Friday, October 9, 2015
A Tale of Two Videos: Contrasting the Likely Reaction in the Legal Academy to a Hypothetical Undercover Video Displaying Institutional Racism With That to the Planned Parenthood Videos
Suppose, hypothetically, that a non-profit organization concerned about racial justice and equality in the American economy conducted a series of undercover operations targeted at leading national banks. They secretly recorded video of banking executives making racially insensitive statements and generally exhibiting a callous attitude toward minorities in urban communities who struggle to pay their mortgages or start businesses.
On one video, let us say, the white executive of a major bank is caught saying to a lending committee that, while the bank’s brochures may tout diversity and non-discrimination, the bank really had no interest in providing financing for business projects in minority communities because “none of them have any work ethic.” Other members of the committee nod vigorously.
On another of these hypothetical videos, the head of urban residential loans for another major bank is depicted looking through a document showing the bank’s increase in mortgage lending in a minority neighborhood. He then remarks, with a chuckle, “they’ll never be able to pay off those mortgages for those over-priced houses. But we’ll take our profit and be outta there when the mortgages get sold in the secondary market.”
Other videos are in the same vein, showing similar troubling attitudes about race and minority communities in a number of leading American banking institutions. Again, this is all hypothetical.
The response in the American legal academy to these hypothetical videos can be imagined:
“The Banking Videos” likely would be incorporated into classroom teaching in courses on race and the law and in a number of courses on banking and commercial transactions. Students would be encouraged to prepare advanced writing papers dissecting the videos and suggesting new banking regulations to promote economic justice. Law journals would host symposia devoted to the legal and cultural issues raised by “The Banking Videos.”
The annual meeting of the Association of American Law Schools probably would host a plenary and well-attended session focused on “The Banking Videos.” The President of the AALS would devote a column in the AALS News observing that “The Banking Videos” remind us that the path to racial equality is still a long one, while insisting that legal education is at the forefront in highlighting the presence of structural racism in the American economy.
To be sure, classroom discussions and symposia presentations would have to address complaints that the hypothetical racial justice organization had used subterfuge to gain access to these insider banker meetings, as well as accusations that the videos had been edited in a misleading way. But such objections would not overshadow the larger issues or much divert attention from the shocking nature of some of the comments recorded and attitudes expressed — which “context” hardly softens.
By the end of the year, there’d hardly be a law student in the country who had not been exposed to the “The Banking Videos.”
It would have become a nationally-prominent “teaching moment.” And rightly so.
By contrast, consider the not-hypothetical undercover videos of Planned Parenthood leaders talking about late-term abortions and examining fetal remains.
In one video, Planned Parenthood’s senior director for medical services sips wine while saying to the undercover actors who claim to be seeking fetal organs: “We’ve been very good at getting heart, lung, liver, because we know that, so I’m not gonna crush that part. I’m gonna basically crush below, I’m gonna crush above, and I’m gonna see if I can get it all intact.”
On another video, featuring the vice president and medical director for Planned Parenthood Rocky Mountains, we watch technicians crack fetal skulls to extract intact brains and pick through legs, abdomens, and other remains. One Planned Parenthood employee says in a jocular tone: “Here’s some organs for you. Here’s a stomach, kidney, heart.” Another Planned Parenthood employee jokes as she examines dismembered aborted fetuses: “And another boy.”
For “A Quick and Easy Guide to The Planned Parenthood Videos,” Mollie Hemingway’s guidebook at "The Federalist" is invaluable and offers these and other direct quotations in context while also providing direct links to both important excerpts andthe full videos. (Warning — these videos are disturbing and some are graphic.)
Let's set to one side the debate whether the videos provide any “smoking gun” evidence on actual violations of the laws restricting sale of human fetal body parts. Indisputably, even to the point that the President of Planned Parenthood apologized for tone, the videos portray a shockingly callous attitude. We hear casual dinnertime comments about “crushing” living unborn human beings and see Planned Parenthood personnel lightheartedly rooting around in the remains of dismembered fetuses while joking that they’ve found this or that organ or encountered “another boy.”
So how much attention have “The Planned Parenthood Videos” received in the typical law school?
In courses on human rights or professional responsibility, are they being used to show the danger of becoming desensitized and losing a sense of human dignity? Are we as legal educators addressing the danger that character may be corrupted when someone too easily assimilates into an institutional setting? Have we used these videos as examples of how ideology may blind one to the horrors in which one is participating?
