Latest Scholarship

January 28, 2011

You Can’t Tell a Book by Its Cover

In my career as a lawyer in Davis, I had a surprising and painful but beneficial discovery of the truth of the common saying that you can't tell a book by its cover. It all started when a local bank in the community asked me to handle a case for two of its customers.

At the appointed time, my new clients, a husband and wife team, showed up. When I saw the couple, I felt that my jaw had dropped and that I would fall through the floor. They were Arabs!  My belief was that they and their compatriots had many times sworn to kill all the Jews in the Middle East and wipe the State of Israel off the map. They were the enemy to me and to my support of the State of Israel.  I was also awakened to the reality that this husband and wife team knew that I was Jewish. In their eyes, I was the enemy. The couple had dark complexions, black hair, and spoke with a Middle Eastern accent.

I quickly got over the shock of this introduction so that everything proceeded calmly and cordially. I was able to gather from my clients all of the information relevant to their case as well as answer questions that they asked.

Then we set up an appointment to meet a few days prior to going to court so that we could take care of any last minute items. Right after they left, I started struggling with some profound soul searching. I had been raised in a family that believed in and practiced tolerance. But I had failed to live up to all that I was taught when put to the test of dealing with my new clients.

I knew that I could not be effective in representing the interests of my clients if I did not overcome my bias. Every lawyer has a duty to represent a client zealously and within the bounds of the law. I could not do this if my personal views conflicted with those of my clients.

Thinking further, I remembered the experience of patriot John Adams way back in 1770 in defending the British soldiers who had shot protesting citizens in the Boston Massacre. Despite sharing the views of the protestors, Adams successfully defended the British soldiers because he believed that they were entitled to a fair trial. Adams then experienced insults and ridicule from the city's "patriots." As well, his law practice diminished because few patriots would deal with a "traitor."

I remembered too the famous Skokie, Illinois case that took place in the 1970's. A group of Nazi sympathizers planned to march in Nazi uniforms in the town of Skokie where they knew that a large part of the Jewish population was made up of Holocaust survivors.

The marchers were denied a city permit to have their parade. One of the marchers then sued the city of Skokie, claiming that his right of free speech was being denied. The marcher was represented in court by a Jewish lawyer who believed that the principle of free speech was more important than the subjectivities of the client or his lawyer. The lawyer won the case for his marcher client.

I was impressed by these two historical incidents although I did not believe that the case of my clients was as profound as those two. However, influenced by those two incidents, I satisfactorily resolved my own inner conflicts and proceeded with the case. We went ahead and happily gained an easy victory.

The story does not end here. Several weeks later, when I was walking downtown early one Saturday afternoon, I bumped into two friends, Barbara and Elmer. They were dressed very formally. I asked them whose wedding they had attended. They replied that they had not been to a wedding but rather a Bar Mitzvah, the first one that they had ever experienced and that they still did not understand everything about the ceremony.

I explained to them that a Bar Mitzvah is a coming of age religious ceremony that takes place when a boy reaches 13 years of age. At that time, he goes to a synagogue and affirms that he will honor a commitment to observe the Commandments spelled out in the Old Testament and related writings.  Girls go through the same sort of celebration and it is called a Bat Mitzvah. The terms are loosely translated as son or daughter of the commandment. The ceremony is followed by a festive reception with good food being served accompanied by good music being played.

Who do you think were the joyful and proud parents of the happy Bar Mitzvah boy? Yes, it was my client and his wife, the "Arabs." Following the war that Egypt and other nearby Arab countries waged unsuccessfully against the State of Israel when it was founded, Jewish citizens of those Arab countries were forced to leave their birth places where they and their ancestors had lived for hundreds of years. It is estimated that more than 800,000 people had to leave and were not permitted to take much with them. My client and his wife, both Egyptians, were part of this exodus.

I have never seen the husband or his wife since our day in court. But the entire experience of dealing with them has led to changing my outlook and behavior for the better. My jaw does not drop nor do I feel that I will sink into the floor when I now encounter this kind of experience. I have learned to be an observer, calmly look at each such incident, and, with my personal views under control, proceed to the next step.

Not too long after this episode with my clients, I had a great opportunity to test whether I had really learned from the experience. I was at the Rome airport waiting at the international terminal to catch my flight back to the United States. I noticed a grandmotherly looking Arab woman, dressed in native clothing and wearing a head scarf. She was walking around, flight ticket in hand, and showing signs of confusion. I guessed that she did not read or speak Italian or English and, of course, I did not speak Arabic.

I walked over to the lady and gestured that I wanted to see her flight ticket. She handed it to me and I quickly saw that both of us were on the same flight. I gestured to her to sit down and wait and that I would take her to the boarding area when the flight was ready for us. In due time, I escorted her to the boarding area where we boarded the airplane together. Then I personally led her to her assigned seat. She smiled and gave a silent nod of thanks.

