense for American companies to move there. Unfortunately, it wreaks havoc on the lives and families of American workers who, in the case of Hershey's, have relied on those good-paying jobs for more than 100 years.

So here's the problem for the Hershey's worker. If NAFTA hadn't been signed on Bill Clinton's watch, it most certainly would have been signed on George W. Bush's watch, with a Republican Congress at his disposal. Both the Democrats and the Republicans believe in free trade. The reality is that these trade deals aren't going to stop. Jobs are going to keep disappearing. The question is, what can we do for the workers who are losing the jobs?

The answer for the last 15 years has been, "Not much of anything." And so, the American worker has stopped voting based on his/her pocketbook. We vote on things like Personality (see 2000), National Security (see 2002, 2004) and National Security Gone Terribly Wrong (2006). The American worker has given up on the government when it comes to economic issues. People are suffering — and yes, they're bitter — but they know that the government no longer cares.

And so, they turn to social issues. Conservative commentators beat them over the head with issues like abortion, gun control and the Pledge of Allegiance. Thomas Frank sums up the phenomenon perfectly in a wonderful book I read a few years ago, called "What's the Matter with Kansas?" The book explores Frank's populist home state, which was once an anti-slavery bastion of liberalism. Now, it's one of the most reliably Republican states in the country. Have economic conditions improved there? No. If anything, they're worse. But the working class is focused on God, Guns & Gays.

Since Bill Clinton left office, the Democratic party has moved in a different direction on trade. The conservative solution, of course, is still summed up by the YOYO approach: "You're On Your Own." Pick yourself up by your $25/hour chocolate-making bootstraps and go get a $9/hour job at Taco Bell. Better yet, put your life on hold for a few years, hope your kids can pay for their own college educations and go back to school yourself on that dependable pension money you used to have.

The liberal/progressive/Democratic solution, on the other hand, is "Government can help." Instead of giving huge tax breaks to oil companies and the corporations that ship jobs overseas, spend that money on job training programs so that people can actually afford to learn a new trade.

Many conservatives accuse the liberals of enabling the welfare state, but that's a mischaracterization of the position. More accurately, the Democratic position aims for a safety net. Remember, it was Bill Clinton who signed Welfare Reform (aka The Personal Responsibility and Work Opportunity Reconciliation Act) into law. It's a misnomer, an easily debunked talk-show soundbite, that Democrats would prefer a welfare state. Look no further than Obama's 2004 keynote address at the Democratic convention:

"Now, don't get me wrong, the people I meet in small towns and big cities and diners and office parks, they don't expect government to solve all of their problems. They know they have to work hard to get ahead. And they want to."

He has often repeated this message on the campaign trail.

People are bitter. They have a right to be. They deserve a government that cares — not simply about God, Guns, Gays and the Pledge — but about the economy, too.

UPDATE: After I wrote this post, I found an interview with author Thomas Frank about Obama's "bitter" comment. Not surprisingly, Frank says, "People are bitter everywhere. ... It doesn't strike me as a very controversial statement."

The End is Near

2008-04-12T12:13:00.003-04:00

Crunch time has arrived once again, only this time complicated by the allure of a Virginia spring. My ability to study for finals is frequently frustrated by the sights and sounds of the magnificent outdoors, where temperatures hover in the 70s and sunshine reigns.

One week of classes remains then, for the 1L class: Property exam on Thursday, April 24; Contracts exam on Monday, April 28; and Constitutional Law exam on Thursday, May 1. The following day, May 2, marks the official start of the Joint Journal Competition, or "Write-On," a week-long effort to show the editors of W&M's four journals that we deserve to join their staffs. Three of the journals have specialties: Environmental Law & Policy Review, Women and the Law, and the Bill of Rights Journal. The fourth, and most prestigious, is the William & Mary Law Review. Each of us will rank our preferences, 1-4, and most people I've talked to have said that Law Review will be at the top. It is the most demanding of the four, requiring the greatest time commitment next year. It is also the journal most recognized by employers.

And so, four weeks from now — a week of class, two weeks of finals and a week of write-on — 1L year will come to an end. This doesn't seem possible, but I think the idea brings a smile to most of our faces. Summer can't get here soon enough.

I Figured Out Life

2008-04-07T02:27:00.005-04:00

This weekend has proved to be one of those amazing, ultra-productive weekends, when everything seems to fall into place and motivation is at its peak. On Saturday morning, I got full public service funding for my summer (unpaid) internship. Later in the morning, our new W&M Law chapter of the ACLU began a Voting Rights Restoration project. There are more than 300,000 disenfranchised voters in the Commonwealth of Virginia — felons who have done their time in prison and must file petitions subject to the governor's approval (if they get that far). Many of us came away from the meeting inspired, ready to act. Then I headed to northern Virginia, where I'll be working this summer, and found a place to live in Fairfax. My summer job at the Capital Defender's Office starts on May 27. I met the lead attorney in the office on Saturday; I'm stoked to work for him on some incredible cases this summer.

Friends are getting jobs, trees are turning beautiful shades of green and finals will be over soon. I'm looking forward to a two-week trip home in May. Life has seldom looked better.

