The Faculty Lounge

Sources, Methods, and Mueller’s Investigation

Special Counsel Robert Mueller filed charges against 12 Russian military intelligence officers on Friday for hacking the Democratic Party’s computer networks. The indictment is available here on the Justice Department’s website. 

In compelling detail, the indictment reveals how the Russian government engaged in a massive campaign to steal the Democrats’ computer files and then “stage releases of the stolen documents to interfere with the 2016 U.S. presidential election.”

The details are eye-catching, particularly the elaborate measures that the GRU—the premier Russian Military Intelligence agency—took to cover its tracks. For example, paragraph 58 alleges that the Russians “used bitcoin when purchasing servers, registering domains, and otherwise making payments in furtherance of [the election] hacking activity.” Paragraph 59 reveals additional methods the GRU adopted to escape detection:

“To further avoid creating a centralized paper trail of all of their purchases, the Conspirators purchased infrastructure using hundreds of different email accounts, in some cases using a new account for each purchase. The Conspirators used fictitious names and addresses in order to obscure their identities and their links to Russia and the Russian government.”

The GRU’s effort to conceal its role in the 2016 election failed. The indictment identifies the 12 defendants with extraordinary precision, including their names, many of their ranks, and even the location of the buildings where they worked in Moscow.

But the remarkably detailed charges raise a serious concern of their own: has the indictment itself potentially compromised the American intelligence community’s sources and methods? If so, why would Mueller take that risk? 

Your Cheatin' Heart

Hank Williams recorded Your Cheatin' Heart at his last recording session on September 23, 1952.  He died the following New Year's Day, and never performed the song before an audience.  Your Cheatin' Heart was released at the end of January, 1953, quickly reaching number one on the Country & Western chart. It has been covered by numerous artists ever since, most notably Ray Charles and Patsy Cline. 

 

Kidney Donor Stories

Over at Market Design Blog, Al Roth posts part of an incredibly moving email conversation with a donor who became part of a kidney paired exchange after hearing what I think is one of the best Freakonomics episodes of all time. As the donor describes it:

Then I heard a follow up episode that united a donor with his recipient.  Stephen Dubner was crying... I was crying... I called Mayo Clinic the next morning and signed up for testing.

You should definitely read the entire exchange here. And if you have not yet listened to the pair of Freakonomics podcasts that led to the donation, you should do so, but only if you’re in a setting where it’s okay to cry. The second podcast is the one the donor is referring to, in which a donor is reunited with his recipient.

Freakonomics podcast: Make Me a Match (Rebroadcast)

Freakonomics podcast: Ask Not What Your Podcast Can Do For You

I found this part of the exchange particularly interesting:

"The rest is a long story and I know you are a busy man so I'll skip most of it.  I ended up being part of a pair, instead of an altruistic donor.  There was a man who worked with my wife that needed a kidney.  He once saved her life with the Heimlich maneuver so it was pretty poetic that I could save his.  He received his kidney from a bridge donor and I gave mine to someone on the diseased donor list.  So I got to save two lives!  I'm doing great.  I went back to work a couple of weeks ago.  I have no regrets and I hope I can inspire others to do something selfless and extraordinary in their lifetime. (emphasis added)

This ability to help more people, through a chain or paired exchange, rather than a single recipient, as through a donation to the waitlist, seems to be something that (understandably, I think) provides kidney donors with a lot of satisfaction. More generally, it's important to hear these personal stories from kidney donors. 

I’ve blogged a few times about kidney exchange, for example:

Custom, Contract, and Kidney Exchange

Global Kidney Exchange (GKE) to Overcome Financial Barriers to Kidney Transplantation

GKE Debate in Current Issue of The American Journal of Transplantation

Reverse Transplant Tourism

Our Day of Market Design

 

Left-Wing Anti-Semitism in California

Yair Rosenberg has an excellent article in Tablet about the anti-Jewish posts of a Democratic candidate for the California state assembly.  Here are some excerpts:

Maria Estrada is running as a progressive challenger to California State Assembly Speaker Anthony Rendon in the state’s 63rd district. Endorsed by multiple local chapters of the Bernie Sanders-founded Our Revolution, she came in second in the June primary with 28 percent of the vote, assuring her a showdown with Rendon in the general. 

