The Faculty Lounge

Is Julius Henson Guilty of Racial Treachery?

In my book, I argue that there are three proper grounds on which to criticize a black person for racial treachery.  I refer to these as the three types of constructive racial loyalty norms.  The first norm punishes blacks for consciously seeking to advance the enemies’ interests.  The second norm penalizes inexcusable meekness in the face of racism.  And the third censures blacks for lacking concern for the race. 

Each of these norms provides an effective manner of encouraging racial solidarity.  If the black community, for example, minimized the amount of blacks who violated these norms in, say, the 1940s, the community would have better positioned itself to directly challenge Jim Crow.  That is to say, adherence to these norms enhances blacks’ capacity to direct legal triumphs.  

Julius Henson is a Republican consultant.  He wanted to implement a strategy (I’m not certain what this strategy is yet) to suppress black turnout in the 2010 Maryland gubernatorial contest.  The Ehrlich campaign, however, rejected it.  On the day of the election, he administered a different strategy -- robocalls directed at black Democrats aimed at keeping them from the polls.  The call said:

 "Hello. I'm calling to let everybody know that Governor O'Malley and President Obama have been successful.  Our goals have been met. The polls were correct, and we took it back. We're OK. Relax. Everything's fine. The only thing left is to watch it on TV tonight. Congratulations, and thank you."

So, in your opinion, did Henson violate any of the three constructive racial loyalty norms?

Some Henson Links:

Link 1, Link 2, Link 3, Link 4

Nuremberg, Interpretation, and the Nazi Aesthetic

I've just returned from leading the law program of the Fellowships at Auschwitz for the Study of Professional Ethics ("FASPE"), which I blogged about extensively when I did the trip last year.  (Go here and scroll down a bit.)  FASPE is a traveling seminar that looks at professional ethics and identity through the lens of the Holocaust.  The Museum of Jewish Heritage in New York sponsors the trip. 

This year we added a visit to the city of Nuremberg -- the birth site of the racial laws that today bear the city's name, the home of Hitler's annual mass rallies (until the war started), and the site of the post-war trials of major German perpetrators by the International Military Tribunal.

I found myself unsettled by the interpretive approach at the Documentation Centre Nazi Party Rally Grounds, the museum that presents the megalomania of the Nazis' architectural and propaganda efforts at Nuremberg.  The museum is in the Congress Hall:

Most of the interpretive materials in the museum document the crazy enormous grandeur of the buildings and grounds that the Nazis built to showcase their 1000-year Reich and the extravagance of the mass displays of patriotism they engineered.  Toward the end of the exhibit, the visitor comes upon a smaller area documenting the genocide in which this all culminated.

This is, I suppose, as it should be:  what the museum interprets is its site, and the site is principally about Nazi architecture and propaganda -- about the Nazis' ascension to and cementing of power.  It's not chiefly about genocide.  Yet I found the site disturbing.  There is a certain awe-inspiring beauty to the Nazis' architecture and their patriotic displays.  They were an astonishing achievement, and there is a riveting aesthetic to them.  It made me deeply uncomfortable to acknowledge these things.

I came to Nuremberg from a visit to Auschwitz and Birkenau.  That provided more than enough ballast against the odd fascination of Nuremberg.  Much more than enough.  I wonder, though, whether some visitors to Nuremberg focus more on the aesthetic and less on the horror -- more on the Nazis' improbable achievement of order from chaos and less on where it all ended up.  

To be sure, the museum depicts the sobering impact of the Nazi propaganda machine, like this German first-grader's school drawing:

"The Jews are our misfortune," it says, parroting one of the ubiquitous Nazi placards of the day.  (The young artist's name is concealed; he or she might still be alive.)

But this was a little paper in an out-of-the-way display case.  I would have sooner seen this blown up huge on the wall in place of one of the wall-sized rally photos.