P.S. The Daily Press, the local newspaper of Williamsburg, published an article on Sunday about W&M Law's efforts along the Gulf Coast, and the reporter interviewed me for the story. Here's the link.

Mixed race

2008-03-31T08:01:00.003-04:00

I'm sticking with the race theme, at least as long as the media do. Over the weekend I read Loving v. Virginia, a 1967 Supreme Court case that struck down a Virginia anti-miscegenation statute. A white man and a black woman from Virginia went to Washington D.C. to get married, and when they came back to Virginia they were arrested on criminal charges, simply because they were of different races. This was only 40 years ago! What's especially appalling about the law is that black people were still allowed to marry Asians, or any other ethnicity — only whites could not enter interracial marriages. The idea was to protect white supremacy. The Supreme Court decision was the death knell for anti-miscegenation statutes across the country. According to this NY Times story below, today there are 3.1 million couples in America who identify their marriages as interracial ones, or 6 percent of all U.S. marriages. The 2000 census was the first time that Americans were allowed to identify themselves as having more than one race.

Here's a great piece from the NY Times this morning, on the difficulties of growing up in America with a mixed-race heritage. (Any story that mentions Tiger Woods and Barack Obama has to be cool.) Also, watch the video, of an interracial student group at Rutgers University called "Fusion."

A moment of admission

2008-03-30T09:54:00.003-04:00

This weekend, W&M Law hosted about 100 the admitted students of the Class of 2011 — next year's 1Ls. I had the pleasure of serving on a couple of student-led Q&A sessions with David Bules, a 3L who sits on the other end of the political spectrum from me. During the Q&A, with about 200 people in the room, an admitted student asked about the political composition of the student body here. Bules and I looked at each other and laughed.

I said that as a liberal-leaning person, I see the composition as about 60-40 conservative. Bules said that as a conservative-leaning person, he sees the composition as about 90-10 liberal.

What can I say? We're a vocal minority.

Race and the Constitution

2008-03-25T21:59:00.002-04:00

It's certainly no secret to anyone who asks me about classes which is my favorite this semester. Of Contracts, Property and Constitutional Law, there can be only one: the least practical and most political, of course. Con Law it is.

A week after Obama's race speech, my Con Law class has delved into the Equal Protection Clause cases, some of the most famous in all of constitutional law. I just finished reading Dred Scott v. Sandford, Plessy v. Ferguson and Korematsu v. United States. Up next are Brown v. Board of Education, Brown v. Board of Education II and a lesser-known case called Loving v. Virginia, which struck down an antimiscegenation statute in 1967.

Here's the relevant portion of the 14th Amendment, ratified in 1868: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws."

Obama spoke last week about our nation's "original sin of slavery." While it's true that slavery ended more than 140 years ago, we too often forget how deeply racism had become embedded in the American culture. To illustrate the point, here is an excerpt from Dred Scott, the 1857 case which denied freedom to a slave who had made his way to the free states of Illinois and Wisconsin. The opinion was written by Roger Taney, the Chief Justice of the United States at the time.

"[Negroes] had for more than a century before been regarded as beings of inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion."

Yikes. Those, my friends, are the roots of white privilege.

You'd think that by 1896, we'd have made some progress on the High Court. Not much. Here is Justice Henry Brown in Plessy, which put a man in jail for refusing to give a white man his seat on the bus. The case established the infamous "separate but equal" doctrine, that survived for nearly 60 years, until Brown v. Board.

Justice Brown: "The object of the [14th] amendment was undoubtedly to enforce the equality of the two races before the law, but, in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either."

Later in the same opinion: "We consider the underlying fallacy of [Plessy's] argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it."

Finally, Justice Brown concludes, "If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane."

Why do I trouble you with all this? Because the conversation about race will not be easy. Over the weekend, on his blog "Right from the Beginning," Pat Buchanan wrote this:

"Barack says we need to have a conversation about race in America.

"Fair enough. But this time, it has to be a two-way conversation. White America needs to be heard from, not just lectured to.

"This time, the Silent Majority needs to have its convictions, grievances and demands heard. And among them are these:

"First, America has been the best country on earth for black folks. It was here that 600,000 black people, brought from Africa in slave ships, grew into a community of 40 million, were introduced to Christian salvation, and reached the greatest levels of freedom and prosperity blacks have ever known."

See the above link for the whole post, if you must. I could hardly stomach it.

It would be easier for all of us, Buchanan believes, if we put this silly conversation to rest, instead of acknowledging that for hundreds of years, one race regarded the other as property; that, for the purpose of ratifying the Constitution, slaves were counted as 3-5ths of a person so that Southern states could get more representation in Congress; that for nearly a hundred years after the 13th Amendment abolished slavery, black children were not legally entitled to attend the same schools as white children; that exactly 100 years after the end of the Civil War did the Civil Rights Act actually give black people the right to vote in some states; and that only three blacks have been elected to the U.S. Senate in the last 130 years, among numerous other injustices.

But Buchanan does not mention any of this. Instead, he says, "We hear the grievances. Where is the gratitude?"

