Out here in the great Pacific NW, the Portland outpost of the Ninth Circuit Court of Appeals just had a fantastic book club discussion of DavidLat's new novel, "Supreme Ambitions," hosted by none other than Judge Susan Graber. As the Washington Post noted, "Supreme Ambitions" is "an engrossing page-turner that focuses on the ... subject of federal judges and their law clerks." It's also a thriller, a love story, and tale about an ethical quandry--all wrapped up in one extremely diverting novel!
Among his other pursuits, Lat is founder and managing editor of Above the Law, and thus tightly plugged into the sturm und drung of being a newly graduated lawyer in the 21st century. This, combined with a tremendous variety of ages and experience at the book club luncheon (ranging from fresh-faced law clerks to almost 30 years on the federal bench), made for a fascinating and wide-ranging discussion about the topics in the book.
So as not to give away the plot of the book (which I highly recommend), I wanted to focus on one topic that sparked a good discussion at the book club meeting: the question of confidentiality. Judicial clerkships are an interesting beast, yoking the appointed or elected judges to brand new law graduates, and giving these law clerks unprecedented access to confidential information and influence over how cases are decided. How strong is the ethos of confidentiality in this atmosphere? If there is potential wrongdoing by a judge, is it the law clerk's duty to report it? Or are law clerks simply extensions of the judge, not authorized in their own right to do anything without the imprimatur of the court?
We've had law clerk confidentiality leaks before, of course. Edward Lazarus, a former Blackmun clerk, famously--and controversially-- published an entire book about the "secrets" of the Supreme Court in Closed Chambers. As the blurb for the book itself notes, this caused a "firestorm of controversy," with an argument about confidentiality and ethical violation pitted against an argument about openness and transparency in the justice system.
This last point, in my opinion, is why both lawyers and laymen have a constant fascination with what goes on inside the judiciary. Much of American adjudication takes place behind closed doors. Any insider account is all the more thrilling because the general public knows so little about the machinations of decision-making. This is particularly true in criminal justice, where we have gone from a system of jury trials to a system of plea bargains, shifting the adjudications from public to private. The public simply desires to peer behind the alabaster columns and underneath their robes, whether it's the local judiciary or the Supreme Court (which still refuses to allow cameras for oral arguments!)
In any case, if you want to have a captivating read that also gives you the inside scoop on the exciting life of a 9th Circuit law clerk in glorious Pasadena, CA (home to my beloved judge A. Wallace Tashima) , be sure to pick up Supreme Ambitions!
In recognition of the release of the SSCI Report, I thought I would share a couple of pieces that I wrote about the torture of a detainee that I represented at Guantanamo. The first article, which appeared in the Harvard Human Rights Journal is entitled, Closing Argument at Guantanamo: The Torture of Mohammed Jawad Download 22 HHRJ 401 Frakt Article. The second piece, a sort of a sequel to the first, was published by the PEN American Center, and is entitled Closing Argument at Guantanamo II: The Torture of Mohammed Jawad, Continued. Download Closing argument torture 2
When it comes to family disputes about inheritances, truth can be much stranger than any hypothetical I might generate on my own. A New Hampshire woman is accused of conspiring to remove her father's remains from the local cemetery. A vault was cracked and the decedent's casket was opened.
Police believe the casket was pulled out after Melanie Nash commented about her father being buried with "the real will." A police affidavit said she didn't find a will, only a pack of cigarettes in her father's hand.
Nash told police she did not receive anything when her father died and had been thinking of digging up the grave for years to prove her sister, Susie Nash, "hid the will." Susie Nash has said there was only one will when her father's estate plan was done in 1995 and everyone involved knew about it.
In her June 11 written statement to police, Melanie Nash wrote that she met up with others to go to the cemetery to go dig up her father's grave. Four people have been indicted in the case.
She wrote: "All this was done for the right reasons and I know my father would be OK with it."
She ended her statement with: "What we all did was to dig up my father's coffin, Eddie Nash, looking for documents. We did it with respect."
Nash, who died of a heart attack at 68, started an equipment business in 1979 still run by his family. He's since been reburied.
I have always enjoyed Al's various trivia questions, so here is one of my own.