Vince Vaughn, Owen Wilson, Interns, Outsourcing, and Why the United States Should Enact a National Film Incentive

Colin Miller, a law professor at John Marshall (Chicago), and a friend of (and occasional visitor to) the Lounge, asked me to make this post on his behalf:

It was recently announced that Vince Vaughn and Owen Wilson will reunite for Shawn Levy’s “The Interns,” about friends who lose their sales jobs and decide to intern at a tech company to get back in the game. Although the comedy likely won’t be timeless, it should be timely given everything from Ross Perlin’s"Intern Nation" to the New York Times discussing how unpaid internships are becoming the de facto gateway to paid positions for today’s college grads.

The announcement of “The Interns” inevitably brought to mind the stillborn “Outsourced” project to which Wilson and Vaughn were attached in the 2005 afterglow of "Wedding Crashers" becoming the top grossing R-rated comedy of all time. That project would have seen the two funnymen starring as downsized workers going south of the border to get back their outsourced jobs. The “Outsourced” project would have been prescient, but not for the reason that you might think.

The “Outsourced” project seemed like a no-brainer after “Wedding Crashers” broke box office records.

It’s even less surprising to claim today that movies are America’s top export than it was in 1998. The United States and Canada accounted for a shade under 50% of worldwide box office at the turn of the century; by 2011, their piece of the pie had shrunken to 31%. When "The Hangover" supplanted “Wedding Crashers” as the top grossing R-rated comedy, it did so by a mere 32.5% domestically. But overseas, “Hangover” outgrossed “Crashers” by an astonishing 150.5%. 2 years’ later, Todd Phillips’ carbon copy sequel left its predecessor in its dust, more than doubling its foreign receipts.

That sequel was filmed in Thailand, which makes sense, given that the film was about one night in Bangkok. But since 1997, the percentage of films that take place in the States and yet are shot elsewhere has multiplied. From 1980-1997, motion picture and “service activities in Los Angeles County grew at a rate of 194% for employment and 248% for businesses." But from 1997-2007, the number of shooting days in Los Angeles decreased nearly 40%. So, why did 1997 represent the turning point and the start of a literal tectonic shift that has seen studios outsource the production of countless movies just as companies have done with their production of innumerable other commodities?

The Last Polka

My guest blogging began with a post in memory of The Band’s Levon Helm.  I would be remiss if I did not circle back by sharing a hidden gem and seeking other Shmengeheads. 

The Shmenge’s Last Polka is a mockumentary about brothers, Yosh (John Candy) and Stan (Eugene Levy) Shmenge, retiring from a long and illustrious career as the greatest Polka duo ever.  The format follows Martin Scorsese’s classic, The Band The Last Waltz.  The Shmenges were born on Second City TV and also known as the Happy Wanderers.

 Unfortunately, this classic has not made its way across the digital divide and is not (yet?) available on DVD, or whatever we’re using now.  Fortunately, a fellow Shmengehead posted the film in several parts in cyberspace. Here’s a part of the film with a Linsk Minyk (Rick Moranis) sit-in and banter.

 Thank you to the Lounge regulars for sharing their forum and to all the readers for sharing their time.  I hope to see/meet you at SEALS later this summer or somewhere down the So Many Roads we all know.

Cheers,

Joe

p.s. The last link above is to a late era Robert Hunter / Jerry Garcia song.  Jerry flubs a few lyrics, but this inspired performance from the Boston Garden in 1994 is worth seven and a half minutes of any music lover’s time, at least once.  For some reason, Jerry vocally wails on “to heal my soul” at the end, instead of the usual “to ease my soul.”

 p.p.s. RIP Doc Watson.  Sitting on Top of the World

 

Law & Morality: John Edwards' Defense Works

In closing arguments, John Edwards' attorney argued that he committed sins, not crimes.  With one not guilty verdict and a mistrial on the other five counts due to a deadlocked jury, it appears that his defense worked.  This explicit defense separating law from morality could be good fodder for Jurisprudence courses and other dicussions about the overlap between law and morality.