Can we, as a nation, go back on this despicable history? Of course not. But white people need not ask for gratitude. We should look for ways to heal the divide, not widen it. Obama says it best:

"In the end, then, what is called for is nothing more, and nothing less, than what all the world's great religions demand — that we do unto others as we would have them do unto us. Let us be our brother's keeper, Scripture tells us. Let us be our sister's keeper. Let us find that common stake we all have in one another, and let our politics reflect that spirit as well."

Obama's race speech

2008-03-20T11:10:00.003-04:00

Barack Obama gave a profoundly meaningful speech on Tuesday, a speech he wrote himself over the weekend and into the early morning on Tuesday. For nearly an hour, he did what few politicians in the modern era — certainly no political figures of his caliber in my lifetime — have done: he addressed the issue of race in America. In so doing, he gave yet another reason why he is the best person to lead this country. But even more important than that, he opened the door to a national conversation about race.

It's not a conversation that many of us want to have. Yet, we have conversations about race everyday, which was one of the many themes in Obama's speech. He talked about his white grandmother, and how she has used ethnic and racial stereotypes that made her mixed heritage grandson cringe. For most of us, especially in middle American where I grew up, these are the ways in which we talk about race.

"Look at those black kids with their hats on backwards, playing that rap music."
"They sure can play basketball, those niggers."
"I don't understand why they aren't required to learn English as soon as they get here."

It's been almost 150 years since the Civil War, and more than 40 since the Civil Rights era, but we aren't even close to solving "the race issue." But unlike health care, or immigration, or the war in Iraq, the most important part of dealing with race will not be found in economic charts, or in a specified number of security agents, or in the swiftness with which we can remove our presence from the Middle East. Progress on the race issue will be far more difficult to quantify. The most important part of dealing with it — or at least starting to deal with it — will be in having a national conversation, a meaningful conversation about our stereotypes and prejudices. That's what Obama got rolling on Tuesday.

The reaction to the videos of Rev. Jeremiah Wright demonstrated our country's inadequacies in dealing with race issues. YouTube videos of Wright's sermons were replayed again and again on news networks, and white commentators and politicians expressed outrage. How could a person say such things?!? Yet as the doors to Trinity United Church of Christ have opened to the world, we find that Jeremiah Wright, like most folks, is a complex figure that cannot be reduced to a couple of video snippets, no matter how compelling they are to watch. Wright has done near saint-like work on HIV/AIDS in the black community. He has a loyal following of Christian worshippers who have not budged one inch, despite the media's call to denounce and reject Wright. No, of course I don't believe the government imports crack to kill black people, as Wright has suggested. But perhaps Wright's statements can be put in a larger context, such as his belief that God is more important than country. It's not a belief that I hold, certainly, but it is one that many Americans share with Wright. So if Wright believes that his country has done black people wrong, and that God will look unfavorably on America for such actions, who am I to question that? And when he says such things with conviction in a forceful, angry tone (which is, I think, what truly upset the white commentators), does that make them worse? What does most of white America know about what goes on in black churches? My sense is, not much.

We fear what we do not understand. In this country, many black people fear white people and vice versa. If we can begin a dialogue with one another, we can chip away at that lack of understanding. Less fear is a good thing. Thank you, Barack.

UPDATE:
Mike Huckabee, the Republican preacher and politician (and John McCain supporter), expressed his support for Obama on the Rev. Wright issue on MSNBC yesterday:

"[Y]ou can't hold the candidate responsible for everything that people around him may say or do," Huckabee says. "It's interesting to me that there are some people on the left who are having to be very uncomfortable with what ... Wright said, when they all were all over a Jerry Falwell, or anyone on the right who said things that they found very awkward and uncomfortable, years ago. Many times those were statements lifted out of the context of a larger sermon. Sermons, after all, are rarely written word for word by pastors like Rev. Wright, who are delivering them extemporaneously, and caught up in the emotion of the moment. There are things that sometimes get said, that if you put them on paper and looked at them in print, you'd say 'Well, I didn't mean to say it quite like that.'"

Later, he defended Wright's anger, too:

"As easy as it is for those of us who are white to look back and say 'That's a terrible statement!' ... I grew up in a very segregated South. And I think that you have to cut some slack — and I'm gonna be probably the only conservative in America who's gonna say something like this, but I'm just tellin' you — we've gotta cut some slack to people who grew up being called names..."

Uphill both ways

2008-03-15T11:11:00.002-04:00

Alright, one more short blog today and I should be caught up. On a beautiful Saturday morning in the Burg, I ran my first-ever 5K (roughly 3.2 miles) in 26:50. Granted, it's not a record-setting time but it felt pretty good, considering that: A.) I'd never run a 5K before, and 2.) I couldn't walk five months ago.

This morning's 5K was the 4th Annual Ali's Run, in honor of Ali Kaplan, the late daughter of Rob Kaplan, the Career Services dean at the law school. Ali died in 1997 at age 12 of aplastic anemia. Registration fees for the race go toward the W&M Bone Marrow Drive.

The race was ridiculously hilly, but it felt great crossing the finish line.

A summer job!

2008-03-15T08:18:00.004-04:00

One of the many exciting moments of my week in New Orleans was a phone call I got on Thursday morning, March 6, while working in a house in the Ninth Ward. The call came from the Northern Virginia Capital Defender's Office, a branch of the Virginia Indigent Defense Commission. They offered me a 10-week summer internship! Because the opportunity was my top choice and because I have enough to think about, I immediately accepted, rather than take the customary time to think about it.