In constitutional law classes, are “The Planned Parenthood Videos” being offered as a counterpoint to the politically-favored narrative that Roe v. Wade is an uplifting advance for gender equality and an unalloyed victory for human rights? When people fall back on comfortable slogans like “the right to choose,” is the reality of dismembered fetal bodies being picked over by technicians like butchers at a meat packing plant shown to suggest that perhaps what is being “chosen” is termination of fellow human beings, at least with respect to late-term abortions?
In sum, is there really any debate occurring at the typical law school about the legal and cultural (much less moral) significance of these videos? Or, instead, are legal academics generally ignoring the videos or declaring uncritically that the videos don’t really portray what they obviously do show to anyone who watches them? Are we as a community of educators betraying our oft-touted mission to honestly address even that (especially that?) which makes us uncomfortable? Or, when it comes to “reproductive rights,” is the real message that diversity and critical reflection on this issue is not welcome in the American legal academy?
Tuesday, August 11, 2015
This morning, Professor Brian Leiter posted on the Law School Reports the 2015 ranking of American law schools by Scholarly Impact.
The complete ranking and narrative are available here.
In 2012 and again in 2015, I have shepherded the Scholarly Impact study, along with my librarian colleagues here at the University of St. Thomas, Valerie Aggerbeck, Nick Farris, and Megan McNevin, assisted by a team of students led by Maria Pitner. The preparation of the Scholarly Impact Ranking involves months of painstaking work identifying tenured faculty at law schools, performing citation counts (including sampling where necessary), double-checking and reconciling results, and calculating scores, scaling, and ranking.
Three years ago, through a series of posts here on Mirror of Justice, I offered several arguments as to why scholarly work and scholarly impact are especially important to Catholic legal education. Those points remain just as salient today.
The first argument, made here, was that a meaningfully Catholic law school must be an intellectually engaged law school, which is not possible without a faculty also engaged in the quintessential intellectual activity of scholarly research and writing.
My second point, made here, was that through scholarly excellence and law school scholarly prominence, we witness to society the vibrancy of intellectual discourse by persons of faith and counter the anti-intellectual stereotype often attaching to religiously-affiliated institutions, including law schools.
My third point, made here, was that, as Catholic Christians, we have are called to share the Gospel, both directly and indirectly. The central role of scholarly research in our academic vocation is affirmed by no less a Catholic authority than St. Pope John Paul II in the apostolic constitution for Catholic universities, Ex Code Ecclesiae: “The basic mission of a University is a continuous quest for truth through its research, and the preservation and communication of knowledge for the good of society.”
In sum, while we are called to teaching and service as well, we cannot fully participate as academics in the search for the truth without also contributing to the scholarly literature, which reaches audiences beyond the walls of our own institution and which is preserved in medium so that we can affect the scholarly discourse long after we have departed. It is a tremendous privilege – and a grave responsibility.
With respect to the 2015 updating of the Scholarly Impact Ranking, I may be forgiven here for highlighting certain results for schools at which members of the Mirror of Justice family teach:
The University of Notre Dame ranks in the top 25. Emory is ranked #27. The University of St. Thomas ranks in the top 40 (at #39) for Scholarly Impact -- almost 100 ranking levels above its relegation in the U.S. News ranking.
Below the fold, I've set out the top 40 ranking in a table:
Monday, July 27, 2015
As the Church Discovered the Virtues of Religious Liberty, Eventually the Church will Appreciate the Charisma of Democratic Capitalism
It took long centuries for the Catholic Church, which frequently had aligned itself with State power, to come to a better understanding of the moral and prudential virtues of religious liberty. Developing as an institution during a time of authoritarian and rather primitive societies, the Church understandably accommodated to traditions by which the instruments of the State were used by those in power both to govern and to inculcate the vision of the elites.
In his famous book, We Hold These Truths: Catholic Reflections on the American Proposition, published in 1960 on the eve of the Second Vatican Council, American Jesuit John Courtney Murray offered the success of the unique American experiment in religious liberty as evidence of a new moral truth consistent with the natural law tradition of the Catholic Church.
