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  • 09/13/2017 6:01 AM | Denise Bashline (Administrator)

    New York Times

    September 12, 2017

    By Adam Liptak

     

     

      

       Jared Soares for The New York Times

     

    WASHINGTON — The Supreme Court on Tuesday temporarily allowed the Trump administration to stop some 24,000 refugees from entering the United States while the court considers broad challenges to the administration’s revised travel ban.

     

    The court’s brief order effectively reversed part of an appeals court ruling that had lifted the travel ban’s restrictions on the nation’s refugee program. There were no noted dissents.

     

    The appeals court had also rejected the administration’s efforts to bar travel to the United States from six predominantly Muslim countries by people with grandparents, uncles, aunts and other relatives here. The administration did not challenge that part of the appeals court’s ruling, and the Supreme Court did not address it.

     

    The court will hear arguments on the lawfulness of the travel ban on Oct. 10. Tuesday’s order was the latest in a series of interim measures interpreting statements in a June ruling in which the court agreed to hear the case. In the meantime, the court temporarily reinstated the travel ban — but only for people without “a credible claim of a bona fide relationship with a person or entity in the United States.”

     

    The meaning of that phrase has been contested ever since. The court did not specify which relatives qualified, for instance, but it did say that spouses and mothers-in-law “clearly” counted.

     

    “As for entities,” the court said, “the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading” the executive order. It gave examples: students admitted to American universities qualified, as did workers with job offers from American companies and lecturers invited to address American audiences.

     

    On the other hand, the court said, relationships formed for the purpose of evading the travel ban did not count.

     

    The Trump administration interpreted both parts of the June ruling narrowly. It said that only some relatives of American residents — parents, children, spouses, siblings, parents-in-law, sons- and daughters-in-law and people engaged to be married — could enter. The administration barred other relatives, including grandparents, grandchildren, aunts, uncles, nephews, nieces and cousins.

     

    The administration also said that relationships between refugees and resettlement agencies were too attenuated to qualify for an exception to the ban because the arrangements had been made by an intermediary: the government.

     

    In July, Judge Derrick K. Watson of United States District Court in Honolulu disagreed with the administration’s interpretation on both points. “Common sense,” he said, for instance, required grandparents to qualify as close relatives.

     

    Judge Watson also ruled in favor of those refugees whom resettlement agencies were prepared to assist.

     

    “An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones,” he wrote. “It is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security.”

     

    A unanimous three-judge panel of the United States Court of Appeals for the Ninth Circuit, sitting in Seattle, agreed on both points. At the Supreme Court, the government challenged only the part of the appeals court’s ruling concerning refugees, arguing that there is no direct connection between refugees and resettlement agencies.

     

    “The absence of a formal connection between a resettlement agency and a refugee subject to an assurance stands in stark contrast to the sort of relationships this court identified as sufficient in its June 26 stay ruling,” the government’s brief said. “Unlike students who have been admitted to study at an American university, workers who have accepted jobs at an American company, and lecturers who come to speak to an American audience, refugees do not have any free-standing connection to resettlement agencies, separate and apart from the refugee-admissions process itself, by virtue of the agencies’ assurance agreement with the government.”

     

    In response, lawyers for Hawaii, which is challenging the travel ban, said the administration was mistaking form for substance.

     

    “One would not, for example,” the brief said, “deny the existence of a ‘relationship’ between a couple and the child they plan to adopt from overseas, even though the couple has not had ‘direct contact’ with the child, and even though the only formal agreement is between the couple and the adoption agency.”

     

    On Monday, Justice Anthony M. Kennedy temporarily blocked the Ninth Circuit’s decision, which would have gone into effect on Tuesday. The order from the full court on Tuesday supplanted that temporary measure.

     

     

     https://nyti.ms/2eUqWz8

     

     

     

     

     

  • 09/13/2017 5:59 AM | Denise Bashline (Administrator)

    ABA Journal News

    September 12, 2017

    By Hannah Drier, Propublica

     

    Shutterstock.com 

     

     

    This summer, a Kansas City man named Edwin got a call from immigration officials. They had picked up his nephew at the southern border and wanted to release the teen into his care. So Edwin went online and bought a bed.

     

    Later that week, he was contacted again, this time by an Immigration and Customs Enforcement detective who knocked at his door. The agent gave Edwin a letter saying he needed to come to headquarters for an interview about three federal crimes: conspiracy, visa fraud and human smuggling.

     

    Across the country, people like Edwin who have taken in young undocumented relatives are being swept up in what ICE calls a crackdown on guardians who pay human smugglers. More than 400 people were arrested over the course of two months this summer as part of the new approach. Others are still dodging ICE interviews, have agreed to go through deportation proceedings or have gone on the run. Some of those affected admit that they paid “coyotes” to reunite them with their young children. But many are collateral damage: People who just happened to be in the house when ICE showed up, or relatives who agreed to take in teens after they traveled to the U.S. on their own. 

     

    “The message is getting out: Don’t sponsor someone if you’re here illegally, or you’re going to get in trouble,” said Claude Arnold, a former ICE Homeland Security Investigations special agent who supports the new policy. “The idea is to have a deterrent effect, so when a teenager says, ‘Uncle, I can pay my own way, but can I stay with you?’ the uncle is going to say, ‘No way.’”

     

    Edwin, who asked that his last name be withheld because of possible pending criminal charges, has been living in the U.S. for more than 15 years and says he never paid anyone to help his nephew cross the border. He points out that he has done everything by the book since emigrating from El Salvador to Missouri in 2001. He immediately got a job at a dry cleaning company and obtained Temporary Protected Status, which allows him to live and work in the U.S. so long as he keeps a clean criminal record. He doesn’t follow the news and didn’t know he was risking deportation by agreeing to take in his nephew. But he said it wouldn’t have mattered; he couldn’t have refused to welcome his sister’s son.

     

    “My nephew is grown and he makes his own choices. Everyone pays their own way. But he’s my family and it’s my duty to take him in,” Edwin said.