Public interest internships such as this one rarely come with a paycheck; I will not be getting paid — at least not by the NoVA CDO. Instead, William & Mary offers stipends to law students working at unpaid summer jobs through the Public Service Fund. I will complete the elaborate PSF application this weekend, with hopes of getting an award of up to $3,600, which would average to about $9 an hour for the 10-week internship.

I'm extremely excited about the job. The CDO was established a few years ago to provide lawyers to indigent defendants in capital cases. If the defendant cannot afford a lawyer to provide for his/her defense, the Capital Defender's Office provides a team of lawyers, paid for by the Commonwealth. In Virginia, when a prosecutor decides to seek the death penalty against a defendant, there are two phases to the trial. First, there is the murder trial, and a jury returns a verdict of guilty or not guilty. If the defendant is found guilty, then there is a second phase for sentencing.

The goal of the Capital Defender's Office is to ensure a proper defense for defendants with their backs against the wall. If there is a sentencing phase, the CDO offers what's called "mitigating evidence," such as a history of poverty, abuse and neglect, to show that the defendant's life circumstances played more than a supporting role in the crime that was committed. If a court finds the mitigating evidence compelling, the convicted defendant may receive a prison sentence, rather than the death penalty.

I have many more thoughts on the death penalty, which of course is a big reason why I applied for this job. I imagine I will have plenty of opportunity to elaborate on these issues this summer. My job, as I understand it, will be about two-thirds legal research and writing, and about one-third interviews. I will not have contact with any clients, but I will do interviews with people who know the clients well, to obtain the mitigating evidence needed at trial. I'm aiming to start on May 27, which would make my last day August 1.

New Orleans

2008-03-13T15:58:00.007-04:00

For nearly five days now, I have thought about how to summarize this trip. I have journaled about it privately and talked about it to friends, family and staff at W&M. Each time I tell a different piece of the story; there is so much to tell.

First, the city. For those who've been to New Orleans pre-Katrina (I hadn't), there is an awareness that this is one funky city, in so many senses of the word. New Orleans has such good food and music that even the locals can't help but talk about it; they ditch work, many of them, at 2 or 3 p.m. every Friday to go downtown or to the French Quarter. There is no shame in indulging in the good life, they recognize, when it's literally around the corner. The other side of New Orleans' funkiness, though, is that this is — and has been since well before the storm, I gather — quite a dysfunctional place. The government, the school system, housing, public health ... the list goes sadly on. Katrina only shone a 1,000-watt spotlight on problems that had consumed this place for decades.

But Katrina also made them worse. The Ninth Ward, once a segregated, destitute home for many unlucky and impoverished souls, is now a Military Police-ridden, segregated, destitute home for a lot fewer unlucky and impoverished souls. More MPs patrol the Ninth Ward than NOLA police. They pat down residents as they walk into businesses, with an assuredness that some law is probably being broken. Last Wednesday, my friend Myron and I sat in the van while this happened to one of our co-workers, Mildred, a N.O. native and a black woman who, it turned out, had violated the terms of her probation. She was trying to sell some electrical wire for cash, legally, and the MPs sent her to jail instead.

A student from Virginia Tech, who I worked with throughout the week, tearing out nails and knocking down dry wall, said that the MPs were right to do what they did. After all, they probably wouldn't be searching people if laws weren't regularly being broken. That's one way of looking at it, I suppose. And if Mildred hadn't done anything wrong, then she could have gone on about her day. Another way of looking at it, as I pointed out, is that this Virginia Tech student may feel differently about such searches if she were black. I didn't see many white people in the Ninth Ward. The ones I did see were mostly volunteers, like myself, or MPs.

The point of all this is not to say that all MPs are bad, or that people who break their probation shouldn't go to jail. The point is that while we worry about how many hundreds of millions we should spend on our embassy in Baghdad, there is a city within our own borders, a city that suffers every single day. The Ninth Ward was leveled by Katrina, absolutely leveled. The people there say that the place looks so much better than it did two years ago, but I think many Americans would have a hard time telling today's Ninth Ward from a poor African village.

Of course, there is reason to hope. The contractor we worked with, through Desire Street Ministries and C.U.R.E. (Churches United for Revitalization and Evangelism), is a reverend, Joseph Merrill, an amazing man whom I would trust to lead any project. Men and women like him, blessed with non-profit boards that have donated millions to the cause, are the ones rebuilding the Ninth Ward. The process is slow, painstakingly slow. The City cannot use eminent domain, cannot take control over most of the property, because some homeowners cannot be located or say they will return, someday. If you're the City of New Orleans, the State of Louisiana, the U.S. government, you can't take a person's home away from them after your levee collapsed under the weight of water from a barge, and the person had to flee for their life, carrying only the shirt on their back, riding a bus if there was one available, to a faraway city.

And so the rebuilding is slow, one house at a time, perhaps, on each block. At the current pace, I imagine it may take 15 or 20 years to return the place to normal, whatever that might look like. The houses are stripped to their foundations and frames. We tore down wet ceilings, ripped up buckled tile from the floors, pulled rusty nails from soggy boards. Then the good Rev. Merrill will go in with his crew and fix the places up so well you couldn't tell the difference between the inside of one of his houses from a new interior display at Home Depot.