On social media, she has declared that, “I, for one, enjoy listening to Farrakhan’s sermons.”

This past May, Estrada also attacked Eric Bauman, the chairman of the California Democratic Party, telling him to “try keeping your party, your religion and your people in check.” (Bauman is an openly gay Orthodox Jew.)

Indeed, when confronted with her history of anti-Semitic statements, Estrada knew exactly what to say. “To be clear, I am anti-Zionism, not anti-Semitic,” she told The Forward. Estrada did not explain how attacking California Jewish political figures over their religion or promoting Farrakhan were “anti-Zionist” positions. But she knew that by simply throwing Israel into the conversation and bashing it, she might be able to cash a “Get Out of Anti-Semitism Free” card among her compatriots.

As Berkeley’s David Schraub has written, “Anti-Semitism will always be expressed in the dominant language of the place and the time, and it is entirely predictable that people will seek to express anti-Semitism in ways that enhance rather than detract from their social standing.” Thus, in a deeply religious society like medieval Europe, anti-Semitism would be justified through theology, whereas in societies that esteemed science like Nazi Germany, anti-Semitism took on the imprimatur of “race science.” In both instances, the problem was not “religion” or “science,” but how these legitimate endeavors were appropriated and perverted by bigots to serve anti-Jewish ends.

Schraub and Rosenberg might have added that anti-Semitism in the Soviet Union was expressed under the guise of dialectical materialism and anti-nationalism, dating back to Stalin's tract "Marxism and the National Question," which was written to demonstrate that Jews do not constitute a "nation" in Marxist terms.

Something similar, writes Schraub, is happening in progressive spaces today: The entirely legitimate enterprise of criticizing Israel is being used by anti-Semites to launder their hate. “Precisely because there are perfectly valid critiques of Israel that are, on their face, wholly laudable from within a progressive paradigm, a speaker harboring antipathy towards Jews and looking for a socially acceptable vector to express them will gravitate toward that issue.” In this manner, anti-Semitism is repackaged as “Israel criticism” in left-wing spaces.

Readers may recognize David Schraub's name, as he is a frequent commenter on this blog.

Needless to say, Donald “Very Fine People” Trump and the Republican Party have not exactly passed this test with flying colors, and have repeatedly failed to ostracize bigots in their midst. Whether the chapters of Our Revolution that endorsed Estrada will do better remains to be seen.

You can read the entire Tablet article here.

CFP: Georgia State Law Review Symposium on Legal Analytics

 

This just in:

The Georgia State University Law Review invites legal scholars, advocates, attorneys, judges, data scientists, and other practitioners to submit pieces for its upcoming symposium issue on legal analytics. The symposium will focus on several current challenges in legal analytics, including predictive technology and market forecasting. Charlotte S. Alexander, Director of the Legal Analytics Lab at Georgia State University, along with Anne M. Tucker, Associate Professor of Law at Georgia State University, both leading scholars in the field of legal analytics, are co-chairing the symposium program which will feature Shawnna Hoffman, the IBM Global Co-leader for the Cognitive Legal Practice as the keynote speaker. Authors are invited to submit pieces on related topics.

Our format is flexible to encourage academics, advocates, attorneys, judges, data scientists, and other practitioners to participate. We welcome papers, essays, and symposium-length articles on legal analytics and related topics. Selected pieces will be published in Volume 35, Issue 4, in summer 2019. Final Articles are due from authors by December 14, 2018.

If you are interested in submitting a piece for our symposium issue, please email a short (no longer than one page) abstract of your proposed piece to gsulawsymposium@gmail.com by August 15. Please write “Symposium issue abstract” as the subject line of your email and include the approximate length of your piece.