The Second Vatican Council was greatly influenced by Murray and his observations about religious liberty in the American context. At the close of the Council in 1965, Pope Paul VI promulgated Dignitatis Humanae (The Declaration on Religious Freedom) formally declaring as Catholic teaching that “the right to religious freedom has its foundation in the very dignity of the human person.”
Writing about Murray and the Second Vatican Council, Judge John Noonan observed that “the Declaration on Religious Freedom would not have come into existence without the American contribution and the experiment that began with Madison.” John T. Noonan, Jr., The Lustre of Our Country: The American Experience of Religious Freedom 353 (1998).
The Catholic Church eventually came to appreciate that authoritarian government, especially as to religious freedom rights, created the environment for abuses and ultimately weakened faithfulness.
Likewise, the Church eventually will come to understand that authoritarian government approaches to economics also are rife with opportunities for abuse (crony capitalism, structuring the system to benefit political and economic oligarchies, rent-seeking by favored economic and political actors, etc.) and ultimately undermine prosperity.
But, just as was true with the slow evolution of the Church’s views on religious liberty, the Church will take some time to appreciate in its teaching that democratic capitalism has been the greatest engine for prosperity in the history of the world and creates the free space for moral structures and intermediary institutions, such as the Church.
As Catholic philosopher Michael Novak observed some 35 years ago in his classic work Toward a Theology of the Corporation at 1 (AEI 1981), “[m]ost theologians of the last two hundred years have approached democratic capitalism in a premodern, precapitalist, predemocratic way; or else they have been socialists, usually romantic and utopian rather than empirical.” Novak was one of the first to deprecate “the anticapitalist bias of the Roman Catholic Church," which has been plagued with “systemic misperceptions about the nature of democratic capitalism.” Id. at 9-10.
A Church that is rightly and genuinely concerned with the plight of the poor cannot afford to ignore the realities of economics. In contrast with the static societies of the Middle Ages, during which the Church began to consider the economic moral order, the modern world has seen hundreds of millions lifted out of poverty by the innovation of free market economies during the past century and more. We would do well to remember the harsh realities of human existence in the precapitalist period, as Novak explains:
Until the rise of democratic capitalism a permanent condition of poverty was seen as a given. Indeed, in the 1780s four-fifths of all French families spent 90 percent of their income simply buying bread — only bread — to stay alive. In 1800 fewer than 1,000 people in the whole of Germany had incomes as high as $1,000. Yet in Great Britain from 1800 to 18509, after the sudden capitalist take-off that had begun in 1780, real wages quadrupled, then quadrupled again between 1850 and 1900. The world had never seen anything like it. After World War II dozens of other nations — but not all nations — used the ideas of democratic capitalism to experience even more rapid growth. (Id. at 23-24.)
By contrast, nations with excessive government intervention into markets during that same post-World War II period discouraged innovation, investment, and growth, leading to economic stagnation. Point to a nation with a history of heavy-handed government interventions into markets, and you will be pointing to a nation that has suffered a (comparative) decline in economic growth. A prosperous nation can afford to consider how best to allocate wealth, while a poor nation needs to focus on economic growth, which in turn demands relatively free markets.
Consider two contrasting examples: South Korea as representative of the “economic miracle" in much of Asia. And Argentina as illustrative of the cronyist interventionst approach by governments in much of Latin America.
A century ago, Argentina was “one of the world’s wealthiest countries, with a standard of living on part with that of the US.” Michael Boskin, Why does Chile prosper while neighbouring Agentina flounders?, The Guardian, Nov. 22, 2013.
Let’s compare the trajectories of these countries, with different economic policies. In 1950, Argentina was a wealthy country, with per capita GDP of $6164 — far above South Korea’s of only $1185. By 2010, Argentina had grown only to $13,468, while South Korea’s had jumped to $30,079. The annual growth rate in Argentina over those 60 years barely broke 1 percent, while South Korea enjoyed a growth rate above 5.5 percent. Christopher D. Piros & Jerald E. Pinto, Economics for Investment Decision Makers 629 (Wiley 2013).
Despite beginning the period as a wealthy country, Argentina through political instability, excessive spending and debt, and repeated government intervention in markets has fallen steadily downward. At its worst point a little more than a decade ago, 60 percent of the population of Argentina was below the poverty line. On the Heritage Foundation “Economic Freedom Index,” Argentina ranks 169 out of 178 nations.