So those were the days for three of us — Myron, Kathleen and me, along with a crew of five or six students from Tech, a Christian group that had come to pray and work, like Rev. Merrill does every day. He showed us the churches of the Ninth Ward, including a large church with only a foundation standing. We asked him about it, and he pointed to another smaller church, two doors down, still fully intact. He said that the smaller church, with a congregation of 400, had been preparing to expand. The concrete had been poured for a new, larger church — two months before Katrina. After the storm hit there was no reason to finish it. The church's congregation went from 400 to 75. But Rev. Merrill does not dwell on this, the sadness of it all. He says that Katrina reminded him of that Bible verse which declares that we are all one people before God, that denominations do not matter. I asked him if he was a Baptist, and he said, "Yes, but I am all faiths." I asked him if he was also a Presbyterian, and he said, predictably, "Yes." He cannot be choosy about his congregation, even if he wanted to be. Unlike the rest of the city, only 15% of the Ninth Ward's population has returned.

Others in our group worked for the Center for Racial Justice, helping to organize a walk-out by in southern Mississippi by about 100 Indian immigrants, who had been told by Signal Corporation that they had been granted permanent working status in the U.S., only to get here to discover that they had temporary visas, and would be deported if they reported their poor working conditions. Shortly after we returned from our trip, the NY Times, CNN and the AP reported on the story, another sad example of an overlooked minority group. Still others of us worked at the American Red Cross and the City Attorney's Office.

I should mention that at night, we had a great deal of fun. It has been years since I've been on a trip like this one with peers. We bonded, as people often do on these kinds of trips. We ate crawfish and beignets, gumbo and jumbalaya, walked down Bourbon Street and around Jackson Square, and heard the jazz piano of Ellis Marsalis. We sang on the rooftop of our bed and breakfast in the Garden District, enjoyed the company of good friends. I have so many good memories that I am already thinking about a return trip next Spring Break. The good City of New Orleans will still be there, and it will still need our help.

The Big Easy Ain't So to Explain

2008-03-03T00:39:00.012-05:00

I'm blogging from New Orleans, where about 20 of us are staying and volunteering this week. We arrived Saturday before around 10:30 a.m. (CST). Following the 18-hour or so van ride, a few of us were more than ready to go for a run, down Prytania and Magazine Streets. In the evening we found our way to Bourbon Street, which is impossible to compare to anything I've ever seen. At least on Saturday night, it is a party that stretches for more than a mile, with a constant flow of pedestrian traffic and, even though Mardi Gras was a few weeks ago, people throwing beads from balconies.

Several times in the last couple of days, I've heard that New Orleans is the most European city in the United States. I hadn't heard that before I came, but I believe it, given the diversity, the food, the music and the laissez-faire attitude about alcohol. (Open container laws? We don't need open container laws in N.O.) In some ways, one could also say it's the most American city. After all, this is where jazz was born, where Jefferson snookered Napoleon en route to manifest destiny, and it's the third-largest port in the country, where the Mighty Mississip' meets the rest of the world.

Of course, we're all here because of Katrina. Today a few of us visited the Ninth Ward, and walked across the foundations where there once stood houses that were swept away by flood waters. We looked at the new levees, which hardly seem built to withstand another Katrina. One could write several books about how complicated New Orleans' problems are; they simply cannot be distilled. Anyone who tries to do so — to dismiss the problems in a sentence or two — is not telling the whole truth. Pre-Katrina poverty, post-Katrina incompetence, mismanagement, geography, limited resources, poor planning, dysfunctional schools — all of these and more have contributed to the scarring of this great American city, but none of them alone explains what has happened here. Driving by the tent village under the bridge at Claiborne Ave., where many of New Orleans' 12,000 homeless people sleep at night, one can't help but be disgusted, repulsed, ashamed that this could happen in the United States of America. I know I was. But then I learned that there were 6,000 homeless people here before Katrina. Suddenly I'm embarrassed that I didn't know that before I came.

In a few hours I will return to the Ninth Ward, to work for Desire Street Ministries. There is much to learn and do this week.

On the road again

2008-02-28T15:16:00.002-05:00

Tomorrow begins spring break and for 21 of us, the long journey to New Orleans. The majority of those on the trip will be working at the N.O. City Attorney's Office, with the remainder at the Center for Racial Justice, the American Red Cross and Desire Street Ministries, which is where I'll be. I'm told it's possible that the three of us working for Desire St. will be working on a house in the lower Ninth Ward, which is about the equivalent of Ground Zero in New Orleans.

I don't know that any of us are prepared for this journey, as we've all been extremely busy with second semester work. Regardless, we'll be jumping into two 12-passenger vans tomorrow at 5 p.m., and driving straight through to our destination, a bed & breakfast called Creole Gardens.

The summer job hunt continues. Many have found work already, and on-campus interviews are a regular occurrence. It's possible that I will have a job tomorrow, or next week, or when I return. I'm not worried.