     

    Edwin’s nephew Wilbur lived in Kansas City with Temporary Protected Status himself as a child, but his parents decided to take him back to El Salvador when he was 6. He said he made up his mind to return to the U.S. after graduating high school this spring because he felt threatened by gangs. Wilbur took a bus across Guatemala, traveled through Mexico by pickup truck, then crossed into Texas in the back of a tractor trailer a month before his 18th birthday. He was picked up almost immediately by U.S. officials.

     

    About 90 percent of minors detained at the southern border are eventually turned over to a family member. It’s a system intended to spare the state from having to take care of children, and allow young people to live in normal homes while their visa and asylum claims work through the courts. 

     

    Under President Barack Obama, ICE was instructed not to go after people who came forward to claim relatives, even if they were in the U.S. illegally. Guardians were told they had no reason to fear revealing themselves to authorities. Under President Donald Trump, that policy has been reversed.

     

    Trump administration officials say it’s less of a policy change than a commonsensical return to the enforcement of existing immigration laws. In a February memo, then-Homeland Security Secretary John F. Kelly said that while all immigration laws should be enforced, it’s especially important to go after people “directly or indirectly” involved in smuggling, because the journey north can be so dangerous for children.

     

    “Regardless of the desires for family reunification, or conditions in other countries, the smuggling or trafficking of alien children is intolerable,” he wrote.

     

    Edwin said he felt bewildered when an immigration detective showed up at his door one morning in July, and was further confused by the letter instructing him to come to ICE headquarters the following week to talk about crimes related to smuggling.

     

    Because Edwin has protected status, he was able to take the letter and go on with his day. For people in the country illegally, things have been playing out much differently.

     

    A couple living in New Mexico fled the state after ICE agents turned up in August asking about a nephew they had recently taken in. They told their attorney that they hadn’t even known the high school junior was on his way up from Guatemala.

     

    In Tennessee, two ICE agents came with pistols and flak jackets to arrest a mother who hid in her trailer home. The mother said she had no idea her 16-year-old daughter was coming from Honduras. The agents left once others in the trailer park started taking photos.

     

    The Lutheran Immigration and Refugee Service, which has a contract from the U.S. government to help place unaccompanied minors with relatives, has seen cases in recent months of cousins and half-siblings swept up in the crackdown. In June, three members of a single Missouri family that had been working with the agency were put in deportation proceedings after ICE came around asking about smuggling.

     

    In all, more than 400 people were arrested between late June and late August as part of what ICE describes as an enforcement surge to bolster the strategy of going after guardians. The great majority of those 400 were charged with immigration violations, not smuggling-related crimes.

     

    A group of Democratic members of Congress asked ICE in July for specifics about the change in approach, including the protocol for deciding which sponsors would be targeted, but have yet to receive any answers.

     

    For now, Edwin is ignoring his summons. He said that when he failed to appear at ICE headquarters, an agent responded by going to the dry cleaner where he works to review his employment verification papers. He is hoping the agent loses interest, but no longer feels like he knows what to expect.

     

    “I’ve been here more than a decade and I’ve never had a single problem with the authorities. Now, it’s like the government is changing everything around,” he said. “Now, everything is dangerous.”

     

    ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for their newsletter.

     

     

    http://www.abajournal.com/news/article/relatives_of_undocumented_children_caught_up_in_ice_dragnet

     

  • 09/12/2017 6:10 AM | Denise Bashline (Administrator)

    Bloomberg Law

    September 12, 2017

    By Zachary Mider

     

    The nation’s highest courts are hearing from a lot of “friends” these days — outside parties who weigh in on consequential judicial decisions by filing legal briefs. This week, Bloomberg News is publishing a series of stories revealing how these friends aren’t always who they appear to be. Sometimes, they’re paid lobbyists in disguise, helping well-funded litigants attempt to tip the scales of justice.

     

    1. How are friends of the court supposed to work?

     

    The amicus curiae, or friend of the court, sits outside the adversarial system that prevails in American courtrooms. Almost anyone can submit an unsolicited brief, and most are accepted. Lawyers and judges generally see the briefs as benign and sometimes helpful, providing courts with arguments or facts that neither party raises. Judges are under no obligation to read them. At the U.S. Supreme Court, parties’ counsel routinely recruit and coordinate the arguments of such allies.

     

    2. Are parties allowed to pay for friends of the court?

     

    Yes, but in the nation’s highest courts, these payments must be disclosed. The Supreme Court adopted its disclosure rule in 1997, and the federal appeals courts in 2010. They require friends of the court to state in writing whether a party to the case wrote their brief or if anyone who’s not an amicus paid for it. Amicus briefs that disclose such payments are rare. That means the rules eliminated most pay-to-play — or some friends are misleading the courts.

     

    3. What kind of problems can arise?

     

    In some high-stakes cases, parties have paid, or were accused of paying, friends of the court to submit briefs without disclosure. In one case, a lawyer submitted a brief in the name of several organizations that say they never agreed to take part. Other friends didn’t run afoul of disclosure rules but still had undisclosed financial ties to parties with a stake in the outcome. The result is that amicus briefs can increase a well-funded litigant’s advantage in court. A party might be allowed to file only one brief, but by enlisting a paid army of friends, it gets more bites at the apple.

     

    4. How widespread are these irregularities?

     

    Nobody knows. Experienced federal appellate attorneys and scholars interviewed by Bloomberg News say they’ve never heard of these kinds of irregularities. Most of them expressed surprise.

     

    5. Do friends of the court have any influence?

     

    Sometimes. A few academic studies, examining statistical outcomes and judges’ citations of amicus briefs in opinions, have found a modest influence on certain types of judges or in certain types of cases. One study found that litigants were more likely to win when they came to court with an amicus ally and their opponents didn’t. Lawyers who appear before the Supreme Court evidently believe they’re important. Amicus wranglers who coordinate allies often rack up large legal bills. In one case highlighted in the series, decided narrowly in favor of a party with paid amicus supporters, a judge wrote that she found the friend-of-the-court briefs “persuasive.”