 

Flacking for the President in Accepting Supreme Court Nominations

I listened live to Judge Brett Kavanaugh's remarks after being introduced by the president at the ceremony announcing his nomination.  Something struck me right out of the gates -- an expression not just of gratitude for the nomination but of praise for the president.  It was more than just praise, actually.  It was a factual assertion about how the president had performed better than any president in the history of ever.

Here's what he said:

Mr. President, thank you. Throughout this process, I have witnessed firsthand your appreciation for the vital role of the American judiciary. No president has ever consulted more widely or talked with more people from more backgrounds to seek input about a Supreme Court nomination. Mr. President, I am grateful to you and I am humbled by your confidence in me. Thank you.

This struck me as a very uncharacteristic thing for a nominee to say, so I went back and looked at all of the announcements since Reagan's first term.  I pulled out the words the nominees directed to, or stated about, the president who made the nomination.  Those little excerpts are below.

My instinct was right:  Kavanaugh's words were highly unusual, arguably unique.  (Only the loquacious Stephen Breyer is in the ballpark with Kavanaugh, and his comments didn't compare Bill Clinton to other presidents.)

Does this reveal anything meaningful about Brett Kavanaugh?  Hard to say.  This is a big moment in people's lives and they craft their words with great care.  I don't think we can say it means nothing.  To me, it faintly suggests a desire to stroke the president's ego, a hint of kowtowing.  You may see it differently.

Time will tell whether (what I see as) the genuflecting ends with his (presumed) confirmation.

Neil Gorsuch:

Thank you. Mr. President, thank you very much.  Mr. President, Mr. Vice President, you and your team have shown me great courtesy in this process, and you’ve entrusted me with a most solemn assignment.

… Mr. President, I am honored and I am humbled. Thank you very much.

Merrick Garland: 

Thank you, Mr. President.  This is the greatest honor of my life -- other than Lynn agreeing to marry me 28 years ago.  It’s also the greatest gift I’ve ever received except -- and there’s another caveat -- the birth of our daughters, Jessie and Becky.
 
… Mr. President, it’s a great privilege to be nominated by a fellow Chicagoan.  I am grateful beyond words for the honor you have bestowed upon me.  (Applause.)

Sonia Sotomayor:

Thank you, Mr. President, for the most humbling honor of my life. You have nominated me to serve on the country's highest court, and I am deeply moved….

Mr. President, I greatly appreciate the honor you are giving me, and I look forward to working with the Senate in the confirmation process. I hope that as the Senate and the American people learn more about me they will see that I am an ordinary person who has been blessed with extraordinary opportunities and experiences. Today is one of those experiences.

Elena Kagan: 

Thank you, Mr. President.  I am honored and I am humbled by this nomination and by the confidence you have shown in me.

…I have had the opportunity to serve under two remarkable presidents who have devoted themselves to lifting the lives of others and who have inspired a great many more to do the same. 

… Mr. President, I look forward to working with the Senate in the next stage of this process, and I thank you again for this honor of a lifetime.

Samuel A. Alito, Jr.

Thank you, Mr. President. Thank you very much, Mr. President. I am deeply honored to be nominated to serve on the Supreme Court, and I am very grateful for the confidence that you have shown in me.

… I look forward to working with the Senate in the confirmation process. Mr. President, thank you once again for the confidence that you've shown in me and for honoring me with this nomination.

John G. Roberts, Jr.

Thank you very much. It is both an honor and very humbling to be nominated to serve on the Supreme Court.

…I am very grateful for the confidence the president has shown in nominating me, and I look forward to the next step in the process before the United States Senate.

Ruth Bader Ginsburg

Mr. President, I am grateful beyond measure for the confidence you have placed in me, and I will strive with all that I have to live up to your expectations in making this appointment.

Stephen Breyer

I really am very grateful to you, and not only for the honor of this nomination but also for having honored the judicial branch of government, of which I am a part, by your deep personal involvement in making this choice. The effort that you put into this, Mr. President, testifies to your profound respect for the Constitution that you were sworn to uphold. I am also honored to be have been in the company of those you considered for this post, especially Secretary Babbitt and my colleague and very good friend, Judge Richard Arnold, whose talent and integrity have been made him the finest of judges.