For an interesting read on how the National Enquirer broke the story, here's an article on Huffington Post by David Perel, then-Editor-in-Chief of the National Enquirer.  The article details the investigation and provides Perel's take on what this saga says about our presidential politics and the ability to find truth in courtrooms.  Here's an excerpt:

Edwards, Hunter and Young retained separate counsel in an attempt to stop the Enquirer's expose of the affair, the pregnancy and the money trail. None of them knew that for months a team of Enquirer reporters, living in Young's gated community, watched Hunter and Young daily and had knowledge of Hunter often dining at the Young's house. So when Andrew Young and his attorneys contended that HE was the father of Hunter's baby, incredulity was replaced by laughter from my team. Yes, we were supposed to believe that he brought his pregnant mistress home regularly for dinner with his wife and children.

I can imagine The Who's I'm Free running through Edwards' brain head right about now.

 

Dewey & LeBoeuf and “Clawbacks”

News accounts of the hearing on the first-day motions in the Dewey & LeBoeuf bankruptcy reported that the secured lenders whose cash collateral the liquidating debtor-in-possess must use to wind down its affairs asked for a lien on avoidance actions (popularly known as “clawbacks” although I would subtract points on a bankruptcy final exam from any student who used that term) as additional collateral. They didn’t get it, at least not yet. Clawbacks typically come in two flavors: recovery of either preferential transfers under Bankruptcy Code § 547 or fraudulent conveyances under § 548. The objects of these avoidance actions would, I suspect, be the (overly) highly-paid partners whose guaranteed compensation packages proved the firm’s ruin. The report here of the retention by a number of former D&L partners of attorney Mark Zauderer confirms my suspicion.

All reports suggest that D&L’s unsecured creditors will be out of the money; not a crumb will be left after secured bank and bond debt is paid. Thus, for unsecured creditors to collect even a dime will require vigorous pursuit of avoidance actions. I wouldn’t mind becoming the Irving Picard (of Bernie Madoff bankruptcy fame) of D&L ($554 million and counting in fees so far per the NYT).

A good place to start might be “rainmaker Ralph Ferrara” who, according to a Global Legal Post article here got “$16 million to offset the fully vested pension he lost in the move [from Debevoise & Plimpton], and recreating his Debevoise office down to the paint color.” Say what? How does one need compensation for a “fully vested” pension? If fully vested means fully vested, Ferrara could have suffered no loss in his switch to D&L, and his $16 million pop should be low-hanging fruit in an avoidance action. And even if Ferrara did suffer a $16 million hit when he left Debevoise & Plimpton, one could be forgiven for suspecting that D&L didn’t get “reasonably equivalent value” for paying him that much simply for jumping on board. I’m sure Ferrara had a great book of business and all but $16 million plus guaranteed compensation!? Gotta wonder.

Scott Pryor

CFP: Climate Change in the Former Colonies -- Challenges of Property and History

My friend Jill Fraley, a property professor and legal historian at Washington and Lee University, has just circulated a call for papers for a conference this fall on "Climate Change in the Former Colonies: Challenges of Property and History."  This promises to get some really terrific discussion going, among several groups who don't usually talk with one another, but ought to: legal historians, and scholars of property and the environment. Here is the CFP (and a press release is here). The deadline for proposals is June 30, 2012.

I can imagine a lot of really interesting papers here -- stretching back to the colonial era to look at how property law encouraged the development of the law (and maybe even how this is depicted in landscape art).  I would imagine there's a lot that should be said about this in the literature of the nineteenth century -- and perhaps even something from southern, pre-Civil War fiction on how the desire for economic development led to over-use of natural resources.  Now that I think about it, Washington College's President Henry Ruffner had more than a few things to say about this topic, in his attack on slavery.

Of course there is an immense amount to say about this from a contemporary perspective, too -- and I should imagine that the Shenandoah Valley is an ideal setting for this discussion.  Though this is too far outside of my current research interests to deliver a paper, I am looking forward to attending the conference in Lexington on October 12.