I cheerfully walked down the aisle to my seat and sat down feeling that doing my homework had paid off. I was also optimistic that I could cope successfully with any other of my demons that dared to show themselves.

January 20, 2011

The Left Has a Lot to Answer For

Crossposted at Underbelly.

Seems like everybody who counts wants to weigh in on Freddie deBoer (who?) 's piece decrying the marginalization of the left in the blogosphere.  See link, link, link, link, and perhaps especially link and many more.  I won't pretend to have read all of them, and I certainly can't top the best of them but I do want to add a thought that I haven't seen well enough developed elsewhere.

For starters,  I think deBoer is right; the blogosphere does need a more engaged left.  We all need a better left: market liberalism has turned into a kind of groupthink which is bound to become (if has not already become) a blind alley.  Sooner or later somebody or something is bound to upset this conceptual applecart and the sooner it happens the better for everybody.   If you doubt it, recall how the right horned itself into the dialogue 30 years ago and how, for all the howling (and, okay, for all the mandacity, the irresponsibility and the outright cruelty) the enquiry has been enriched by its  presence.  The dialogue needs the left.

The obvious corollary is that if the left isn't part of the dialogue, it's its own fault: the left isn't in the dialogue because nobody is listening and nobody is listening because the left doesn't have much to say.  this is a harsh, smug, self-satisfied and dismissive response.  Yet I will embrace it, because I think it is true.  The fact is, the left hasn't had anything interesting to say in years.  And this is a pity, because there are so many things on which things to be said.

Start with free trade.  It's one issue on which neoliberals and (many) conservatives agree.   Trade barriers bad, free trade good.  The left doesn't like free trade; they say it robs us of good jobs at the expense of low-paid labor overseas.    The mainstream response is that it really doesn't work that way--but the left isn't persuaded and in truth, they have a lot of evidence on their side.  Yet where is it written that American (steelworkers, auto workers, textile workers, whatever) should live well while a Bagladeshi starves?  Is this really what the left wants?  I doubt it, but isn't it s legitimate concern, and as such, doesn't it deserve  a response?

Or take the closely related issue of (private sector) trade unions (remember them?).   The left pines for a day when a man (sic) with a good union job could expect to support his wife and a couple of kids with a home in the suburbs, like Homer Simpson?  Well, you know what?  We all pine for those days.  Or, everyone except Scrooge McDuck.  We doubt they are on offer again; we suspect they depend on grotesquely unbalanced world economy, supported by trade barriers (see previous paragraph) that allowed Charlie Wilson and Walter Reuther to set an above-market price and divvy up the proceeds while we all drove crap cars.  Or worse: they loaded us up with railway featherbedding, with printers' bogus, with an illimitable array of makework charades that loaded us all up with extra costs while doing exactly nothing--or, nothing positive--for the worker's sense of self-worth.

We don't want to go back there, do we?  Once again, the question is not rhetorical.  Maybe the answer is "sure."  But it is a question, and deserves a candid and reasoned response--the kind of response that can only come from those who appear most committed to the old and (seemingly?) discredited scheme.

Or take public employee unions.  This is a somewhat different issue because they didn't even exist in the old days.  I speak out of special interest here because I enjoy a public pension and I'm just delighted to have it, thank you.  And in general, I think it is a fine idea to have a public service that is well paid.  But "well paid" has to mean "well paid for services rendered."  Thus I'm not at all disturbed when we pay our public school teachers decent salaries, but don't we have the right to expect something in return?  Can we really justify having teachers so (comparatively) well paid when the results they turn in are so consistently awful?

Or take the calamity of the underclass.  The right made some of its greatest inroads a generation ago when they cast a cold eye on Great Society spending programs and ventured you can't solve problems by throwing money at them.  And remember what happened?  Okay, I'll remind you: what happened was that they were proved largely right: all kinds of noble aspirations withered into private honeypots for the well-connected; jobs for the boys (and later, girls).  In a way it is a cheat: a lot of the voices insisting most loudly that you couldn't solve problems by throwing money at them--a lot of those voices really didn't give a rat's hind end whether the problems got solved or not (and they certainly weren't interested in giving their advice to the military).  But at the core, they were right.  The "liberals" pretty well lost that round, and it may be what cut them off from their leftist roots.  But the "left" for the most part, seems not to have learned the lesson.  And once again, we need to frame it as questions: can we really, despite all the evidence, really solve problems by throwing money at them? Can you put our mind at rest on that issue?  If not, what do you have to offer that will trump our concerns.

I could on here but I suspect you get the drift.  To restate the general point: I think there's a large chunk of the citizenry--I'd count myself among it--who have a serious interest in the health of the body politic, and a genuine eagerness to help produce a just society in which everyone can live with decency and self-respect (and good luck with that, eh?).   We certainly aren't eager to sign on to what we regard as the mainstream conservative agenda.  We are, for example, deeply apprehensive about the rising power of "movement Christianity"--we tend to be pro-choice; we believe in human-made climate change; we're revolted  by vulgar creationism.  But we aren't at all persuaded that "the left" has answers that are distinctive or interesting or, most of all plausible.