Many factors — culture, political arrangements, monetary policy, natural resources, educational investment — play a role in a nation’s economic progress (or lack thereof). But economic freedom remains indispenable. Of course, no nation permits entirely free markets. A stable legal system governed by the rule of law which holds people to account for agreements and punishes abuse is also essential. Antitrust laws to prevent monopolies are standard. Labor rights should be added to the mix. And reasonable rate of taxation is necessary to build infrastructure and ensure educational opportunity. In fact, contrary to the conventional wisdom in many Church circles, the number, extent, comprehensiveness, and intrusiveness of current governmental regulations and market controls imposed on economic entities in the developed world, national and international, is striking. In sum, a thoroughly free market does not exist in this country.
The question is the right balance between free markets to allow creativity, innovation, and growth, and legal security to keep order in markets and prevent abuses. The same is true in balancing the virtue of religious liberty against the imperative needs of a society. And we cannot begin to find that balance without first appreciating the charisma of democratic capitalism.
Fortunately, Saint John Paul II already has jump-started the movement of Church moral teaching on economics beyond pre-modern assumptions:
If by “capitalism” is meant an economic system which recognizes the fundamental and positive role of business, the market, private property and the resulting responsibility for the means of production, as well as free human creativity in the economic sector, then the answer is certainly in the affirmative, even though it would perhaps be more appropriate to speak of a “business economy,” “market economy” or simply “free economy.” But if by “capitalism” is meant a system in which freedom in the economic sector is not circumscribed within a strong juridical framework which places it at the service of human freedom in its totality, and which sees it as a particular aspect of that freedom, the core of which is ethical and religious, then the reply is certainly negative. (Centesimus Annus, para. 42.)
Progress seldom proceeds in a straight-line. As that progress moves haltingly forward in the future, Saint John Paul II’s vision will ascend again.
Tuesday, July 21, 2015
Last night — the last night of our Montana vacation — the three of us decided to take a drive to a nearby mountain lake, hidden in a valley and surrounded by rocky cliffs. The drive was longer than expected, much of it on gravel roads, but we persevered. The arrival was spectacular as Tally Lake became visible through the trees. The the deepest lake in all of Montana was a dark blue in contrast with the gray rock rising up on all sides.
On the way back toward Whitefish, our daughter, Katie, home from Notre Dame for the summer, asked about the danger of hitting a deer while driving along these mountain roads. My wife, Mindy, having grown up in Montana, and I, having lived there for several years, assured her that we had driven on these kinds of roads innumerable times without incident.
Katie persisted, saying she had a bad feeling. Mostly to mollify her, I agreed to keep our speed low. Even when we got back on to paved county highway, I kept the accelerator to around 25 miles per hour, though the posted speed limit was much higher.
Not more than ten to fifteen minutes after Katie expressed her disquiet — a flash of brown fur and a thud! A deer had jumped right in front of the car. And even with our slower speed and my instinctive slamming on the brakes, we hit the animal dead center.
None of us were injured — indeed, by virtue of the slow speed and my immediate braking, we barely felt the impact. The deer collision had damaged the bumper, but the hood, windshield, and engine were undamaged.
Even the deer may have survived the incident. As I was slamming on the brakes, the doe’s legs were swept out from under her by the bumper and her side struck the grill-area of the front of the car. She then fell out into the road and rolled to the side into the ditch. I initially feared a gruesome scene of a badly injured animal flopping around in the ditch. But, after just a second or two, the doe regained her feet and ran quickly into the surrounding woods. As I examined the damage on the car, there was no blood. To be sure, it is possible that the deer suffered fatal internal injuries. But I’d like to think the deer, perhaps with a cracked rib or two, managed to get through the encounter.
I am so very grateful that I acquiesced to my daughter’s misgivings — and that she expressed them. It could have been disastrous had I continued along the road as I otherwise was inclined, probably slightly exceeding the speed limit. Had we struck the deer at such higher speed, the animal very likely would have bounced up on to the hood and perhaps into the windshield, with a grave risk of serious injury to the two of us riding in the front.
We’re all familiar with the Woody Allen quip saying that 80 or 90 percent of life is just showing up. I tend to think showing up is not enough. One also has to also be paying attention. Today I am very grateful that we paid attention to our daughter. I’d like to think that, by doing so, we were listening to the voice of God speaking through her to warn us of the approaching danger.