     

    6. How big a role do friends of the court play?

     

    More than 90 percent of Supreme Court cases attract at least one amicus. Some are high-profile cases, tackling issues such as gay marriage or abortion, where a lot of interest groups want to weigh in. It’s hard to imagine the parties in cases like these would need to pay anyone to participate, or that a single amicus could expect to tilt a decision. It’s a different story in the federal appeals courts, where the decisions can be more humdrum, even if they have a huge impact on litigants. Comprehensive figures are hard to come by, but data suggest that only a tiny percentage of federal appeals court cases attract even one amicus. It’s possible that coming to court with an amicus ally could make a bigger difference in those cases. The data also suggest the use of amicus briefs in appeals courts is growing fast.

     

    7. Do all courts require disclosure?

     

    No. These disclosure rules don’t apply to federal district courts, and many state court systems don’t have them either. But the most significant decisions, and the most amicus activity, are concentrated in the highest federal courts.

     

    8. What could be done to improve the situation?

     

    Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit has advocated for far stricter standards in the federal judiciary, allowing amicus briefs only in rare cases when the arguments of parties’ counsel is somehow insufficient. But some of Posner’s concerns have to do with courts becoming a forum for interest-group politics rather than covert lobbying. It’s possible to imagine modest changes to the brief-filing process that would make it harder for lawyers to file briefs on behalf of groups without permission, or to profess ignorance about whether their clients were actually paid.

     

    The Reference Shelf

    • study by Joseph Kearney and Thomas Merrill on the influence of amicus briefs on Supreme Court decisions.
    • tally by lawyers at Arnold & Porter LLP of Supreme Court amicus briefs in the 2015-2016 term.
    • An opinion by Judge Posner articulating his skepticism about amicus briefs.
    • “The Amicus Machine,” by Allison Orr Larsen and Neal Devins, examining amicus activity at the Supreme Court.
    • A 2014 paper, “Frenemies of the Court,” in which by Helen Anderson argues for a more restrictive approach to amicus briefs at the appeals court level.
    • The Supreme Court’s ruling in Green v. Biddle, in 1821, the first American court case on record to involve an amicus curiae: the Kentucky statesman Henry Clay.

     

    https://bol.bna.com/how-friends-of-the-court-can-tip-the-scales-of-justice/ 

     

     

     

     

  • 09/12/2017 6:08 AM | Denise Bashline (Administrator)

    New York Times

    September 11, 2017

    By Adam Liptak

     

     

     

    Judge Richard A. Posner said he realized that people without lawyers are mistreated by the legal system, and he wanted to do something about it. Credit Nathan Weber for The New York Times  

     

     

    WASHINGTON — Judge Richard A. Posner, whose restless intellect, withering candor and superhuman output made him among the most provocative figures in American law in the last half-century, recently announced his retirement.

     

    The move was abrupt, and I called him up to ask what had prompted it.

     

    “About six months ago,” Judge Posner said, “I awoke from a slumber of 35 years.” He had suddenly realized, he said, that people without lawyers are mistreated by the legal system, and he wanted to do something about it.

     

    For starters, as is his habit when his interest alights on a fresh topic, he wrote a book on the subject. Judge Posner blurts out books at a comic pace.

     

    “I realized, in the course of that, that I had really lost interest in the cases,” he said. “And then I started asking myself, what kind of person wants to have the same identical job for 35 years? And I decided 35 years is plenty. It’s too much. Why didn’t I quit 10 years ago? I’ve written 3,300-plus judicial opinions.”     

       

    He is 78 and had been a judge since 1981, when President Ronald Reagan appointed him to the United States Court of Appeals for the Seventh Circuit, in Chicago. Before that, he was a prominent law professor who was among the leading figures in the movement to analyze legal problems using economics. In emphasizing social utility over, say, principles of fairness and equality, he gained a reputation as a cold, calculating conservative.

     

    That changed over time, and his recent opinions on voter ID laws, abortion, same-sex marriage and workplace discrimination based on sexual orientation have been decidedly liberal.

     

    “The things I used to be interested in — economic issues in the law, for example — they don’t play a big role in the work of this court,” Judge Posner said. “Gradually, those interests sort of fell by the board.” 

     

    He wrote books about law and literature, sex and reason, the impeachment of President Bill Clinton, the 2000 election recount and, after the Sept. 11 attacks, national security.

     

    “Gradually, I lost interest or exhausted my interest,” he said. “So for the last 10 or 15 years, I’ve just been focused on the court.”

     

    He called his approach to judging pragmatic. His critics called it lawless. “I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

     

    The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

     

    I asked him about his critics, and he said they fell into two camps.

     

    Some, he said, simply have a different view of the proper role of the judge. “There is a very strong formalist tradition in the law,” he said, summarizing it as: “Judges are simply applying rules, and the rules come from somewhere else, like the Constitution, and the Constitution is sacred. And statutes, unless they’re unconstitutional, are sacred also.”

     

    “A lot of the people who say that are sincere,” he said. “That’s their conception of law. That’s fine.”

     

    He said he had less sympathy for the second camp. “There are others who are just, you know, reactionary beasts,” he said. “They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way.”

     

    The immediate reason for his retirement was less abstract, he said. He had become concerned with the plight of litigants who represented themselves in civil cases, often filing handwritten appeals. Their grievances were real, he said, but the legal system was treating them impatiently, dismissing their cases over technical matters.

     

    “These were almost always people of poor education and often of quite low level of intelligence,” he said. “I gradually began to realize that this wasn’t right, what we were doing.”

     

    In the Seventh Circuit, Judge Posner said, staff lawyers rather than judges assessed appeals from such litigants, and the court generally rubber-stamped the lawyers’ recommendations.

     

    Judge Posner offered to help. “I wanted to review all the staff attorney memos before they went to the panel of judges,” he said. “I’d sit down with the staff attorney, go over his memo. I’d make whatever editorial suggestions — or editorial commands — that I thought necessary. It would be good education for staff attorneys, and it would be very good” for the litigants without lawyers.

     

    “I had the approval of the director of the staff attorney program,” Judge Posner said, “but the judges, my colleagues, all 11 of them, turned it down and refused to give me any significant role. I was very frustrated by that.”

     

    His new book, he said, would have added to the tension: “If I were still on the court, it would be particularly awkward because, implicitly or explicitly, I’m criticizing the other judges.” 