I have been at the Conducting Empirical Legal Scholarship workshop over the last few days trying to learn something about statistical analysis for an article I am writing on the impact of Pres. Obama's judicial nominees on the Fourth Circuit's judicial ideology (as viewed through its labor and employment cases over the last decade).
In the course of the conference, I ran across this rather unusual object related to employment:
For years I have enjoyed the honor, opportunity and responsibility to serve the profession through various leadership roles in the American Bar Association (ABA). Some of these have included service as a section chair, a member of standing committees appointed by the President, a member of the nominating committee and as a member of the House of Delegates, the policy making body of the ABA. It is disappointing that more law school faculty and administrators fail to take an active role in the Association, especially since this is the national voice for our profession. There are scarce few members of the Academy represented in the House of Delegates. Yet, this body substantively debates myriad legal and policy positions on uniform acts and proposed regulatory and legislative change that impact the legal landscape. It is perhaps understandable (though not excusable) that there are not more members of the Academy in the House of Delegates since election or appointment to the House is accomplished through either leadership positions in state and local bar associations, leadership in ABA Sections, or a small number of delegates elected by the membership running either at-large or representing certain constituencies.
The ABA membership structure benefits most law schools that opt for a law school-wide membership for faculty. There are many good reasons for law faculty to actively engage with the ABA through substantive sections and committees. For example, the sections have robust publishing programs that include books, magazines, sometimes law reviews/journals and newsletters. Not only is it a good way to stay current in a field, but faculty could have the opportunity to reach thousands of lawyers across the country by publishing with the ABA. The ABA also has an extensive CLE programming throughout the year and not just in conjunction with regularly scheduled meetings. The webinar and teleconference CLE formats not only allow you to listen in from your office, but you have the opportunity to participate as presenters. This involvement is great because in part, it lets practitioners know who you are and the kind of research and scholarship you are producing, and of course like publications it helps to brand you with the name of your school. Sections and committees also develop proposed resolutions to the ABA House of Delegates that may shape the future policy of the Association and lead the way for law reform. This can be another avenue to pursue reform initiatives individual faculty may be advocating through research and scholarship endeavors. Another great benefit is networking. By showing up in person at various ABA meetings, faculty get to meet exceptional lawyers from across the country who can both help when needed to answer questions about unique legal doctrines in a given state, and who also may be in a position to hire your students after graduation.
It is true that the ABA Section on Legal Education is a “natural” home for many academics/ administrators, and that is the place where accreditation and standards issues are debated and approved. I am not discussing the Section on Legal Education or those types of issues in this blog entry, since my purpose is different – it is to raise awareness of other important contributions we can make to the profession as a whole through the ABA and how active involvement benefits our roles as teachers and scholars. However, I will note that at the last meeting of the ABA House of Delegates in San Francisco in August, there was a spotlight program on the challenges facing legal education with two members of the academy presenting. Further, the ABA Task Force on the Future of Legal Education is an initiative arising from the broader ABA and not from the Section on Legal Education.
In short, my anecdotal observation based on active ABA participation over the last two decades is that too many colleagues in the Academy are missing out on positive opportunities by accepting passive membership in the ABA and not taking a more active role.
I'm a pack rat and one collection that I carry with me from place to place is my grandfather's 1936 Encyclopedia Britannica. Once in a while I pull a volume off the shelf and read. This morning, I flipped to "American Literature" (contained in Volume 1, A to Anno). The entry includesd a nice plate with photos of the 20 authors editors deemed image-worthy. Keeping in mind that these authors had to be recent enough to have been photographed, I was intrigued by the editors' choices. Who might you have guessed? They are:
My colleague at Drexel, Lisa McElroy, has a pretty powerful piece up at Slate today entitled Worrying Enormously About Small Things. In it, she describes her long-term battle with a severe anxiety disorder - from her sophomore year in college through her receipt of tenure last month. Despite the efforts of high-profile folks like Tipper Gore, mental illness too often remains a taboo topic, relegating those who have it to a very lonely closet. I appreciate Lisa's openess; it's an important contribution in the ongoing struggle to sustain a safe space for conversations about mental illness.