Obviously this was not the most enjoyable way to end an otherwise wonderful summer vacation. But a dented bumper can be repaired. And the family is fine. Thank God.
Sunday, July 19, 2015
Sometimes the clarifying lens of the law helps to sharpen the analysis. Sometimes the fog of the law obscures.
So it is with the attention given to the disturbing uncover video of Deborah Nucatola, Planned Parenthood's Senior Director of Medical Services, swilling wine and eating salad as she dispassionately spoke about obliterating the skull and destroying the lower extremities of unborn babies while carefully preserving the internal organs for medical research.
The mainstream news media quickly shifted the question to whether the legal line had been crossed from non-profit use of abortion remains for research to selling human body parts for profit. Those who had released the video were accused of editing it to make it appear that Ms. Nucatola was setting prices for profit rather than simply recovering the expenses of distributing the tissues (which is not illegal).
While the legality of Planned Parenthood's activities under current statutes is not unimportant, to focus on that point is truly to miss the what is most important. The gut-wrenching power of the video — what makes this revelation such an important event in the history of abortion in the United States — lies in its depiction of the callous attitudes of the abortion industry. Here the words of Planned Parenthood's leader of medical services speak for themselves:
“We’ve been very good at getting heart, lung, liver. So I’m not gonna crush that part. I’m going to basically crush below, I’m gonna crush above, and I’m gonna see if I can get it all intact.”
Not willing to be so distracted, Heather Wilhelm sums it up well:
“Abortion, when you’re forced to acknowledge the reality of it, is an obvious moral horror. It involves killing little humans, many with lungs and hearts—not just ’clumps’ of ’tissue’—and it happens every day.”
Seldom does a single event occur that can so dramatically move public opinion by shining the light into darkness. The pro-life movement must ensure that, even as the news media loses interest, this video is replayed again and again for every audience.
Tuesday, December 30, 2014
Christmas is now past and you’re wondering why you didn’t get exactly what you wished for from Santa Claus. And what you really, really hoped would end up under the tree was a (still) new law-school-mystery-Catholic-drama novel by a Mirror of Justice contributor!
And that’s also the last shameless self-promotion — for this year anyway.
Happy New Year All!
Friday, December 5, 2014
One of the regular themes of the Mirror of Justice is the distinct value of religiously-affiliated higher education, most particularly in the law school environment. The following story does not involve legal education but does illustrate the small miracles and serendipitous (read: divine) encounters of people of faith that we see again and again in faith-based educational settings. God’s ways may be mysterious, so it is hardly surprising that we are more likely to perceive those ways at a faith-based school where we are open to those mysteries.
My daughter Katie is a sophomore at Notre Dame. Football Saturdays, of course, are a legendary part of the Notre Dame experience. When the Fighting Irish play at home, a host of visitors come to campus. On the Saturday of a recent home football game (we won’t say anything more about the game itself — it suffices to say it was a game in the second half of the season), my daughter was walking to the stadium with her two roommates, Jackie and Maddy. They happened upon a tailgate party hosted by a young couple to raise funds for the Cystic Fibrosis Foundation. Intrigued by this tailgate with a purpose, because Jackie has cystic fibrosis, the group of three Notre Dame sophomores stopped to talk with the hosts.
They learned that the couple running the Cystic Fibrosis Foundation — one a graduate of Notre Dame and the other of St. Mary’s — had been blessed only three weeks earlier with the birth of a daughter, Nora. But Nora was diagnosed with cystic fibrosis and soon was in critical condition as her bowel accidentally had been perforated. Jackie told the parents that, like their little new daughter, she too had the condition, presenting to them an in-the-flesh example of a successful young woman at a leading national university who was joyfully overcoming cystic fibrosis. The smiles grew larger all around, even as the tears began to flow. Truly Providence had brought these five people together, blessing both the three Notre Dame students and Nora’s parents.
But the Notre Dame bond ran still deeper, as another spiritual stage had been set. The mother of the new-born with cystic fibrosis mentioned that, when her little daughter was going into surgery with little chance of survival, she had invoked the help of an American candidate for beatification, Father Solanus Casey and had asked his followers around the world the join in prayer for Nora. Venerable Solanus (or Barney) Casey, who had been a beloved priest in Detroit with a heart for the sick, lived from 1870 to 1957. Indeed, the mother emphasized she had been careful to invoke the help only of Solanus Casey and had asked recipients of her email message to do the same.