       

    Judge Posner said he hoped to work with groups concerned with prisoners’ rights, with a law school clinic and with law firms, to bring attention and aid to people too poor to afford lawyers.

     

    In one of his final opinions, Judge Posner, writing for a three-judge panel, reinstated a lawsuit from a prisoner, Michael Davis, that had been dismissed on technical grounds. “Davis needs help — needs it bad — needs a lawyer desperately,” he wrote.

     

    On the phone, Judge Posner said that opinion was a rare victory. “The basic thing is that most judges regard these people as kind of trash not worth the time of a federal judge,” he said.

     

     

    https://nyti.ms/2xVeS8m

     

     

     
  • 09/11/2017 3:25 AM | Denise Bashline (Administrator)

    Stanford Magazine

    August 23, 2017

    By John Roemer

     

     

     

    For four decades, her leadership has helped define the ethics of power and parity.

    By John Roemer
    Photography by Timothy Archibald

     

    Before she was the nation’s most frequently cited scholar on legal ethics, or the author of more than 20 books, or an influential voice in the ear of circuit court judges, Deborah Rhode handled run-of-the-mill divorce cases. She was doing just that, as a law student at a civil legal aid clinic in New Haven, Conn., when she set her life’s course.

     

    Her clients there sought help with divorces they could not afford because local lawyers had priced them out of the market. “If you were low-income, you were out of luck,” Rhode says. “Lawyers were then charging $1,000 to fill out the paperwork.” Incensed, she and her colleagues sought a way around the problem. “We put out a kit for uncontested divorces,” she says. The bar association threatened to sue the clinic for the unauthorized practice of law. But an underresourced women’s support group in town offered to put its name on the kit to foil the protectionists. “They told the bar to go ahead and sue them for their coffee pot.” The lawyers backed down.

     

    That’s when Rhode realized she wasn’t cut out for lawyering at the retail level. Individual cases were too stressful. “I was angry all the time,” she says of her reaction to the injustices she dealt with at the clinic. “I didn’t have the stomach for direct services.” But advocacy through academia would suit. She decided to write about the unauthorized practice of law for the Yale Law Journal.

     

    Her co-author was her classmate and future husband, Ralph Cavanagh. The pair surveyed outcomes in civil court of uncontested divorces in which parties used the kit versus those in which couples had legal counsel. “The lawyers made the same number of mistakes” as the couples themselves, Rhode says. The article’s conclusion melds the practical with the ethical: “The bar should not be making the rules regulating its own competition.”

     

     

    Rhode joined the Stanford Law School faculty in 1979 as its third female professor, and she has spent the past 38 years articulating hard truths about women, power, leadership and the search for justice. Speaking honestly — and with passionate eloquence — has been the through-line of her long career as the conscience of the legal profession. Her forthcoming book on cheating rejects the “everybody does it” rationale but comes with a clear-eyed acknowledgment that ubiquity in deceit is uncomfortably close to a universal human truth. Cheating: Ethics and Law in Everyday Life is due this fall from Oxford University Press.

     

    Rhode was one of the first law professors to offer a course on leadership. “I backed into the field following my interest — and now three books — on women and leadership,” she says. Her interest and scholarship got her invited to a national conference on leadership at Harvard, where she found she was the lone legal academic among some 200 participants. “It seemed to me then and now that something was wrong with that picture.” Law is the trade of many who end up in charge — 26 of 45 U.S. presidents have been lawyers — yet law schools have tended to ignore the subject. That began to change after Rhode created Lawyers and Leadership, a popular course at Stanford that distills her thinking about who ascends to power in politics and business, and why. Several other law schools now offer courses on the subject. The ideas in Rhode’s 2013 book, Lawyers as Leaders, her pedagogy and her outspoken social critique of the quality of leadership in the United States have been brewing for years.

     

    Speaking honestly — and with passionate eloquence — has been the through-line of her long career as the conscience of the legal profession.

     

    “It’s a shameful irony that the occupation that produces the nation’s greatest share of leaders does so little to prepare them for that role,” she writes in a June Stanford Law Review article. “Yet the need for effective leadership has never been greater.”

     

    Sitting in her tidy office one Tuesday afternoon on the third floor of the William H. Neukom Building, Rhode sips from a stemmed glass of Diet Coke over ice. An elegant vase of fresh lilies ornaments her desk. On the wall nearby is a framed four-panel drawing of British barristers arguing. “Look, this isn’t getting us anywhere,” says one. “Well, let’s just be honest with each other,” is the reply. The third panel shows them gazing at one another silently. In the fourth, one finally speaks. “You first,” he says.

     

    That afternoon, as Rhode chats with a reporter, the phone rings. “Hello, Merrick,” she says, taking a return call from President Obama’s Supreme Court nominee Merrick Garland, whom President Trump supplanted with Neil Gorsuch. Rhode is promoting a star pupil to be a Garland clerk at the U.S. Circuit Court of Appeals for the District of Columbia, where Garland is chief judge. But first she devotes a moment to commiseration for Garland’s failure to attain the high court bench. “You were just the first casualty,” Rhode tells him. “At least you got a lot of coverage on late-night television.”

     

    Rhode and Garland were Supreme Court clerks together, she for Thurgood Marshall, he for William J. Brennan Jr. They have remained close. “I sent him a picture of a bench I saw here at Stanford with a sign, ‘Reserved for Merrick Garland,’ ” she says after concluding the call.

     

    Now it’s time for class. In her leadership course, Rhode combines rigorous scholarly inquiry with a glittering array of guest speakers. Today’s 40-page study guide on moral leadership has a section outlining the historical framework supplied by Machiavelli and a section on “How the Good Go Bad,” featuring rogue traders in the financial markets and leadership failures in the auto industry. Speakers over the semester have included Stanford President Marc Tessier-Lavigne; professor of political science Michael McFaul, ’86, MA ’86, a former U.S. ambassador to Russia; former Army lawyer and three-star general Dana Chipman, JD ’86; and former secretary of state Condoleezza Rice, a Stanford political scientist. Earlier iterations of the course featured four-time cabinet member George Shultz, now a distinguished fellow at the Hoover Institution, and former NAACP president Ben Jealous.