Shortly after my last post, two weeks ago, my computer crashed, which put a dent in my February blogging. Fortunately I backed up my data the day before the crash. Chalk that one up to having experienced a crash and losing everything at the West Branch Times. Never again, I said. So, my debt load is a little larger now, but I'm loving my new MacBook. The way I see it, I'm doing my part to help the economy.

Alright, off to one final pre-trip meeting, then it's time to pack. Bon voyage.

Whirlwind weekend

2008-02-12T09:18:00.002-05:00

What a weekend. The last four days, from Friday to Monday, will go down as some of the most memorable ones of my first year.

On Friday morning, Justice Sandra Day O'Connor, the only retired Supreme Court Justice and the Chancellor of the College of William & Mary, came to Marshall-Wythe School of Law for several hours and spoke. More accurately, one of the constitutional law professors here arranged for O'Connor to hold a Q&A session with first-year law students for 45 minutes on Friday morning. She is aptly described as a firecracker, a word I heard several people use after her visit. She is quick-witted, both confident and humble, proud of her Western roots, and just a wonderful person to be around. A fellow student took my picture with her, and as soon as she emails it to me, I'll post it.

I spent all day Friday and all morning Saturday at the first-ever Citizen-Lawyer Symposium. Again, I'll be writing about that for the Advocate, when I can find the time. Briefly, it was a highly academic discussion but well worth the time.

On Saturday night I MC'd the Public Service Fund Auction. There was a live auction and silent auction --- so far I know that we raised over $13,000 from the live auction, which is a $4,000 increase over last year. The silent auction raised $7,000 last year so I hope we can make it to $20,000. The money gets divvied among students working at unpaid summer jobs and internships. I'll likely be one of those students. Anyway, the auction raises money because it's a variety show, with law students doing all sorts of absurd and hilarious acts, then people bid on donated packages. The most expensive one, four box seats at a Red Sox game, went for $1,050. In addition to being the MC, I participated in a Jackson 5 lip-sync with four of my friends, wearing afro wigs and ridiculous '70s clothing. Maybe if I get the courage I'll post a picture of that as well.

On Saturday afternoon I also made my first trip to Jamestown. Sometimes I forget that I live 5 miles from the oldest European settlement in the New World. It's a fantastic place to go for a run, so I hope to get back there soon and see more of it.

On Sunday night I went to a Barack Obama rally in Virginia Beach. Six of us from the law school stood outside for nearly two hours before they opened all the doors and let us into the convention center. The line stretched for close to a mile, but everyone got in. I haven't seen any estimates, but Obama has drawn crowds of close to 15,000 in Boise, 15,000 in Seattle, and 17,000 in College Park, Md., so suffice it to say there were thousands of us. He's giving more detailed, policy-oriented speeches now, and talking less about his biography. I imagine that's because more people know who he is and want to hear more details. Obama is giving details about what he's going to do as president, but the press is more focused on the enormous crowds and energy at these rallies. Oh well, I guess that's not such a bad thing. The Virginia, D.C. and Maryland primaries are all today, and he will likely do well in all three. Go Barack!

Finally, yesterday afternoon my computer went kaput. Thank goodness it started acting a little funny on Sunday, so I backed up my hard drive. Like about four other people at the law school, I've been taking paper notes in class. Being without a computer at law school is a bit like being without a car in the working world. You can do it by leaning on other people and using public facilities but it wastes an enormous amount of time and gets harder to sustain by the day. Because my computer was refurbished, it didn't have a warranty. A new logic board would cost almost half as much as a new laptop so I ordered a new Mac (with a warranty, of course). I hope to get it tomorrow morning.

What a crazy four days.

Back to school

2008-01-31T13:22:00.000-05:00

Today's my first day back since Monday. Missing two days of class was hardly noticeable in high school. Miss two days at Cornell and a person was in jeopardy of having to drop the class. I imagine law school is somewhere between those two extremes. Friends taking notes is a huge help.

People are saying that half the law school has the flu. I won't miss my flu shot next year.

Next weekend, Feb. 8-9, is the Institute of Bill of Rights Law's first-ever Citizen-Lawyer Conference. W&M's credo, if you will, is that lawyers have a special obligation to serve the public interest, given the tools we learn at law school. This fits well with what many of us hope to do. At the conference next week, lawyers and professors from all over the country will discuss the usefulness of the Citizen-Lawyer concept, first envisioned by George Wythe, who signed the Declaration of Independence, attended the Constitutional Convention and at the request of Thomas Jefferson, founded the William & Mary School of Law (the nation's first). His pupils included Jefferson, Henry Clay, James Monroe and John Marshall, who later became perhaps the most important Chief Justice in U.S. history. Hence the name of our school — Marshall-Wythe. (UPDATE: I added a recent snow-covered picture of the Marshall-Wythe statue outside the law school.)

Sandra Day O'Connor, W&M's Chancellor, will be the featured guest at the Citizen-Lawyer Conference. I got the chance to see her speak on the undergraduate campus earlier this year, but this time she's coming to the law school, a more up close and personal visit. Should be a good weekend.

Sick day

2008-01-29T13:02:00.000-05:00

Ugh. I have some sort of flu/cold bug. Missing a whole day of classes stinks.