Displaying the photograph proof, Nora’s mother had touched a Father Casey relic to the baby’s cheek and then watched the baby’s face transform from an expression of pain to one of bliss. Little Nora survived and continues to slowly recover, contrary to the expectations and beyond the explanations of her physicians. (Support for the family by generous donors is most appreciated: here.) Nora’s mother is submitting the evidence of this miracle to the Vatican in support of Father Casey’s cause.
As this small group of students and Nora’s parents celebrated God’s grace together, Nora’s parents were amazed to find how well informed my daughter Katie was about subject of beautification in general and about leading American candidates in particular. As a freshman seminar last year, Katie had studied American saints and conducted research on the cause of American candidates for beatification or canonization. As Katie has told her seminar professor, Kathleen Sprows Cummings, having been able to study the subject in that class allowed Katie to share more fully in that beautiful moment with Nora’s parents on the Notre Dame campus months later. This meeting ended with the parents showing Katie, Jackie, Maddy, and Mikey pictures of Nora smiling (and, yes, as a further miracle, she was able to smile even at such a young age) while holding the relic of Blessed Father Casey. Keep Nora and her parents in her prayers and continue to seek the intercession of Father Casey.
God of course moves in the lives and experiences of those who rely on Him while attending non-religious schools, and the power of the divine breaks through any attempted line of separation. God meets us wherever we are faithful. But through the spiritual environment created, the deliberate development of a faith-based curriculum, and the faithful intentionality of event-planning, religiously-affiliated schools are uniquely open to the movement of God.
Friday, November 21, 2014
You shall not oppress or afflict a resident alien, for you were once aliens residing in the land of Egypt. (New American Bible, Exodus 22:20)
As anyone who has visited the Mirror of Justice knows, my political affiliation is Republican, which I believe is consistent with my Catholic values. But when the two conflict, the principles underlying Catholic teaching must take priority.
So let me give credit where credit is due: President Obama's speech last night was masterful.
I am not saying that I agree with the wisdom of his exercise of executive authority on this matter. Nor do I mean here to come down on one or the other side of the debate on the legality of his executive order.
But, setting the means to one side for a moment, the substance and style of President Obama's address to the nation were admirable. He was conversational, while also being eloquent. He offered thoughtful points, not merely rhetoric, without dragging on at length (as he is wont to do). He explained not only what he was doing, but also the many things he was not doing, exemplifying some measure of prudence.
He was generous toward those who disagree with him, not showing any of the petulance that some have perceived in the days since the Democratic defeat in the midterm elections. He forthrightly addressed the difficult questions, not bypassing them. He explained his reasoning on those issues, seeking to find a consensus path. I do recognize that some will respond to the President's action by refusing thereafter to consider legislative immigration reform. This would be a mistake of both strategy and policy. There remains much work for the Congress to do on immigration. President Obama has not preempted that work. And he will prove, I believe, to be a willing partner in that political process from this point onward.
And President Obama spoke from the heart and reflected well on the American character. His closing with Scripture -- the passage reminding the people of Israel to be generous with those who are strangers in the land for they were once strangers in a foreign land -- was right on the mark and should strike to the heart of every person of faith. (I am saddened that some conservatives, I hope in the heat of the moment, have suggested that quoting the Bible was somehow out of bounds. Recalling what Jesus told his disciples when they complained that some people not of their group were doing works in his name, we should celebrate when others send forth the Word of God. Mark 9:38-40: Jesus: "For whoever is not against us is for us."). I've set out above the passage from Exodus that President Obama used, from the New American Bible frequently used by Catholics.
But please, and I say this especially to my fellow Republicans who are understandably dubious about President Obama's policies and motivations, don't take my word for it. Invest the very few minutes necessary to listen to the speech in its entirety and do so with an open heart before making a judgment. For convenience, I link directly to it below:
Friday, November 14, 2014
And Still Another Post on Yates: The Criminal Statute Interpretation Case That Proves to be Bigger on the Inside Than on the Outside (the Tardis Case)
A couple of days ago, Kevin Walsh said that, after listening to the Supreme Court oral argument in Yates v. United States, he was tempering his prediction that the criminal defendant-petitioner in that case would lose unanimously. At the end of the post, Kevin kindly suggested that Rick Garnett (who participated in an amicus brief in support of the petitioner) and I (who posted about Yates earlier here) might have the better of interpretive prediction this time around.