… Once again, Mr. President, I am honored and humbled by this nomination. Joanna and I are grateful to you and Mrs. Clinton and for your warmth and hospitality.

Clarence Thomas

Thank you, Mr. President.  I am honored and humbled by your nomination of me to be an Associate Justice of the Supreme Court of the United States. 

… Thank you again, Mr. President.

David H. Souter

Thank you, Mr. President... If it were possible for me to express to you the realization that I have of the honor which the President has just done me, I would try, and I would keep you here as long tonight as I had to do to get it out. But I could not express that realization, and I'm not going to try to do the impossible. Beyond that, I hope you will understand that I think I must defer any further comments of mine until I am before the Senate in the confirmation process.

Anthony M. Kennedy

Thank you, Mr. President.  By announcing your intention to nominate me to the Supreme Court of the United States, you confer a singular honor, the highest honor to which any person devoted to the law might aspire.  I am most grateful to you. My family,, Mary and the children, also express their deep appreciation for reposing this trust upon us.

… I share with you, Mr. President, an abiding respect for the Supreme Court, for the confirmation process, and for the Constitution of the United States, which we are all sworn to preserve and to protect.  Thank you, Mr. President. 

Douglas H. Ginsburg

(did not speak)

Robert Bork

(did not speak)

Antonin Scalia

(couldn’t find video or transcript of ceremony)

Sandra Day O’Connor

(did not speak; indeed, was not even present)

A "Fairly Critical" Review of Interrogating Ethnography [UPDATED with a better link to the Monteiro and Roulet review]

Having linked to various favorable reviews of my books, it seemed only right to flag a negative review of Interrogating Ethnography, in this case written by sociologists Pedro Monteiro and Thomas Roulet and published in the journal Organization. I learned of the review from a tweet of Roulet’s, announcing “Our (fairly critical) review of Lubet’s book.”

They begin by faulting me for misunderstanding ethnography, saying that I erroneously expect ethnography to produce a “‘reasonably reliable rendering of the social world,’” when in fact “Ethnography is an interpretive work, and its goal is to offer a theoretical narrative of social life.” This is disingenuous. They attribute the first statement – seeking a “reasonably reliable rendering of the social world” – to me, when in fact, as is unmistakable in my text, it is a quote from Mitchell Duneier, the Maurice P. During Professor of Sociology at Princeton and one of the most esteemed ethnographers in the United States. I doubt that Duneier himself misunderstands ethnography, but the full quote would still be relevant to any area of academic inquiry, as it refers to “the reader’s right to a reasonably reliable rendering of the social world (italics added).” Monteiro and Roulet evidently adhere to a version of ethnography in which "Claims and empirical accounts are always relative and subjective to the person making them," but Duneier's concern for the reader makes it clear that not every ethnographer is quite so dismissive of objective reality.

In other words, facticity is an essential underpinning to social science, even of the most interpretive sort. And one needn’t expound on the broader goals of ethnography – including, as Monteiro and Roulet put it, the “aim to chronicle social life, recognizing their partisanship, positioning and plurality” – in order to make some suggestions about the dependability and uses of informants and sources.  

Monteiro and Roulet then fall back on the claim that ethnography is “a way of making sense and reporting social phenomena in an empirical-lead, bottom-up manner . . . as a way to give voice to emarginated groups.” I don’t disagree, but I think there remains a difference between “giving voice,” and credulous reporting.  A subject’s impressions or beliefs are important, and may be crucial, but that does not mean they are accurate or true.  An ethnography of Trump supporters, for example, would give voice to their insistent belief that “illegal aliens” are drug smugglers, rapists, and generally dangerous criminals. In fact, undocumented immigrants commit fewer crimes than the native-born population, and a responsible scholar surely ought to include that fact in any subsequent ethnographic study.