Can Hiring Committees Learn Anything from Sports?

With the NBA lottery draft order being decided tonight, I think this is a good time to throw out an idea I’ve been mulling over for quite some time.  Tell me if I’m off base, right, or something in between.

In the months leading up to the 2004 NBA draft, the Orlando Magic, holding the first pick, had to choose between Emeka Okafor and Dwight Howard.  Okafor had proven himself to be a star in college.  Howard was the unproven prospect with limitless potential who was coming straight to the NBA from high school.  The Magic, of course, chose Howard.  And it was the wise choice.  Okafor is a decent role player.  Howard is a superstar.

In terms of entry-level hiring, the Okafor candidate would get hired over the Howard candidate at basically every law school.  The reason why, I think, is because GMs and scouts of the NBA, NFL, etc. think that being “talent evaluators” is the best way to improve their team.  Hiring committees, on the other hand, opt to be “talent predictors.”  If my hunch is true, it's a big mistake.

Let me explain the difference.  Talent evaluators look at the entire candidate—their skill-set, ambition, love for the craft, personality, etc., AND past performance to make an assessment into how one will perform in the future.  Talent predictors look almost solely at a candidate’s past performance as the predictor of future performance.  Talent evaluators can see the potential in guys like Cam Newton, LeBron James or Bryce Harper.  Talent predictors would never get behind any of those three, but would vouch for guys like Ron Dayne, Kellen Moore and Shane Battier.

The sports analogy does not perfectly fit with the legal academy.  But I use the analogy as a launching pad for a discussion concerning whether hiring committees are looking at their duties in the best way.

 

Roads Not Taken to RadLAX

Justice Scalia writing for eight member of the Court (notice of Justice Kennedy’s recusal came the morning of oral arguments) went out of his way to deny that past practice under the Bankruptcy Act need be considered to justify the Court’s conclusion that credit bidding must be permitted under the Code: “As for pre-Code practices, they can be relevant to the interpretation of an ambiguous text, but we find no textual ambiguity here.” That two Courts of Appeal had concluded otherwise garnered not a mention (the Fifth Circuit in Pacific Lumber and the Third in Philadelphia Newspapers). I was disappointed by the failure of the Court to address pre-Code practice and not only because a nifty history of that practice was one of the burdens of the Professors’ Brief. Without the context of the 1976 Pine Gate decision, which had denied a secured lender the right to credit bid and which, in turn, led to the enactment of Bankruptcy Code § 365(k) explicitly preserving the right in pre-confirmation sales, and the long history of credit bidding, the Court’s claim of “no textual ambiguity” sounds more like an ipse dixit than a reasoned conclusion.

Less disappointing but a bit disconcerting was Justice Scalia’s statement that “the pros and cons of credit-bidding are for the consideration of Congress, not the courts.” Well, yes but how far does Congressional power extend when it comes to eliminating credit bidding? (Although I hardly anticipate this or any future Congress would be likely to do so.) The second (and, frankly, more interesting) argument in the Professors’ Brief was that eliminating secured lenders’ rights to credit bid would be unconstitutional. Not that I expected the Court to pick up this line of argument but I would have preferred that it not expressly leave the question open for subsequent Congressional muddling. On the other hand, plenty of others disagree that credit bidding is a right to property protected by the Fifth Amendment so the Court’s snippet of dicta will keep the argument open.