There is another, even more, contentious, way of stating the point: the left is still stuck pre-1989.  I don't suppose there are any communists left anywhere any more except on the North Korean politburo.  But a whole world of traditional leftism crumbled along with the Berlin wall.  It would take a hero to rebuild, or rather "reconstruct" it all.  I suppose it seems unfair to impose the responsibility on the advocates--a dialogic form of "blaming the victim."  Yet if anybody has done--or even begun--the job in any remotely plausible way, then I have missed it.  Any takers?

January 12, 2011

Justice Kagan's Torture Memo:" It Can't Possibly Mean That"

Folks in the commentariat seems to believe the planets are in alignment as they read (or hear about) new-Justice Elena Kagan's first Supreme Court opinion. The topic is "bankruptcy," and the general sentiment seems to be that it is only fitting for the newbie to be handed an assignment so "unimportant."

In a narrow sense, they are right: the issue is a precise point of statutory interpretation (so precise you could be excused for wondering why the Court messes with it at all). That is: does the debtor get to deduct expenses for a car payment when he owns no car? On a hasty reading, the uninitiated reader might conclude that "yes, he does get the deduction." He might also conclude that the result is a bit silly but clarity and coherence have apparently never been part of Congress' brief.

Justice Kagan was not so easily fooled. She reads the statute a second time and finds that "the key word...is 'applicable'," and that the deduction just wasn't applicable in this case. Seven of her brethren (sic?) signed on. The opinion is a perfectly creditable piece of handiwork; you would expect no less from a first-tier Harvard law grad. From a more spacious vantage, however, the case really needs to be filed not under "bankruptcy" per se but under "statutory interpretation." And here, you might be tempted to wonder whether what they learn at the Harvard Law School is the art of torturing the statute until you extract a confession.

There's a back-story here that you'd never suss out of the opinion itself. Specifically, the language in question comes from the famous-all-over-town bankruptcy amendments of 2005, which made it much tougher for ordinary folks to get bankruptcy relief. Whether that's A Good Thing or not is the kind of issue on which, inevitably, tastes differ. But another issue, apart from substance, is quality of the statute as a piece of draftsmanship. Here there is much wider agreement: it's a mare's nest, a dog's breakfast, a can of worms, just about anything but the cat's meow. Cudgeling my brain, I can think of only one person who has ever gone on record as believing that the statute is carefully written.

No surprise, then, that an kind of cottage industry has developed in the lower courts since 2005 which you might call Saving Congress from Itself--more precisely, trying to read some sense into a statute which often doesn't make any sense. But this endeavor has not been purely technical. Rather, there seems to have developed a sense among the lower courts that what Congress intended to do was jam it to the debtor good and hard, and that if Congress didn't get it right the first time, then we must help them. Bankruptcy lawyers have fashioned a new canon of statutory interpretation: if the statute seems to favor the creditor, apply the statute; if it seems to favor the debtor, assume it's a mistake and favor the creditor anyway.

I wouldn't put Kagan in quite that camp. Her reading seems more rooted in the "Congress couldn't have said anything that stupid" school. And she obviously has a lot of company: the whole crew is on board. The whole crew, that is, with one exception: Antonin Scalia who ways in with a typical blunt assertion of a kind of plain-meaning rule (whatever Scalia may be willing to torture, you'd have to say that statutes are not on the list). As to bankruptcy issues, it's a fight he's had  before: famously with Justice Harry Blackmun and as recently as last spring, with Justice Samuel Alito.  From early in his career Scalia has made it clear that (at least on non-political, technical, issues) if Congress is determined to muck things up, he will let them muck away.

So we are left with the ironical conclusion that Justice Kagan, late darling of the left, begins her Supreme Court career by putting money in the pocket of the credit card companies. while the last man standing at the pass in defense of the beleagured debtor is Antonin Scalia.

Coda: I really don't mind the Chief Justice giving the newbie a fairly technical case on which she can win broad assent. I just hope it isn't a reflection on his view of Justice Kagan. Back in an earlier time, I remember that Chief Justice Warren Burger harbored contempt for at least two things: Justice Thurgood Marshall, and bankruptcy. So Marshall got to write bankruptcy opinions. They weren't bad opinions (Marshall had, after all, plenty of good clerks). But if that is going to be the Chief's attitude to bankruptcy cases, I suspect the Court is better off just not taking them at all.  

Second Coda:  My friend Bob thinks I am being unkind to Justice Marshall.   Maybe; I know that I take second place to  no one in my admiration of the old guy.  But I doubt that he really cared all that much about the priority of tax claims in Chapter X, or the fate of crooked securities entrepreneurs in Chicago.

[Coss-posted with some variations at Underbelly.]