To tell you the truth, I’m not sure what the final outcome will be in Yates. And, while I do come down on the petitioner’s side, I also don’t think that Yates on its peculiar facts presents the most important questions about how to read and apply the extraordinarily-broad obstruction of justice statute invoked here.
However it plays out in this case, I share Kevin’s reaction that the exchanges at the oral argument were remarkable. The uneasiness expressed by several Justices about the breathtaking scope of this criminal statute may foreshadow what will come in later cases. And those remarks suggest an increasing wariness on the Court toward federal prosecutors and over-charging, as well as growing concern about the proliferation, expansion, and severity of federal criminal statutes.
But I’ve jumped into the middle of the story. So let me start at the beginning.
Below the fold, I will briefly sketch out the background to and issue presented in the Yates case, which is presently pending before the Supreme Court.
Then I'll explain how the arguably small and simple Yates case became the entry-point to these broader issues at the oral argument. In the hope that you will keep reading below the fold, I offer here the Tardis teaser about the Yates case being bigger on the inside than the outside.
And once you’ve read some samples of the exchanges at the oral argument in Yates, I believe you’ll be sufficiently intrigued to continue with the discussion of these pressing issues — and to listen to the audio of this rather entertaining oral argument.
Finally, to put the deeper and more troubling issues about this broad obstruction of justice statute into a real-world context, I'll offer a hypothetical about a lawyer and a client who wishes to turn away from a life of sin.
Wednesday, November 5, 2014
I’ve thought that the best forecast for elections tends to be Matthew Dowd’s prediction that both the winning and the losing parties will misread the lessons of that election. You will be the judge of whether the following stumbles and falls against that caution.
For months, I have been skeptical (but as a Republican, hopeful) that the Republicans would be able to climb the high hill of taking over six Democratic seats to obtain a majority in the United States Senate in 2014. I thought it probable that Republicans would fall a seat or two short. If that had happened, I expected that the meme of today would be that Republicans had badly lost by missing that six-vote switch, ignoring what would be the rather respectable achievement of picking up four or five Senate seats.
As a recent example of such mis-reading of election results, a false mantra had taken hold about President Obama’s supposedly big victory in 2012. Just a few days ago, in noting how much the landscape had changed in the Republican direction, the New York Times remarked that President Obama had won re-election just two years ago by a “commanding margin.” Only in the world of news spin can an incumbent president winning re-election by 51 percent of the vote—near the low point for presidential re-elections in American history—be characterized as a “commanding margin.”
I was too cautious about Republican prospects—obviously. And thus far, I have been pleasantly mistaken about the general acceptance of the meaning of those election results. Last night saw a higher Republican wave than nearly anyone had anticipated, most definitely including me. And no one seems to be missing the message (other than, perhaps, the Obama White House).
Republicans were remarkably sober in victory, suggesting they might be learning something. Republican winners appear to recognize that they are on probation, that the public doesn’t much like either party these days, and thus Republican winners now are expected to perform. On the other side, with some exceptions, both the media and most Democrats recognize that the mid-term election was a resounding vote of no confidence in the Obama Administration.
An election that had merely produced a Republican majority in the Senate would have been (with much justification) dismissed as a product of an unusually favorable map for Republicans, given that so many close Senate contests were being waged this year in states that President Obama lost in 2012. But that narrative would be sharply at odds with the electoral reality that ultimately emerged last night. The biggest stories of the night came in purple and even blue states, with Republican Senate victories in Iowa, Colorado, and North Carolina (and pulling even in Virginia), as well as new Republican Governors in Massachusetts, Maryland, and Illinois.
Not here in Minnesota. Democratic Senator Al Franken and Democratic Governor Mark Dayton were both re-elected. Beginning in January, Minnesota will be an island of blue surrounded by Midwest states with Republican Governors. At the gubernatorial level, North Dakota, South Dakota, Nebraska, Iowa, Wisconsin, Illinois, Michigan, Indiana, and Ohio have all turned red.