Interrogating Ethnography makes suggestions for determining the trustworthiness of evidence, using legal practices only as a guide or metaphor. Its modest goal is to contribute to the field by proposing some ways to strengthen its factual foundations.  Monteiro and Roulet, however, conclude that “Steven Lubet seems to ask ethnography to drop its objectives, ideals and standards in an irrelevant quest for ‘generalizability.’” I do not know where they got that idea.  I do quote the University of Pennsylvania sociologist Charles Bosk on his own theory of sociological generalization, as well as Colin Jerolmack (NYU) and Alexandra Murphy (Michigan), who warn against ethnographers’ frequent “pseudo-generalizations,” but for the most part I caution against unsupported generalities rather than demanding them. In any case, readers may decide whether Monteiro and Roulet have been “fairly critical” of Interrogating Ethnography by accessing the full review here.

But if Monteiro and Roulet believe that the accuracy of facts never matters, well, let them come out and say it.  Most readers, I believe, will reject the idea that valid social science may rest on interpretation alone. To paraphrase Stephen Hawking, it can’t be turtles all the way down.

UPDATE: The links in the original posting were evidently paywalled. I have replaced them with one that should be freely accessible. It is also here.

A Window into Brett Kavanaugh’s Judicial Philosophy

Last night President Trump announced his nomination of Brett Kavanaugh to the U.S. Supreme Court. Judge Kavanaugh has served on the D.C. Circuit Court of Appeals since 2006, which means his long paper trail of judicial opinions will be closely scrutinized during his Senate confirmation hearings.

By any definition, Judge Kavanaugh is a conservative judge. His record on the D.C. Circuit leaves no reason to doubt that he will be more conservative than Anthony Kennedy, the justice he will replace. But the critical question is how much more conservative? Is Kavanaugh a traditional conservative like Chief Justice John Roberts, or will his voting record place him as far to the right as Neil Gorsuch and Samuel Alito? Might he even be as ultraconservative as Clarence Thomas?

Trump Pardons Oregon Cattle Rangers, Signaling Support for the Movement to Transfer Federal Lands to the States

The White House just announced that President Trump is pardoning Dwight Hammond Jr. and Steven Hammond.  They were serving prison sentences for arson on public lands.  Their sentencing triggered the occupation of the Malheur National Wildlife Refuge in 2016 that lasted more than a month and resulted in the death of a rancher.  You might recall that Ammon Bundy and the other leaders of the occupation justified it by arguing that federal control of the public lands was unconstitutional.  This pardon sends a clear signal that Trump is sympathetic to these claims, just as his pardon of Joe Arpaio demonstrated his support for “tough” (and illegal) immigration enforcement.  In fact, during her press conference, Sarah Huckabee Sanders noted that the Hammonds have the widespread support of “farmers and ranchers across the West.”

As FL readers may recall, I have an article coming out in the Harvard Environmental Review contending that the constitutional arguments against federal land ownership are wrong under all major theories of constitutional interpretation, including originalism. Simply put, the text of the Constitution, Supreme Court precedent, and constitutional history all strongly support the fact that Congress has the power to indefinitely own land within the states.  I find it ironic that Trump is showing his support for such a specious constitutional argument the day after he nominated a new Justice to the Supreme Court.  Given Bundy’s acquittal and recent state level policies, however, this will probably play well with his base in the West.

July 9, 1868

Today is the 150th anniversary of the ratification of the Fourteenth Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Jack Is on the Right Track

In 1960, Frank Sinatra recorded this campaign song for JFK. My parents had the 45 and we played it pretty often (I was eleven).  Can't explain why I just remembered it, but I though some readers might enjoy it.

Note that Kennedy's slogan in the second verse was "Keep America Strong," as he ran to the right of Nixon on national defense.

If there was a musical rejoinder from Nixon, or any comparable campaign song, I never heard it.

Dust My Broom

Dust My Broom was first recorded by the Mississippi Delta's great Robert Johnson in 1936.  Fifteen years later, Chicago's Elmore James took Johnson's solo number and turned it into an electric blues classic by adding a slide guitar and a backup band. Since then, Dust My Broom has been widely covered by blues and rock musicians, although not always with a slide guitar.  The first two cuts below are Robert Johnson and Elmore James, both audio only, followed by a variety of covers with videos when I could find them.