     

    This Tuesday, it’s Rhode in a solo turn. Today’s lesson is on moral leadership. It opens with readings from Machiavelli, including, of course, a teaching from The Prince, chapter XVII, “Of Cruelty and Clemency, and Whether It is Better to Be Loved or Feared.”In her mind, and in the minds of the students she will speak with shortly, the moral life of the 16th century collides with current events. “Trump gave feminism a jolt,” Rhode says. “Of course he’s a real wake-up call. Many women thought the woman problem, if not solved, was well on the way.”

     

    ‘It’s a shameful irony that the occupation that produces the nation’s greatest share of leaders does so little to prepare them for that role. Yet the need for effective leadership has never been greater.’

     

    The Prince, she tells her students, is the most classic account of moral leadership. She notes that the book came at a time of enormous political turbulence. The government in Florence underwent bloody coups and foreign invasions. Machiavelli was imprisoned and tortured. Popes banned his book. “He claimed famously that it’s better to be feared than loved,” she says, advancing the topic to modern times by paraphrasing a comment from New York Times op-ed columnist David Brooks: “If political leaders don’t have a moral compass, they aren’t going to get one at the White House.”

     

    There’s a discussion of the dirty-hands dilemma, named for the Jean-Paul Sartre play Les Mains Sales, in which a moral quandary results from having to choose between repellent options. Rhode cites a corporate executive who spoke at Stanford’s Center on Ethics, which she founded and directed for a time. The executive told of being torn between having to bribe customs officials in an impoverished country, in violation of the Foreign Corrupt Practices Act, and fulfilling his goal of buying and importing goods made by poverty-stricken women seeking to feed their children. “This guy had a PhD in philosophy from Stanford, and he wasn’t sure how to deal with it,” Rhode says.

     

    Now we wonder to what extent Americans are resigned to dirty hands among their leaders, Rhode notes. Political theorist Michael Walzer, whom she cites, agrees with Sartre’s character Hoederer, a communist leader, when he exclaims, “I have dirty hands right up to the elbows. I’ve plunged them in filth and blood. Do you think you can govern innocently?” Rhode updates that with a reference to the TV series The West Wing, in which the president and his chief of staff debate assassinating a foreign minister involved in terrorism. That would be wrong, the president protests. The aide insists he must do it anyway. “Why?” the president asks. “Because you won,” the aide replies.

     

    The lively classroom debate that follows, in the best Socratic tradition, finds no easy answers. What would you have done? Rhode asks her students. The session ends with a sequence of video clips compiled by a student, including one of Frank Underwood in House of Cards, who, encountering a neighbor’s dog hit by a car and whimpering in pain, calmly strangles the animal, wipes his hands clean and says, “Moments like this require someone who will act, who will do the unpleasant thing, the necessary thing.” Comments Rhode, “Literally, dirty hands.” Elsewhere, she notes, a website has a quiz asking who spoke those words, Frank Underwood or Machiavelli.

     

    From her first days as a Yale undergraduate, Rhode was a keen student of the kind of sticky situations that would inform her search for clarity of thought. An early lesson exposed her to male privilege, led to her discovery of feminism and propelled her on her long march toward opposing oppression.

     

    When Rhode arrived in New Haven in 1970 as part of Yale’s second-ever undergraduate class to include women, she found herself bucking a 200-year school tradition of masculine advantage and female exclusion. At an alumni reunion not long before her matriculation, she learned, two striptease artists had performed to an audience that included the university’s provost, an event that Rhode said captured the flavor of the times. “What is the official Yale position toward this?” someone asked the provost when the women had finished their acts. He gave the questioner a stern look, according to a contemporary observer, William F. Buckley Jr. “Yale’s position is that the Second One is better than the First,” the provost said.

     

    Rhode recounts the incident in her 2014 book, What Women Want: An Agenda for the Women’s Movement. She points out that when she entered the academy, it was pretty much a closed male shop, where some maintained an actively hostile attitude toward women.

     

    Yale administrators, when the school first admitted women, were evidently oblivious to any implied insult as they described the school’s new coed student body as “a thousand male leaders and 250 women,” Rhode reports dryly.

     

    “It wasn’t sexism on steroids, exactly,” she says. “But it was a big undercurrent. Women were an unwanted minority. There wasn’t even a term for sexual harassment.”

     

    The reunion affair wasn’t Rhode’s only stripper story. After Yale and her clerkship with Marshall, she headed west in 1979 to become a Stanford law professor, joining civil and criminal procedure scholar Barbara Babcock and assistant professor Carol Rose, who left Stanford at the end of that school year. The rest of the faculty was composed of 36 male professors.

     

    Rhode found Stanford little different from Yale. Still, she says, she was unprepared for how lonely it would be. “I had done no research at that point on gender bias or gender stereo-types. One thing that struck me as odd was how often I was mistaken for Barbara Babcock. I mean, she was tall and brunette,” says Rhode, who has blond hair and is much shorter than Babcock. “At one point Barbara and I circulated a memo asking the faculty to perform a thought experiment: What if you were the only man teaching at the law school? It was like a feather falling into a well. It became known as the ‘Barbara and Deb need a friend’ memo. That somewhat missed the point, though it was true.” She said it reminded her of the many times at the Supreme Court when, despite their obvious dissimilarities, Sandra Day O’Connor and Ruth Bader Ginsburg were mistaken for each other by confused male lawyers. At one point, Rhode recalls, women advocates presented the female justices with T-shirts reading, “I’m Ruth, Not Sandra” and “I’m Sandra, Not Ruth.”

     

    ‘At one point Barbara and I circulated a memo asking the faculty to perform a thought experiment: What if you were the only man teaching at the law school? It was like a feather falling into a well.’

     

    Her most vivid memory of her early days at Stanford Law: At then-dean Charles Meyers’s retirement dinner in 1981, alumni threw a party at the local country club and hired a stripper to perform. “None of us women present could quite believe it was happening — including the dean’s wife,” Rhode says. “In [Meyers’s] defense, it wasn’t he who made the arrangement, but there was a reason why his pals thought he’d be amused. The dean appreciated the thought behind the invitation and, well-fortified by bourbon, warmly embraced the invited guest.”