North Carolina’s Research Triangle is a glorious place to live. Besides the benefits of three major research institutions within a half-hour of each other (UNC-Chapel Hill, Duke and NC State), it’s warm, green, diverse, friendly and overflowing with great food and culture.
But living in a college town can have its dangers. This week’s police blotter in Chapel Hill reports that a developer building a small residential enclave near my neighborhood has had the development’s new street sign stolen off the pole three times since January. The new street: Road Less Traveled. For those who took the Road Less Traveled, I want to know: Did it make all the difference?
This is what happens when people read. Poetry corrupts; good poetry corrupts creatively.
thanks to Dan and Al for having me here for a while.
start off with the obvious question of what is “veterans law,” anyway? You will be forgiven if you have no idea how
to describe it off the top of your head. Veterans law is not featured at most law
schools for the simple reason that veterans benefits claims were immune to
judicial review for the first 200 years of our history. Since the Court of Appeals for Veterans
Claims started operations in 1989, there have not been that many practitioners,
nor much time for them to migrate to the academy.
were looking on the categories listed to the left side here, you might place veterans
law into “Stuff You Cannot Categorize.” Michael
likes to refer to it as a platypus,
and that analogy has a lot of power. You can look at veterans law as a strange
collection of parts that each evolved in isolation to solve familiar
problems. Somehow it manages to persist
and function even though the sum can appear bizarre. On closer inspection, though, it is not so
strange. In practice, it is a mixture of
administrative law, torts, and evidence, with strong undercurrents of civil
procedure and due process. Whether its
unique approaches to these areas can be justified as better serving veterans is
something that independent legal thinkers could be tremendously helpful in
is why veterans law is an interesting and important challenge for the legal
academy. It is a
legal system that is not functioning well, even though there are no
ideological differences to frustrate the execution of the mission. On the surface, it is composed of countless “veteran
friendly” rules and procedures, yet the total is far less than the sum of its
parts. Despite the best of intentions,
it suffers from severe system effects.
it is a system that is in desperate need of experts in the underlying areas to
examine how the system handles evidence, causation, pleading, discovery, separation
of powers, and many other issues. Jon
Stewart nicely expressed the point I have been making for years: The veterans benefits
system is crucial to anyone who supports a substantial role for the
administrative state, because if you cannot make this system work with all the
political support and funding it has, then how can you expect anyone to believe
that government can solve actual controversial problems?
I am here for the next four weeks, I want to explore how the system works and
what might be learned from related areas of law. Before I dive into the current issues, I will
provide some background, including a couple of days on the tumultuous
historical path leading to today’s system, and then an outline of how the
system presently works. Finally, I will
spend the majority of my time highlighting important aspects of the system and
what issues could use more study by those with an outside perspective.
this is it in a nutshell: Veterans law
is the litmus test of whether the modern administrative state is the solution
or the problem. Even if we did not owe
our most sincere efforts to the men and women who have given so much in
service, that challenge would be reason enough for anyone with an interest in
legal theory to consider what can be done to make the system not just
functional, but exceptional.
Note: These writings are made in my personal
capacity, and are not to be construed as attributable to the Department of
Veterans Affairs, the Court of Appeals for Veterans Claims, or other entities.
Nice little bit from artist Vi Hart over at Brain Pickings. Taming the Trolls. A little uncomfortable psychoanalysis in the piece if negative comments get you down (which they do me from time to time). Brain Pickings is a great site and offers lots of wonderful tidbits of interest to academics and non-academics alike -- most of which have nothing to do with trolls and such.
Some of my students recently made me aware of a practice by employers of asking job applicants to disclose Facebook passwords and usernames, or to actually log in to their Facebook accounts during a job interview and show prospective employers all their social networking information. There are a few news stories here and here that suggest this practice has not become widespread, but my students' own experiences suggest a different story. Is anyone aware how prevalent this practice is and whether there is any meaningful recourse against it?
In all the years I've taught bankruptcy, I've never more than mentioned
Chapter 9 of the Bankruptcy Code. Chapter 9 deals with municipalities in
financial distress (and Chapter 1 of the Code defines
"municipalities" more broadly than one might expect).