Robert Johnson 

The Court Martial of Jackie Robinson

Seventy-four years ago tonight 2nd Lieutenant Jack Roosevelt Robinson, an African-American army officer from California, refused to move to the back of a military bus at Camp Hood, Texas. Robinson’s courageous and principled decision set off a legal controversy that nearly changed the course of American history.

Freedom for the Oberlin Rescuers

On this day in 1859, the Oberlin Rescuers -- including Charles Langston and Simeon Bushnell -- were freed from jail after 83 days of detention.  Langston and Bushnell had been tried and convicted, as I explained in yesterday's post, and the indictments for violating the Fugitive Slave Act were dismissed against the others, after a standoff between local and federal officials that might or might not be appreciated by today's extreme federalists. 

The charges against the rescuers were based on freeing an alleged fugitive named John Price from the hands of a band of slave hunters led by the Kentuckian Anderson Jennings, whose testimony at the first two trials led to the convictions of Langston and Bushnell.  Before the third trial could be held, however, Jennings and the other slave hunters were indicted and arrested in abolitionist Lorain County for kidnapping Price, who was said to be "a free black person." 

Like every other state in 1859, Ohio followed the "interested party rule," which meant that Jennings and the others could not testify in their own defense, and thus could not identify Price as a fugitive slave. Price himself had been escorted to Canada -- and there were no photographs or other documentation -- so it was therefore impossible for the defendants to prove that they were acting lawfully under the Fugitive Slave Act. There were plenty of witnesses to Price's abduction and subsequent imprisonment by the slave catchers, however, and Ohio followed a presumption of freedom for African Americans (as opposed to southern states, which adhered to a presumption of enslavement for blacks).  

To be sure, there was no real doubt that Price was actually a fugitive, but it still appeared certain -- due to the evidentiary rules of the day -- that Jennings and the other federal witnesses would be convicted in the state court.

There followed a furious round of negotiation between the Republican Lorain County prosecutors and the Democratic U.S. attorney in Cleveland, resulting in the dismissal of all charges and the release of all prisoners on July 6, 1859.

Overrule Hirabayashi! (Updated)

In today's Los Angeles Times, I argue that the time has come to pay attention to the awful Supreme Court decision that has hidden in the shadow of the awful Korematsu case:  Hirabayashi v. United States. 

It's just as flawed, and arguably more dangerous in today's world.

UPDATE:

Like clockwork, when I publish a piece in the lay press about the lawfulness of the treatment of Japanese Americans in WWII, I receive angry emails from people of German and Italian ancestry who insist that I am mistaken in asserting that government orders targeted American citizens of Japanese, but not German or Italian, ancestry.  They always want me to know that Germans and Italians were also interned during the war.  What they say is true, but it is always non-responsive to my arguments about the treatment of American citizens of Japanese ancestry.

I usually reply at least once to these folks with a calm and civil explanation of the differences in treatment of American citizens of Japanese, as opposed to German and Italian, ancestry.  They usually then get angrier and tell me that NO IN FACT I AM WRONG AND I NEED TO READ THIS WEBSITE THAT LAYS IT ALL OUT SO THAT I CAN UNDERSTAND THAT GERMAN AMERICANS AND ITALIAN AMERICANS WERE JUST AS MISTREATED AS JAPANESE AMERICANS!!!!!

S0metimes I don't respond further; sometimes I take one more stab.

Tonight I took one more stab. 

I am posting here what I wrote tonight in my second response to a correspondent.  I'm posting it here mostly so that in the future I can just link to this blog post rather than writing it all out over and over again.  I'll put it in comic sans so that it looks lighter and more fun.

I do appreciate your interest in this terrible period of history (for people of many ancestries).  Your objection is one I see very commonly when I write about American citizens of Japanese ancestry:  people of German and Italian ancestry often write to me to tell me that I am mistaken because I am ignoring the stories of Germans and Italians.