Yesterday I was still well enough to go to a luncheon with the Election Law Society, a student group that started at W&M last year because of the intense interest in all the controversy surrounding recent elections. For the most part, Republicans worry about voter fraud and Democrats worry about disenfranchised voters. Anyway, the National Center for State Courts is based in Williamsburg and is actually located right behind the law school. This week there is a conference featuring chief justices of all the state supreme courts, and we got to have lunch with them. I sat with the chief justices of Alabama, North Carolina and Montana, among others. Coincidentally, all three are women. I also met Marsha Ternus, the Chief Justice of Iowa, and the first woman to serve in that position. She's from Vinton and graduated from Iowa and Drake Law.

So many people are talking about the presidential race, and I've become quite obsessed with it. Virginia votes on Feb. 12, a week after Super Duper Tuesday. Exciting stuff.

We're busy getting ready for the Spring Break trip to New Orleans, which is March 1-8. I'm not sure what I'll be doing yet — most likely either community organizing or manual labor. Should be a great experience. There are 21 of us going as part of the Student Hurricane Network.

While many people have wrapped up summer jobs, most of them have done so because of personal connections. The rest of us are still waiting to hear about potential interviews, and should know something soon.

That's as long as I can concentrate today.

Snow day

2008-01-19T21:13:00.000-05:00

After it looked like all it would do was rain, snow fell throughout much of the day in Williamsburg today. I threw a snowball and took lots of pictures. Too bad it's Saturday, or they might have canceled school.

Class nuggets

2008-01-17T16:54:00.000-05:00

A word about grades — I got my last one today — and then I'll be done. I can only speak for myself, but it seems that the quality of my grades are disproportionate to the amount of studying I did for each class. There is an exhausting list of possible reasons for this, of course, which I do not care to go into here. Suffice it to say that, like most law students, I am more pleased with some grades than others. We were all straight-A students once upon a time. Not anymore.

A few friends and I have made an observation about a tendency of at least two professors here, and perhaps more. An odd thing often happens when one of these professors calls on someone and that person gives what seems to be the right answer. The professor acts as if a wrong answer has been given, often moving on to another student or returning to the lecture, ostensibly to educate us further on the point. Then, a few moments or even half an hour later, it happens: the right answer, the one we've been searching for, was precisely what the first student said! I'm calling this the Prematurely Correct Paradox, because like all good paradoxes, the first student's "prematurely correct" answer leads to a logically incomprehensible result — the professor says "No, not what I was looking for," only to arrive at the same place later on. Weird.

Library labs for Legal Skills start tomorrow. Advocate layout is Sunday afternoon. The first round of job bidding, through Career Services, ends Sunday. Moot Court tryouts begin Tuesday. Our first mini-memos of the semester, also for Skills, are due next Thursday. Thank goodness Professor Van Alstyne is so entertaining, or law school might get pedestrian.

Law school gets harder?

2008-01-10T12:30:00.000-05:00

Word on the street is that second semester of first year is among the most difficult. Of course, everyone here seems to think that the most difficult semester is the current one — except for second-semester 3Ls. There is a good deal of senioritis going around. One of my 3L roommates just signed up for Admiralty Law. I think I may buy him an eye patch and offer my foam sword for him to take to class.

Lots of things are happening at once. My classmates and I are simultaneously working on: three new classes, including an extra day of Con Law (15 credits this semester vs. 14 credits last semester); applying and interviewing for summer jobs, which takes a great deal of time; Moot Court tryouts, which start next week; mandatory Legal Skills workshops and legal research labs; fellowship work; and other assorted law school activities. Oh yeah, and there's having a life. When we have time. Mostly we don't.

The two topics of conversation right now are grades (which keep on trickling in online) and presidential politics. Some people freely reveal their grades, while others just express disappointment. I haven't heard anyone say that they got an A yet. The ones who disclose tend to be people who got Bs, which makes some sense. The curve here is such that the largest number of students get Bs, so getting a B is nothing to be ashamed of, nor is it something to be particularly proud of. Getting a B means you're on your way to graduation, but it also means that you're probably not going to graduate in the Top 10%.

From the Berg to the Burg

2008-01-07T12:07:00.000-05:00

A departure from snowy, cold Guttenberg, Iowa has placed me in balmy Williamsburg, where it is 70 degrees and sunny. Walkers and joggers abound, and I returned to the first day of class this morning in a short-sleeved t-shirt; others are comfortably wearing shorts. It hardly feels like any January I've ever known.

After a wonderful break, I suddenly feel 5,000 miles from home, rather than 1,000. Notwithstanding the sunshine, summer feels like a very long time from now.

I have forgotten the combination to my locker at the law school. I don't think that anything of importance is inside, however, it does make for an amusing, annoying problem in my first week back.

So much to do. Next week Moot Court tryouts begin. At William & Mary we have both Trial Team and Moot Court. Trial Team involves arguing the defense and prosecution of a simulated case as if you were a trial attorney. Moot Court involves oral appellate arguments, and deals with constitutional questions. I did not try out for Trial Team, which took place in the fall. However, I do plan to try out for Moot Court, as I came to law school primarily because of my interest in Constitutional Law. Preparation consists of reading about 10 cases and assembling an oral argument. I will argue in front of a group of "judges" — 2nd- and 3rd-year law students already on the Moot Court team. There are typically three rounds, and not a whole lot of people make it. I'm hoping to, of course, but just preparing and giving the argument will be a learning experience in itself.