     

    Rhode’s tales of boorish campus hijinks enliven a scholarly tome, display her sense of humor and disclose something about the breadth of her thinking. She’s a smart and witty scold. If Rhode has weaponized her intellect, she uses no cudgel but rather the rapier of moral suasion to skewer oppressive foes.

     

    “Deborah Rhode has played an extraordinary role in the life of Stanford Law School,” former dean Kathleen M. Sullivan told Stanford in an email. Since transitioning back to practice (and becoming the first female name partner at a Top 100 law firm), Sullivan has continued to track Rhode’s work. “In her prolific scholarship on the legal profession and women and the law, she combines meticulous research with graceful and lively writing that gives her work a broad audience. She brings to her work the generosity and fair-mindedness that also characterize her interactions with her colleagues and students.”

     

     

    Originally no feminist, Rhode had an epiphany during her undergraduate years, when she told a grad student adviser at Yale — Rhode describes her as a braless libber — that she wanted to study poverty. The woman gave her Simone de Beauvoir to read. That pioneer of social theory and political activism opened her eyes. “I can still remember sitting in the huge Yale library reading room and suddenly seeing the world in a different way,” she says. “De Beauvoir’s discussion of the subordination of women and its underlying causes made me see my parents’ marriage, my own relationships and the situation of female undergraduates at Yale in a new light.” She graduated summa cum laude in political science in 1974, then entered the law school.

     

    In the 1980s, after Rhode had become a Yale trustee, she says she tried to get others on the mostly male board to recommend awarding de Beauvoir an honorary degree. “I encountered startling sexism,” she recalls. “ ‘How do we know she wrote the book?’ they said. ‘It might have been her husband.’ ”

     

    At both Yale and Stanford, especially following the Dean Meyers retirement party, Rhode says she saw her path more clearly. Meyers had urged her to teach contracts to avoid being “typed as a woman,” as he put it. “I replied, with irony, that being typed as a woman would hardly come as a shock to anyone who knew me.” After the stripper episode, the decision came easily. “To hell with contracts,” she remembers thinking. “The law school needs a course on gender.” She began with a class on gender law and public policy. When she informed Thurgood Marshall that would be her subject, she says her former boss laughed. “Really? They need a course on [sex discrimination] at Stanford? It seems to come naturally to the rest of the country.”

     

    Rhode’s prolific output, her choice of neglected yet crucial topics and her incisive thinking have brought her honors and influential posts. She has been on the American Bar Association’s Commission on Women in the Profession, and she founded the Stanford Center on the Legal Profession. The 30 books she has written or edited include The Trouble with Lawyers, an account of the vast problems facing the American bar; The Beauty Bias, which critiques the strangle-hold of appearance discrimination on our society; and Moral Leadership, a collection of essays she edited on the theory and practice of power.

     

     

    Since the election, Rhode has criticized and prodded those in power. There’s been a law journal article on reproductive justice; a Washington Post op-ed titled “Six of the Worst Cuts in Trump’s Budget”; and a Daily Journal column deploring conservatives’ reproductive rights agenda that, she wrote, “would make a bad situation worse and place women’s reproductive autonomy at increased risk.”

     

    In a book she’s drafting on character, she terms the lack of emphasis that today’s voters place on character “a worrisome trend.” During the 2016 presidential campaign, she writes, two-thirds of Americans did not think Donald Trump had “strong moral character,” and only a third thought he was trustworthy.

     

    Rhode takes on eminent jurists too. When the 9th U.S. Circuit Court of Appeals’ then-chief judge, Alex Kozinski, ignored a nonbinding federal hiring plan that urged judges to hold off on recruiting third-year law candidates for clerkships until specified dates, Rhode was publicly outraged. Kozinski told the New York Times that he began to recruit promising clerks “at birth” and would have nothing to do with the rules. In 2008, Rhode made clear her view of Kozinski’s effort to interview Stanford Law students far earlier than the plan envisioned. “We had a meaningful exchange of views,” she said of her private dialogue with Kozinski. “He appears to have a sense of entitlement and to feel an insularity from accountability.”

     

    Legal ethicist Stephen Gillers says Rhode deserves applause for her out-spoken public critiques. “I’ve watched her career,” he said by phone from his office at New York University. “She’s a force of nature. She’s energetic, determined, decisive and scholarly. She’s done more to emphasize the public respon-sibilities of the private bar than any other lawyer of her generation. I place her very high among feminist scholars and legal theorists.”

     

    As Rhode takes stock of her career, she’s proud of her own leadership at Stanford Law and of the tangible outcome of her relentless efforts over the decades to advance women’s causes. In a quality-of-life survey she and others did when she chaired a Stanford provost’s committee on the status of women faculty, women law and engineering professors were shown to have the highest satisfaction levels of any cohorts at the university. “And yes, I worked endlessly to address gender-related issues as a member of the Law School faculty, both for students and colleagues, and now as co-chair of the Faculty Women’s Forum,” she says.

     

    Access to justice, the issue that whetted her appetite for a career in scholarship and advocacy during her days at the civil legal aid clinic, remains atop Rhode’s agenda. Earlier this year — even though she was skeptical it would do any good — Rhode put together an open letter to Congress protesting a proposal to cut federal funding that assists nonprofit legal aid organizations. She gathered 1,000 signatures from legal scholars around the country supporting her view. “My colleagues need to focus more on access-to-justice issues,” she says, ever the advocate.

     

    In many respects, Rhode is a realist, describing the problems with the world as she sees them. But Sullivan sees something else in her too. “Deborah has a wonderful and rare scholarly optimism — a belief that careful study and fair analysis can produce better outcomes for our profession and our society. She models all that is best about our profession.”

     

     

    John Roemer has covered California lawyers and courts for 25 years.