Notwithstanding my limited knowledge of this narrow field of the law, the
folks at the American Bankruptcy Institute asked me to moderate a call-in
teleconference about the current state of Chapter 9. I was thankful that the
panel of experts included the judge handling the bankruptcy of Stockton,
California, a lawyer deeply involved with the Jefferson County, Alabama Chapter
9, Professor Juliet Moringiello from Widener who's written about the abortive
bankruptcy of Harrisburg, Pennsylvania, as well as a representative of Wells
Fargo who crunches the numbers on the creditworthiness of municipal debt.
I'm attaching a link to the ABI Newsroom page here
from which you can connect to a recording of the teleconference. Not
surprisingly, I think it would be most interesting to folks who teach
bankruptcy law but there are some interesting Constitutional and local
government law questions lurking in the background.
While the final number for bankruptcies in 2012 isn’t yet in, there were 17
through the first three quarters of the year. That's only one fewer than the
greatest number since 1980 (18 in 1991) so I wouldn't be surprised to find out
that 2012 will have set a new record. The panel didn't have time to address
their predictions for 2013 but I suspect it will be about the same. The
continuing low costs of borrowing generally, combined with a continuing rise in
real estate values (and taxes), should keep most municipalities solvent, at
least for now. However, the continued inadequate funding of retiree pensions
and health benefits augurs ill for the longer-term future.
With all this in mind, perhaps I'll give Chapter 9 a full day this fall.
Thank you, Dan, for the kind words and giving me the chance to join you here. With the recent news that BP has agreed to plead guilty to 14 criminal counts, including manslaughter, and pay to DOJ more than $4 billion to resolve all criminal charges stemming from the 2010 Deepwater Horizon blowout, I have been thinking much about an issue I haven’t thought much about since my days in practice as an aviation litigation attorney, namely the criminalization of what traditionally had been treated as simply tortious. Excluding, of course, criminal investigations of intentional terrorist activity such as in the wake of Pan Am 103 and activity on 9/11, criminal investigations and prosecutions of transportation accidents were actually few and far between until we saw an uptick beginning in the early to mid-1990s beginning with the crash of Air-Inter flight 148 in Strasbourg, France, ValueJet flight 592 and then the Concorde crash in 2000. More recently, a criminal investigation has been launched into the April 2012 crash of a 737 outside of Islamabad. I and many of my former colleagues and former FAA Chief Counsel, Ken Quinn, see here, have grave concerns about the negative impact that criminalization of tortious activity has on the ability of safety agencies both inside and outside the aviation arena to comprehensively investigate the cause of the accident and improve the safety of the activity that led to the harm (i.e., air safety, oil drilling safety) and prevent future incidents. In practice, when criminal prosecution became a real possibility we saw the immediate “lawyering up” of key employees with potentially important safety-related information and the resultant non-cooperation or diminished cooperation in the safety investigation for fear of criminal prosecution. How do we prevent the next Deepwater Horizon blowout if employees won’t talk to the safety investigators?
A bold statement! Catch your breath and savor it (the statement, not your breath).
Some of you may be following the developing issue surrounding the dubious (and profoundly piggish) tactic indulged in by many private equity fund managers of avoiding (evading?) hundreds of millions of dollars in taxes on the management-fee portion of their compensation. The strategy involves "waiving" the management fees--except they're not really waived, they're "invested" in the fund or a related vehicle and paid to the manager later. So instead of paying the 35% ordinary income rate on the management fees, these Masters of the Universe pay the 15% capital gains rate--and pay it years after they earned the management fees. The amounts involved are staggering. Bain Capital alone has engaged in this tactic as to over $1 billion (yes, with a "B") in management fees, resulting in over $200 million in unpaid taxes from this company's personnel alone. And this for people already taking home tens of millions of dollars a year after taxes.
New York Attorney General Eric Schneiderman has issued subpoenas to explore how many New York residents may have stiffed his state's treasury in this fashion. The New York Times reported on it over the weekend here.