The Republican wave did wash up in Minnesota, though not too far up the shore. Governor Dayton was expected to win re-election handily, but instead barely cracked 50 percent and finished only five points ahead of an under-funded and largely ignored Republican opponent. And Republicans defeated 11 Democratic-Farmer-Labor Party incumbents to retake control of the state house of representatives. Still, the DFL won all state-wide contests and holds the state senate.
Now the states are said to be the laboratories of democracy. While reform Republican governors are now taking charge in all of the neighboring Midwest states, Minnesota’s Democratic governor will continue to be a staid and old-fashioned creature of government. He tends to see the answer to every problem as more government, assume that every conflict is one in which government falls on the side of the more vulnerable, and zealously uphold the interests of government employee unions.
As but one example of democratic experiments, it will be interesting to see what happens throughout the Midwest in the area of education. Midwest states have long prided themselves on being among the best in the country in education. Those who graduate from high school, and also avoid a criminal record or becoming a parent while still a teenager, are unlikely to ever to live in poverty.
Catholics have long recognized that education offers the greatest hope for transforming lives and lifting people out of poverty. And as Catholics with a holistic view of the human person, we know that education opens up human potential, allows people to thrive in cultural richness as well as economic satisfaction, and helps us better understand the world around us and thereby better understand God.
And yet that educational promise is not being kept for all, especially for poor children in minority communities. Despite the pretenses of federal officials and the political advertisements of candidates for President and Congress, the states remain the center of education, and thus state governments are where the action on education will continue to be centered. And there is much work to do.
Minnesota has one of the greatest disparities in educational achievement between black and white children in the country. Four years of a Democratic governor—and two years of solid Democratic control of the entire state government—have done nothing to reduce that disparity. Indeed, those of us who are critical of the DFL agenda in Minnesota would argue that a state administration tightly connected to the teachers’ union has squandered opportunities to move in a positive direction.
Governor Dayton repeatedly announced in his campaign commercials during this cycle that he “cared about education.” I have no doubt that he does. But so does everyone else. That hardly makes him distinctive. What matters in how one expresses that concern. Unfortunately, whenever there is a difficult choice between the interests of the teachers’ union and the interests of kids, Governor Dayton can be counted on to side with the teachers’ union.
When the state legislature voted to allow school districts to consider teacher quality (here), rather than merely seniority, when forced to lay-off teachers, Governor Dayton vetoed it (here). He ignored reams of empirical studies showing that teacher excellence, which is most definitely measurable, has a powerful correlation with outcomes for students, especially those most at risk. But Governor Dayton chose instead to stand with the teachers’ union in favor of rigid and archaic tenure rules.
Governor Dayton then used the line-item veto to deny continued funding to the innovative Teach for America program, which places non-traditional college-educated people—who don’t have a regular teaching certificate—into over-stressed public schools and for subjects on which qualified teachers are desperately wanting (here). Once again, Governor Dayton chose the interests of the teachers’ union, which wants to control the pipeline into the teaching profession. Indeed, when the Teach for America program persevered despite the loss of Minnesota state funding, Governor Dayton’s union-mentality appointees to the state Board of Teaching tried to block those teachers from the classroom (here), later back-tracking under pressure.
One of my colleagues, Professor Nekima Levy-Pounds, points to the stark and indefensible fact that public schools in Minneapolis with a majority of minority-race students are offered teachers with considerably less experience and advanced training than are public schools in the city with white majorities (here). In an elementary school in Minneapolis that is nearly 90 percent white, for example, more than 90 percent of the teachers have ten years experience or more. By contrast, at two elementary schools with more than 88 percent black students, about a third of the teachers have been teaching for less than three years.
A reform of teacher assignment rules in Minneapolis is plainly indicated. But the forces of the status quo may prove stubborn in resisting such reform.
Governor Dayton’s fealty to the teachers’ union seems likely to stymie educational reforms in Minnesota, at least those beyond throwing taxpayer dollars at his allies in the educational establishment. As a consequence, Minnesotans will likely be outside observers in our region of the country when it comes to meaningful educational reform. As educational innovations take hold in the surrounding states with reform-minded Republican governors—some of which may work, others which prove unsuccessful—Minnesota is likely to adhere to the status quo.
I suppose that’s part of the democratic laboratory as well. Minnesota is left to serve as the control group in comparison with our innovative neighbors. But that’s little solace to those who are left behind.