Legal Ethics Forum

Fordham Law Review's Lawyering in the Regulatory State Colloquium, April 2016

Foreword: Lawyering in the Regulatory State

By Nancy J. Moore

Recalling the Lawyers: The NHTSA, GM, and the Chevrolet Cobalt

By Bernard W. Bell

Ethics For Examiners

By Daniel J. Bussel

Nothing Could Be Finer?: The Role of Agency General Counsel in North and South Carolina

By Elizabeth Chambliss & Dana Remus

The Laws of Agency Lawyering

By George M. Cohen

Time, Due Process, and Representation: An Empirical and Legal Analysis of Continuances in Immigration Court

By David Hausman & Jayashri Srikantiah

Inside Lawyers: Friends or Gatekeepers?

By Sung Hui Kim

Lawyer Speech in the Regulatory State

By Renee Newman Knake

Lawyers and the Secret Welfare State

By Milan Markovic

Lawyering Within the Domain of Expertise

By David McGowan

Lawyers in the Shadow of the Regulatory State: Transnational Governance on Business and Human Rights

By Milton C. Regan, Jr. & Kath Hall

The Wrong Way to Oppose BDS (Again)

The Faculty Lounge

The Wrong Way to Oppose BDS (Again)

[Cross-posted from The Faculty Lounge]

The Louis D. Brandeis Center has filed a lawsuit against the American Studies Association seeking to enjoin the ASA’s resolution to boycott Israeli academic institutions.  The complaint asserts two bases for the injunction:  First, that an “academic boycott of a foreign country is simply outside of the ASA’s authority to act;” and second, that certain voting irregularities render the resolution invalid.  As I explained in an earlier post – when the idea was first bruited – this lawsuit is a very bad idea.  Although I am strongly opposed to academic boycotts, I believe that the lawsuit is wrong legally, strategically, and politically.

Legally.  The main argument in the lawsuit is that the ASA resolution was ultra vires, in that it was not authorized by the relevant provision of the organization’s constitution.  Article I, § 2 of the ASA constitution, however, states that,

The object of the association shall be the promotion of the study of American culture through the encouragement of research, teaching, publication, the strengthening of relations among persons and institutions in this country and abroad devoted to such studies, and the broadening of knowledge among the general public about American culture in all its diversity and complexity. (emphasis added)

Proponents of the resolution will therefore be able to argue that the boycott will strengthen relations with institutions in many more countries than it will restrict.  And though I personally disagree strongly with that position, it is hard to imagine that a court will want to second-guess the organization about the relative importance of its external relationships.

Strategically.  It is an unfortunate fact that the leadership of the ASA has become dominated by BDS advocates, and that the membership voted strongly for the boycott resolution.  Even if the lawsuit were successful on ultra vires or procedural grounds, the ASA could quickly remedy the defects, either via constitutional amendment or re-voting.  The result would simply be another debate and another boycott resolution.  The more likely outcome, however, is that the lawsuit will be dismissed, which of course will be seen as a reaffirmation of the BDS resolution.

Politically.  Lawsuits such as this one simply reinforce the claim that friends of Israel want to squelch public debate.  Like it or not, the ASA has chosen to take a public position on Israel, supported by a clear majority of its voting members.  Overturning the vote through legal action would be broadly seen as anti-democratic.

The ASA boycott of Israel is discriminatory, hypocritical, and anti-intellectual.  The politicization of an academic association is badly misguided.  Nonetheless, the way to oppose BDS is through principled argument, not judicial intervention. 

 

The Louis D. Brandeis Center has filed a lawsuit against the American Studies Association seeking to enjoin the ASA’s resolution to boycott Israeli academic institutions.  The complaint asserts two bases for the injunction:  First, that an “academic boycott of a foreign country is simply outside of the ASA’s authority to act;” and second, that certain voting irregularities render the resolution invalid.  As I explained in an earlier post – when the idea was first bruited – this lawsuit is a very bad idea.  Although I am strongly opposed to academic boycotts, I believe that the lawsuit is wrong legally, strategically, and politically.

Legally.  The main argument in the lawsuit is that the ASA resolution was ultra vires, in that it was not authorized by the relevant provision of the organization’s constitution.  Article I, § 2 of the ASA constitution, however, states that,

The object of the association shall be the promotion of the study of American culture through the encouragement of research, teaching, publication, the strengthening of relations among persons and institutions in this country and abroad devoted to such studies, and the broadening of knowledge among the general public about American culture in all its diversity and complexity. (emphasis added)

Proponents of the resolution will therefore be able to argue that the boycott will strengthen relations with institutions in many more countries than it will restrict.  And though I personally disagree strongly with that position, it is hard to imagine that a court will want to second-guess the organization about the relative importance of its external relationships.