The Times' interest in what might be considered an abstruse tax issue is fueled in siginficant part by Republican Presidential Nominee Mitt Romney's longstanding relationship with Bain Capital, and the possibility that he personally benefited from these tactics either while he was actively working there, or as part of the "retirement" package he received when he left. Unlike every presidential candidate in recent memory, Romney has famously refused to disclose his tax returns except for the last two years, fueling speculation that he is either a tax cheat or at the least the beneficiary of what are referred to in polite company as "aggressive" tax strategies available only to the superrich, resulting in his paying effective tax rates that are a fraction of ordinary working folks'. (It is worth noting that not every private equity fund played this game. A number of the most prestigious and successful funds, including Blackstone and Carlyle, reportedly eschewed it.)
Romney supporters deride Attorney General Schneiderman's investigation as politically motivated, and Schneiderman is in fact a Democrat reportedly with ties to the Obama administration. Why that should discredit the inquiry whether a major-party candidate for President has underpaid his taxes by millions in the midst of an economic crisis--an inquiry that the candidate could resolve simply by disclosing to the electorate the same information every major party candidate for President has disclosed for decades--remains a riddle to me, but perhaps I lack vision. To be fair, a Romney tax advisor represented categorically to the Times that "Governor Romney's retirement agreement did not give [his] blind trust or him the right to [engage in the fee-waiver strategy], and I can confirm that neither he nor the trust has ever done this, whether before or after he retired from Bain Capital." The irreducibly concrete among us may be forgiven for preferring show to tell, but again I perhaps lack vision.
This is all very interesting, Bernie, I hear you say, but you drew me into this rather dismal lesson on federal tax policy on the premise you would show how the academic work I publish actually might matter. Fair enough: Prepare to be exhilarated.
The Wall Street Journalreports today (sub. req'd) that "a person familiar with [the NY AG's] office's thinking" has explained that the subpoenas were issued in July, before this issue sprang into public consciousness, and were raised by the office's taxpayer protection bureau (a bureau that apparently protects the taxpayers who do pay their taxes by pursuing the ones who don't) based on discussion of the issue in (wait for it . . .) "academic papers." I would be remiss if I failed to point out that this phrase in the online report is hyperlinked directly to my brilliant and perspicacious colleague Gregg Polsky's 2009 paper describing and condemning this very strategy, Private Equity Management Fee Conversions, 122 Tax Notes 743 (2009) (ssrn here).
So sharpen your nibs, my friends--real regulators may rely on your work to brook the high and mighty. And of course your mom likes it too. Hats off to Gregg Polsky for making himself useful!
As many of you are no doubt aware, the centennial of Julia Child’s birth was August fifteenth. I was reminded of this yesterday when we enjoyed a Salade Niçoise made from her recipe:
While this may not seem to have anything directly to do with the law, it served to remind me of a conversation I had with several of my colleagues a few years ago about the people who most influenced our legal career. As we listed the individuals who we felt were the most influential, all of us listed more individuals who are not lawyers than ones who are although all of us listed a least one first year law school professor. The “rules” of the game we played excluded family members.
My list, in order of my exposure to them:
Julia Child — The structure she created to explain the French culinary tradition convinced me that organization enhances all learning. I have been teaching my students to “cook” ever since.
Joseph Koffler — my first year torts professor who demonstrated that demanding high performance from your students is crucial, but not as important as demanding it from yourself.
Douglas Hofstadter — a computer science professor at Indiana University whose 1979 book, Gödel, Escher, Bach: An Eternal Golden Braid, is the most significant work of non-fiction I have ever read.
So who are the three to five people who most influenced your legal career and why?
Am I alone in noticing that Google searches often load relatively slowly now, with unpaid results appearing about a half second before the paid ads at the top of the page? More than once, at a particularly impatient moment, I've reached to click on the first (unpaid) result at the top of the page, only to discover that an ad had loaded into that same space a split second before my finger managed to complete the click. I've then been directed to the advertiser.
This is a little irritating for me (though I've also accdientally landed on a the same page - except through a paid click.) But I have to think this could be very irritating to those advertisers who pay for my uninteded visit. It's not like I stay on the page. I quickly back out, re-google, and wait for the results to fully load.
I wonder if this is just a glitch or an actual strategy?