Once again, after attending all my classes, I am reminded why I am here. While I liked, for the most part anyway, all of last semester's professors, it's refreshing to have three new ones this semester. All three are very different from last semester and from each other. This semester will be another good one.

Afternoon update: After a stronger dose of coffee, I remembered my locker combination. Things are looking up for the rest of the week!

First semester finale

2007-12-20T07:55:00.000-05:00

It's over! Yesterday morning's civil procedure final marked the end of the first semester for 1Ls. For many in my section in particular, it was the most dreaded of the three. It's all done now!

For me, it was definitely the most painful part of the day. But I did go from the final to the surgery center, where I finally got this awesome piece of metal out of my knee. As you can see, it's about four inches long (almost twice the length of a AA battery) and comes with a washer, to boot. I elected not to have general anesthetic, so I got to watch the entire procedure. I think the best moment was when one of the nurses asked me which final I'd taken. I said, "Civil procedure," and she asked, "What kind of law is that?" I said, "How to sue somebody." Immediately the anesthesiologist looked up with wide-open eyes as if to say, "Oh, great." I told him I'm not into medical malpractice, then I laughed.

The whole thing was much less painful than the first surgery, and my knee feels so much better already. I should be running again in a few weeks! I owe a huge debt of gratitude to my friend Cabell, who waited for more than three hours in the surgery center lobby to take me home. She's the best.

So that was my excitement yesterday — not the kind of day I hope to repeat anytime soon, but as Nietzsche would say, "What does not kill us makes us stronger." I couldn't agree more.

I have a lot to do in the last few hours before this afternoon, when I fly home to Iowa. I thought I'd at least post my second semester schedule, so I can remember what awaits (in just 2 1/2 weeks).

Property, Prof. Ronald Rosenberg—M, Tu, Th, 10-11:15 a.m.
Constitutional Law, Prof. William Van Alstyne—M, Tu, W, Th, 2-3:15 p.m.
Contracts, Prof. Angela Banks—M, Tu, W, 3:30-4:45 p.m.
Legal Skills, Prof. Fred Lederer—Tu, 8:30-9:50 a.m.

I'll also be taking Advanced Research for two weeks in March, after spring break. The class meets on Tuesday and Thursday from 5:30-7:30 p.m.

So, 16 credits, compared to the 14 I had this semester. At least now I have some idea what I'm doing and how to get ready for finals. I'm definitely looking forward to next semester. See you all in January!

Getting testy around here

2007-12-15T10:07:00.000-05:00

Two down, one to go. We can't really discuss final exams and as I've quickly learned, it's better that way. There's enough stress circulating here already. At the same time that we're taking our first law school finals, deadlines are approaching for summer jobs and Moot Court tryouts are just on the other side of break. And of course, most everyone I've talked to is very excited for break. That Civil Procedure final can't get here soon enough. In the meantime, a lot of people (including me) don headphones each and every time we enter the law school, hoping not to catch that inexorable panic that seems to radiate from the back of the first floor of the library, spreading to every corner where it will be heard.

"Is that really your outline? Really? That's it?"
"I probably should have done the reading."
"I don't know anything about civil procedure."
"Honestly, your first semester 1L grades are the only ones that matter for getting a job."
"The good firms couldn't care less about people with straight B's."
"Oh, you're just doing public interest law. Well, I guess your grades don't matter then."

I wish I were making this stuff up. I can't imagine what it must be like at more competitive law schools. For all the stress that emanates here, it must be nothing compared to a place like Georgetown or Harvard.

Anyway, I'm happy to be done with two finals. Oh, and a fun note about Wednesday: after finishing Civil Procedure, I'll drive straight to the Surgery Center, where I'll finally get the screw out of my knee. It's a fitting bookend for my first semester, which began at the same Surgery Center, where the screw was installed. On this trip to Iowa, there will be no trips to the Field of Dreams.

The final push

2007-12-02T23:09:00.000-05:00

This might be my last post before exams, which for my classmates and me are just 10 days away. Just one week of classes remains — three hours each of Criminal Law and Civil Procedure, and four hours of Torts. (We've gotten so far behind in Torts that Prof. Meese is attempting to schedule a last-minute make-up session.) Of course, that's strictly the class schedule and doesn't factor in: 1.) two more teaching assistant review sessions, which last an hour and tend to be productive; 2.) an optional 1-hour exam preview with 2Ls and 3Ls from my Legal Skills firm, Lederer & Posey; 3.) two optional hour-long Civ Pro review sessions with Prof. Green; and 4.) an hour-long Crim review session after class with Prof. Marcus.

Aside from those, there are study group sessions and a ridiculous amount of reading, outlining, reviewing, flow chart drawing, copying, printing, labeling, and practice exam-taking in the 10 days ahead.

In the end, however, we'll all gather at the scheduled times for our first three exams. We will take them, and we will not have any idea how well we did for about 45 days — well after we have started our spring semester.

Crunch time is here. Om.