It’s absolutely true that curfews were imposed on some Italians and Germans, and also that some Italians and Germans were imprisoned, in the months after the USA entered the war.

There are a number of legal distinctions, however, between the treatment of people of Japanese, German, and Italian ancestry.

There was no government order that imposed burdens on people of German and Italian ancestry without regard to US citizenship (meaning on aliens and citizens alike). 

Actions were taken against identified German and Italian aliens.  Curfew orders were imposed, but not against American citizens of German or Italian ancestry.  In the citizen category (as distinguished from the category of aliens), the only Americans affected were those of Japanese ancestry.  Here's the relevant language:

All alien Japanese, all alien Germans, all alien Italians, and all persons of Japanese ancestry residing or being within the geographical limits of Military Area No. 1 . . . shall be within their place of residence between the hours of 8:00 P.M. and 6:00 A.M., which period is hereinafter referred to as the hours of curfew.

There were also detentions of certain Germans, Italians, and Japanese after Pearl Harbor, but these were pursuant to Presidential Proclamations 2525, 2526, and 2527, not Executive Order 9066.  The authority for those proclamations was the Alien Enemy Act of 1798, which gives the president pretty much complete authority over nationals of countries with whom the United States is in a declared war.  By definition the authority under those proclamations extended only to foreign nationals.  So there were curfews and arrests imposed, but they did not directly apply to US citizens of German and Italian ancestry.  In some situations the minor US citizen children of German and Italian aliens went into imprisonment with their alien parent or parents, but that was because they had nowhere else to go – not because they themselves were directly subject to the government orders.

It's also worth noting that the programs adopted under those Presidential Proclamations were based on some sort of individualized suspicion, and those subject to them were entitled to hearings.  To be sure, the suspicions were often groundless, and the hearings usually shoddy at best.  But they happened.

A couple of thousand Japanese aliens were swept up under those proclamations as well, alongside the Germans and Italians.  But again, those Japanese aliens were identified individually rather than en masse.

The rest of the roughly 120,000 people of Japanese ancestry had a curfew imposed on them, were excluded from the West Coast, and were detained in camps pursuant to Executive Order 9066.  That was not grounded on the Alien Enemies Act – and it couldn’t have been, because the curfew and exclusion orders imposed under 9066 by their terms applied to American citizens of Japanese ancestry in addition to their immigrant non-citizen parents.

So, to summarize:  yes, around ten to twelve thousand German aliens and some hundreds of Italian aliens were affected by restrictions after the USA entered the war.  In some situations their minor US citizen children ended up being affected by what the government was doing to their parents.  I’m also aware of a small number of cases in which the government took actions against recently naturalized US citizens who’d come from Germany and/or Italy.

But that was a different program from the one that the government applied to Japanese aliens and US citizens of Japanese ancestry.  The program for people of Japanese ancestry effaced the distinction between citizens and aliens, was not grounded on individualized suspicion, and afforded no hearings.

 

Posthumous Pardons for the Oberlin Rescuers

In 1859, Charles Langston and Simeon Bushnell were convicted in federal court for the crime of rescuing a fugitive from slave hunters.  My new article in The Conversation makes the case for posthumous pardons:

Anti-slavery heroes Charles Langston and Simeon Bushnell deserve pardons too, President Trump

Steven Lubet

 President Donald Trump has exercised the pardon power more aggressively and creatively than most of his predecessors, granting pardons to political supporters such as Joe Arpaio and Dinesh D’Souza, and a posthumous pardon to Jack Johnson, the first black heavyweight champion, who was convicted on a racially fraught charge of violating the Mann Act.

Trump has mused about pardoning former Illinois Gov. Rod Blagojevich, as well as Robert Mueller’s probe targets Michael Cohen and Paul Manafort, and possibly even himself. And it is unlikely that he is done. The president has asked NFL players to suggest other possible pardon recipients who have been “unfairly treated by the justice system.”

I may not be a member of the NFL, but I do have a recommendation of my own.