     

     

     https://medium.com/stanford-magazine/deborah-rhode-ethics-leadership-gender-law-5fd49dc43832

     

     

     

     

  • 09/10/2017 8:00 PM | Denise Bashline (Administrator)

    ABA Journal News 

    September 8, 2017

    By Debra Cassens Weiss

     

     

    Florida Bar Foundation logo/Twitter

     

    The Florida Bar Foundation’s board of directors has approved allocating up to $500,000 to support legal organizations after Hurricane Irma.

     

    The money can be spent to repair building damage, cover equipment losses and help clients with hurricane-related legal issues, according to a press release. The bar foundation has also created the Florida Hurricane Legal Aid Fund to collect donations for civil legal assistance for victims of Hurricane Irma and any hurricanes that follow.

     

    in addition, the foundation has created a “storm aid” website providing links to volunteer opportunities for Florida lawyers. The website also provides links to FloridaLawHelp.org, where Florida residents can find their local legal aid organization, and a link to Florida Free Legal Answers where Floridians can post

    civil legal questions to be answered by volunteer lawyers.

     

    The bar foundation funding for civil legal aid comes from Florida’s share of a legal settlement between Bank of America, the Justice Department and six states.

     

     

     http://www.abajournal.com/news/article/florida_bar_foundation_allocates_up_to_500k_for_civil_legal_aid_after_hurri

     

     

  • 09/10/2017 7:58 AM | Denise Bashline (Administrator)

    At The Lectern

    September 9, 2017

    By David Ettinger

     

     

    Responding to concerns frequently expressed by Chief Justice Tani Cantil-Sakauye (see recently here and here), legislation introduced yesterday in the state Senate would make it illegal in many situations for federal immigration agents to enter California courthouses and other state-owned buildings.  (Technically, the legislation — Senate Bill 183 — was not “introduced” yesterday; it’s a gut-and-amend bill.)

     

    The Legislative Counsel’s digest summarizes the bill, saying it “would prohibit federal immigration enforcement agents, officers, or personnel from entering a building owned and occupied, or leased and occupied, by the state, a public school, or a campus of the California Community Colleges, to perform surveillance, effectuate an arrest, or question an individual therein, without a valid federal warrant.”

     

    Echoing the Chief Justice’s statements (e.g., here), SB 183 includes a declaration that “[t]he presence of federal immigration enforcement agents or personnel in various state buildings or facilities in which immigrant community members appear to report violations of state laws or regulations will serve to discourage them from reporting those violations, against the public interest of all Californians.”

     

     

     http://www.atthelectern.com/expressing-worries-similar-to-the-chief-justices-new-state-bill-would-restrict-immigration-agents-access-to-california-courts/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+AtTheLectern+%28At+the+Lectern%29

  • 09/09/2017 10:00 AM | Denise Bashline (Administrator)

    ABA Journal News

    September 8, 2017

    By Debra Cassens Weiss

     

     

     hand credit card

    Equifax data breach

     

    Two Oregon residents have quickly filed a class action lawsuit against credit-reporting agency Equifax that alleges negligence in a data breach that may have affected 143 million people.    


    Mary McHill of Portland and Brook Reinhard of Eugene filed the suit in federal court in Portland on Thursday, report the Oregonian and Bloomberg News.

     

    The suit was filed the same day that the company revealed hackers had accessed names, Social Security numbers, birth dates, driver’s license data and addresses of consumers from mid-May to July. Also hacked were credit card numbers for 209,000 people.

     

    The New York Times has a report on the company’s announcement.

     

    The law firms filing the suit are Olsen Daines and Geragos & Geragos.

     

    One of the lawyers who filed the suit, Michael Fuller, warned that an information website for consumers has terms and conditions that suggest users have to agree to take any cases to arbitration, according to the Oregonian. The website allows users to sign up for free credit monitoring.

     

    The terms of use say users have to agree to resolve all disputes by binding arbitration or through small claims court, and to waive the ability to participate in class actions and class arbitration, “before you will be permitted to register for and purchase any product from this site.” Users can opt out of the arbitration by notifying Equifax in writing within 30 days.

     

    Bloomberg News is reporting that three senior Equifax executives sold stock worth about $1.8 million days after the company discovered the data breach.

     

    Equifax says the executives were not aware of the incident at the time, and the shares sold constituted “a small percentage” of their holdings.

     

    Bart Friedman, a senior counsel at Cahill Gordon & Reindel, told Bloomberg that Equifax should conduct “a careful investigation and have an independent law firm interview the executives and review their emails and determine what they knew and when.”

     

     

     http://www.abajournal.com/news/article/class_action_is_filed_over_equifax_data_breach_information_website_has_arbi

     

     

  • 09/09/2017 9:58 AM | Denise Bashline (Administrator)

    New York Times

    September 8, 2017

    By Ben Sisario

     

     

     

    A crowd sings “We Shall Overcome” at a rally in Farmville, Va., in 1966. Credit The New York Times

     

    A federal judge on Friday struck down the copyright for part of the civil rights anthem “We Shall Overcome,” saying that the song’s adaptation from an older work — including changing “will” to “shall” — was not original enough to qualify for protection.

     

    The case is the latest one to cancel the copyright of a time-honored song that many people may well assume was available for anyone to sing, after “Happy Birthday to You” was declared part of the public domain last year. A similar suit challenging Woody Guthrie’s “This Land Is Your Land” is pending.

     

    The decision on “We Shall Overcome,” by Judge Denise L. Cote of United States District Court in Manhattan, concerns the first verse of the song, which contains the lyrics “We shall overcome / We shall overcome some day” and “Oh deep in my heart I do believe / We shall overcome some day.”

     

    Those lines, repeated in the fifth verse, have been associated with civil rights and peaceful protest for decades, and resurfaced most recently after the white supremacist rallies in Charlottesville, Va.

     

    The song’s origins have been traced to spirituals at the turn of the 20th century. In 1960 and 1963, the publisher Ludlow Music registered copyrights for it, saying that the song’s authors — including Pete Seeger — had made changes to earlier versions of it.

     

    Last year, the song’s copyright was challenged by the makers of a documentary on the song’s history and by the makers the 2013 film “Lee Daniels’ The Butler,” who wanted to use part of the song in the movie.