Most Court watchers knew the debtor was in for a particularly tough time when the Solicitor General moved to intervene on behalf of the lenders. I wonder how many times the SG has been on the losing side in a bankruptcy case? And the SG’s argument caught the Court’s attention: “That right [to credit bid] is particularly important for the Federal Government, which is frequently a secured creditor in bankruptcy and which often lacks appropriations authority to throw good money after bad in a cash-only bankruptcy auction.” If you’re a legal realist, this is the nub of the Court’s “no textual ambiguity” interpretive bent. To permit a plan of reorganization to deny the right to credit bid would be to open the door to sales over the objection of the federal government. And, unlike private lenders who frequently have the wherewithal to pony up enough cash to bid up to the amount of their loans (like in Philadelphia Newspapers), federal agencies simply do not have the power to do so. To hope for the Court to cut off its co-equal branches like this was a lot for the debtor to expect.

Scott Pryor

Guest Blogger Scott Pryor

I'm pleased to welcome into the Lounge my friend, and Regent law professor, Scott Pryor (pictured).  Scott teaches and writes in the UCC/commercial/bankruptcy area.  He has been at Regent since 1998, was a Fulbright Scholar (India) in 2009, and a visitor at Campbell during the 2010-11 academic year.  You can view a list of his scholarly works (many of them in downloadable form) by clicking on the link above. 

And he has his own blog:  Pryor Thoughts.

Scott will be sharing his thoughts on the U.S. Supreme Court's decision, announced earlier today, in the bankruptcy case of RADLAX GATEWAY HOTEL, LLC, ET AL. v. AMALGAMATED BANK.

Scott's first post:

Plain Meaning With a Twist

While it might not pack the excitement of some Supreme Court cases, RadLAX Gateway Hotel v. Amalgamated Bank is certainly important to the world of bankruptcy law.  On Tuesday the Court made an easy case of it, perhaps a bit easier than it should have but one that I ultimately believe was correct.  (Disclosure: I was one of the signers of the so-called “Professors’ Brief” urging the Court to affirm the decision of the Seventh Circuit, which it did, albeit on different grounds.)

Overcoming a straightforward “plain meaning” argument by the debtor, the Supreme Court unanimously held that “or” doesn’t mean “or” when to do so would be “be hyperliteral and contrary to common sense.” When is that the case?  According to the Court, when to do so would allow the general rule to swallow the particular.  A rather pedantic position but one that the Court uses with some regularity.

And how do we know when that’s the case?  When is the plain meaning not so plain?  Here the Court (did I mention that Justice Scalia authored the Court’s opinion?) cited two factors.  When application of the general principal would render the specific rule superfluous.  In other words, when the specific maps entirely within the general rule.  And, second, when there are no “textual indications that point in the other direction.”  Of course, that’s what RadLAX argued here; that the disjunctive “or” between Bankruptcy Code § 1129(b)(2)(A)(ii) and (iii) contraindicated the general rule of statutory construction. But there were no buyers on the Court for RadLAX’s argument. Some thoughts on why later.

Memorial Day

Well, given my interests in cemeteries and memory, Memorial Day is one of my big holidays.  And so digging deep in the stock of photographs, I thought that I'd post a couple of pictures I took last summer of cemeteries.  The first is the section for Union soldiers in the Mount Moriah Cemetery in West Philadelphia.  I was there with Norman Stein, checking out the cemetery, which has undergone a real transformation of late.

The second is of the Chester Rual Cemetery. which was estalished during the Civil War.  I blogged a little bit about this last summer.  I not all that happy with this version of the Chester Rural Cemetery, but I needed something with the US flag -- preferably lots of US flags -- and this seemed the best of what was available.  I spend so much time in the south that my stock is much deeper in monuments to the Confederacy than the United States.  The former are obvioulsy inappropriate for today.  Though I did think about a photograph or two of people who fought in the Spanish American War and whose ancestors fought for -- or otherwise supported -- the Confederacy.  I have one of those from the Clemson Cemetery (of a Calhoun descendant) and also one from the Spring Hill Cemetery in Lynchburg (of a Jubal Early descendant).

Gerber on Origins of Judicial Review

Here is a link to the Federalist Society's podcast of a discussion by Scott Gerber and James Pfander about Gerber's new book, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787.  I haven't yet had a chance to read the book, but I'm looking forward to it.