A pardonable offense

In the spring of 1859, Charles Langston and Simeon Bushnell were convicted in a Cleveland federal court of violating the Fugitive Slave Act, which allowed slave hunters to “recapture” their human quarry in the northern states. Their crime was participating in the rescue of John Price, a runaway from Kentucky who had been apprehended by slave hunters on the outskirts of Oberlin, Ohio.

The event, which drew international attention, was known as the Oberlin-Wellington Rescue. As I explain in my book, “Fugitive Justice: Runaways, Rescuers, and Slavery on Trial,” it was one of the many small acts of resistance that eventually led to the Civil War, and thus to emancipation.

 

Reigniting the need for Dassey in the classroom

Brendan Dassey’s court case came to an abrupt halt last week when, on June 25, 2018, the Supreme Court denied his petition for a writ of certiorari. The petition sought review of Dassey’s March 1, 2006, confession to law enforcement wherein he admitted to participating in raping and killing photographer Teresa Halbach. More specifically, the petition asked the Court to evaluate whether Dassey’s incriminating statements were voluntary pursuant to the due process clause.

The March 1 interrogation’s fame beyond legal circles arose from the Netflix documentary, Making a Murderer, which episode 3 focused on. I consider that interrogation in this post. In doing so, I argue that it makes for compelling criminal procedure teaching material in four main areas outside the voluntariness doctrine: Miranda custody, Miranda waiver, interrogation techniques, and the legal import of sequential interrogations. With Dassey’s petition denied, using Dassey’s case as a teaching tool seems all the more important. After all, forthcoming Supreme Court guidance seems unlikely given that the Court has not heard a juvenile interrogation case since Fare v. Michael C., decided in 1979.

Stars and Stripes Forever

 

 U.S. Army Field Band 

 

Hiring Announcement: U. of South Dakota

The University of South Dakota School of Law is seeking a Lecturer of Experiential Learning. We will hire at either the Lecturer or the Senior Lecturer level, based on experience and qualifications. A Lecturer at USD Law is considered a full member of the faculty. The successful applicant will receive a 12-month appointment for the 2019-2020 year. The term is renewable and evaluated annually.

The position will be responsible for developing and overseeing experiential learning compliance programs in the areas of trust, banking and health. The position will also assist the Experiential Learning Director in the supervision, coordination, and continued development of the pro bono program. Developing additional clinics, practicum courses, and other experiential learning initiatives is also a possibility. The successful applicant will likely assist with a limited number of co-curricular events, may advise one of the major co-curricular activities, and may teach an experiential course. A significant amount of the work will occur in Sioux Falls, the surrounding communities, and potentially around the state.

The successful applicant must be a licensed attorney in a United States jurisdiction (a state or the District of Columbia) by the time of the appointment.

Depending on experience and expertise, teaching other substantive courses is negotiable.

All applicants must apply online. For more information, and to apply, visit http://yourfuture.sdbor.edu/postings/10896. Applications should include: an application letter, vita, and the names and addresses of three current references. For application assistance or accommodation, call 605-677-5671.  The position is open until filled.

Inquiries may be directed to Tiffany C. Graham, Associate Dean of Academic Affairs, University of South Dakota School of Law. You may reach her at Tiffany.Graham@usd.edu, or 605-677-5393.

Hiring Announcement: Lewis and Clark Law School

LEWIS & CLARK LAW SCHOOL invites applications from entry level or experienced candidates for one position to begin in the 2019-20 academic year. We seek candidates who could teach administrative law and constitutional law, as well as courses in one or more of the following areas: energy law, environmental law, food law, or health law. Lewis & Clark is an equal opportunity employer, and we encourage applications from candidates who would enhance the diversity of our community. Information about the Lewis & Clark Law School is available at https://law.lclark.edu/. Interested persons should send a resume or c.v., references, a writing sample, and an indication of teaching interests to Kerry Rowand, Executive Assistant, by email at rowand@lclark.edu, or by postal mail at Lewis & Clark Law School, 10015 SW Terwilliger Boulevard, Portland, OR 97219.