     

    Judge Cote granted partial summary judgment to the plaintiffs, saying that the song “lacks originality,” and in her ruling she focused on the changing of “will” to “shall.”

     

    “This single word substitution is quintessentially trivial and does not raise a question of fact requiring a trial to assess whether it is more than trivial,” Judge Cote wrote. “The words will and shall are both common words. Neither is unusual.”

     

    One party that stands to lose from the decision is a fund that supports social and cultural programs in the South, which receives royalties from commercial uses of the song.

     

    “We are delighted with the court’s ruling today giving this iconic civil rights song back to the public,” said Mark C. Rifkin, a lawyer for the plaintiffs.

     

    Paul V. LiCalsi, a lawyer for the publisher, said, “We do believe that the changes made to the first verse were significant and iconic, and we are very disappointed in this ruling, which takes the determination away from a jury.”

     

    In addition to challenging the first and fifth verses of “We Shall Overcome,” the plaintiffs also sought to have the copyright for the entire song declared invalid, accusing its publishers of committing a fraud on the United States Copyright Office through its registrations.

     

    Judge Cote denied summary judgment on that point, saying it would take a trial to resolve the question.

     

     

     https://nyti.ms/2xSyWYK

     

     

     

  • 09/09/2017 9:56 AM | Denise Bashline (Administrator)

    Marin County Bar Association

    August 29, 2017

    By Charles Dresow

     

     

    Robert F. Kennedy 

     

    A careful study of political speeches can provide the trial attorney with outstanding examples of verbal advocacy and persuasion. Like great speeches, effective closing arguments are not read from pieces of paper or repeated from power point slides. They connect with their audience. Like great speeches, effective closing arguments are made while looking your audience in the eye and capturing their hearts through careful word choice and persuasive argument. They do not make apologies and they create an emotional surge in the jury that leads them to deliberate in your client’s favor.

     

    Robert F. Kennedy’s powerful speech the day Martin Luther King, Jr. was assassinated remains relevant today and illustrates the direct and effective language needed for a great closing argument. His word choice was clear and on point with the purpose of the speech. Through use of direct and unifying language, he led his audience towards a common purpose. His language, theme and purpose are so clear that today’s reader remains emotionally connected with the speech. Attorneys can learn much from it.

     

    On April 4 1968 Martin Luther King was murdered. Across the country, cities began to burn. Robert Kennedy was campaigning for President. He learned of the assassination prior to boarding his plane to give a speech in Indianapolis. Upon arrival, he was advised that the police could not guarantee his safety and that he should cancel his speech. He gave the speech anyway. Upon ascending a flatbed truck with a microphone, Mr. Kennedy asked an aide if the crowd knew of Dr. King’s death. Then he began:

     

    I have bad news for you, for all of our fellow citizens, and people who love peace all over the world, and that is that Martin Luther King was shot and killed tonight.

     

    Martin Luther King dedicated his life to love and to justice for his fellow human beings, and he died because of that effort.

     

    In this difficult day, in this difficult time for the United States, it is perhaps well to ask what kind of a nation we are and what direction we want to move in. For those of you who are black—considering the evidence there evidently is that there were white people who were responsible—you can be filled with bitterness, with hatred, and a desire for revenge. We can move in that direction as a country, in great polarization—black people amongst black, white people amongst white, filled with hatred toward one another.

     

    Or we can make an effort, as Martin Luther King did, to understand and to comprehend, and to replace that violence, that stain of bloodshed that has spread across our land, with an effort to understand with compassion and love.

     

    For those of you who are black and are tempted to be filled with hatred and distrust at the injustice of such an act, against all white people, I can only say that I feel in my own heart the same kind of feeling. I had a member of my family killed, but he was killed by a white man. But we have to make an effort in the United States, we have to make an effort to understand, to go beyond these rather difficult times.

     

    My favorite poet was Aeschylus. He wrote: “In our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, against our will, comes wisdom through the awful grace of God.”

     

    What we need in the United States is not division; what we need in the United States is not hatred; what we need in the United States is not violence or lawlessness; but love and wisdom, and compassion toward one another, and a feeling of justice toward those who still suffer within our country, whether they be white or they be black.

     

    So I shall ask you tonight to return home, to say a prayer for the family of Martin Luther King, that's true, but more importantly to say a prayer for our own country, which all of us love—a prayer for understanding and that compassion of which I spoke.

     

    We can do well in this country. We will have difficult times; we've had difficult times in the past; we will have difficult times in the future. It is not the end of violence; it is not the end of lawlessness; it is not the end of disorder.

     

    But the vast majority of white people and the vast majority of black people in this country want to live together, want to improve the quality of our life, and want justice for all human beings who abide in our land.

     

    Let us dedicate ourselves to what the Greeks wrote so many years ago: to tame the savageness of man and make gentle the life of this world.

     

    Let us dedicate ourselves to that, and say a prayer for our country and for our people.

     

    Kennedy’s speech creates a powerful bond between speaker and audience with the use of a simple device: “we.” Using “we” in a closing argument can create a similar bond with the jury and conveys that their decision is a shared experience with the speaker. Kennedy’s word choice is crucial to the effectiveness of his speech, just as it is in a closing argument. He creates a rhythm with his words. He uses “I” to make a request of the audience or share a personal story, then he uses “we” to create a bond of shared purpose and then uses “us” to further strengthen that bond of shared goals with his listeners. He distills the options open to his audience into clear choices and suggests, rather than orders his audience to join him in making the right choice. He never speaks down to his audience, never tells them what do. Rather, through careful use of language and imagery he persuades them to follow his lead away from violence.

     

    Kennedy did not use power point slides or read from a tablet. Given without notes, his speech is an amazing piece of oral advocacy that still resonates to this day. It provides a brilliant example of the same techniques that can help to build an effective closing argument.

     

     

    Charles Dresow is a partner at Ragghianti Freitas LLP. His practice focuses on representing those accused of crimes.

     

    Listen to Senator Kennedy on April 4, 1968: 

     

     

    https://youtu.be/BCrx_u3825g

     

     

     

    https://www.sfpa.com/admin/website/system-pages/?pageId=1851105

     

     

     

     

     

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