Winding Down the Fifth Semester

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

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

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

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

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

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

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

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

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

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?

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

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

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

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:

1. Social Security and Related Programs, Housing, and Food Stamps
2. Veterans' Benefits
3. Taxation
4. Federal Civilian and Military Service Benefits
5. Employment Benefits and Related Laws
6. Immigration, Naturalization, and Aliens
7. Indians
8. Trade, Commerce, and Intellectual Property
9. Financial Disclosure and Conflict of Interest
10. Crimes and Family Violence
11. Loans, Guarantees, and Payments in Agriculture
12. Federal Natural Resources and Related Laws
13. 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

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!

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

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

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

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?

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

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

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.