Strategically.  It is an unfortunate fact that the leadership of the ASA has become dominated by BDS advocates, and that the membership voted strongly for the boycott resolution.  Even if the lawsuit were successful on ultra vires or procedural grounds, the ASA could quickly remedy the defects, either via constitutional amendment or re-voting.  The result would simply be another debate and another boycott resolution.  The more likely outcome, however, is that the lawsuit will be dismissed, which of course will be seen as a reaffirmation of the BDS resolution.

Politically.  Lawsuits such as this one simply reinforce the claim that friends of Israel want to squelch public debate.  Like it or not, the ASA has chosen to take a public position on Israel, supported by a clear majority of its voting members.  Overturning the vote through legal action would be broadly seen as anti-democratic.

The ASA boycott of Israel is discriminatory, hypocritical, and anti-intellectual.  The politicization of an academic association is badly misguided.  Nonetheless, the way to oppose BDS is through principled argument, not judicial intervention. 

The Wrong Way to Oppose BDS (Again)

The Louis D. Brandeis Center has filed a lawsuit against the American Studies Association seeking to enjoin the ASA’s resolution to boycott Israeli academic institutions.  The complaint asserts two bases for the injunction:  First, that an “academic boycott of a foreign country is simply outside of the ASA’s authority to act;” and second, that certain voting irregularities render the resolution invalid.  As I explained in an earlier post – when the idea was first bruited – this lawsuit is a very bad idea.  Although I am strongly opposed to academic boycotts, I believe that the lawsuit is wrong legally, strategically, and politically.

Legally.  The main argument in the lawsuit is that the ASA resolution was ultra vires, in that it was not authorized by the relevant provision of the organization’s constitution.  Article I, § 2 of the ASA constitution, however, states that,

The object of the association shall be the promotion of the study of American culture through the encouragement of research, teaching, publication, the strengthening of relations among persons and institutions in this country and abroad devoted to such studies, and the broadening of knowledge among the general public about American culture in all its diversity and complexity. (emphasis added)

Proponents of the resolution will therefore be able to argue that the boycott will strengthen relations with institutions in many more countries than it will restrict.  And though I personally disagree strongly with that position, it is hard to imagine that a court will want to second-guess the organization about the relative importance of its external relationships.

Strategically.  It is an unfortunate fact that the leadership of the ASA has become dominated by BDS advocates, and that the membership voted strongly for the boycott resolution.  Even if the lawsuit were successful on ultra vires or procedural grounds, the ASA could quickly remedy the defects, either via constitutional amendment or re-voting.  The result would simply be another debate and another boycott resolution.  The more likely outcome, however, is that the lawsuit will be dismissed, which of course will be seen as a reaffirmation of the BDS resolution.

Politically.  Lawsuits such as this one simply reinforce the claim that friends of Israel want to squelch public debate.  Like it or not, the ASA has chosen to take a public position on Israel, supported by a clear majority of its voting members.  Overturning the vote through legal action would be broadly seen as anti-democratic.

The ASA boycott of Israel is discriminatory, hypocritical, and anti-intellectual.  The politicization of an academic association is badly misguided.  Nonetheless, the way to oppose BDS is through principled argument, not judicial intervention. 

Lawyers, lawsuits, and the water crisis in Flint, Michigan

From NPR’s All Things Considered:

Out of State Lawyers Descend on Flint, Mich., Amid Water Crisis

For the most part, official help has been slow in getting to Flint, Mich., but one group of first responders is on the ground. A growing number of out of state lawyers are setting up shop in Flint, and they are filing dozens of lawsuits.

Listen to the coverage by Steve Carmody here (disclaimer, you’ll hear my thoughts about the situation during the last few seconds of this 3 1/2 minute radio spot).  Or read the full transcript after the jump. (Cross-posted at Contemporary Professional Responsibility.)

What A Good Idea

The proposal to divide the California bar's regulatory job (admission and discipline) from its lobbying job is sound and should be adopted.  The jobs require different skills and at times create tension if not conflict.  Dividing these jobs will not cure all the bar's ills at once, but it is a useful step.

DM

Ellen Yaroshefsky to Lead Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra

Congratulations to Ellen Yaroshefsky on her appointment. Ellen is a terrific choice to lead an Institute named after legal ethics legend (and our former co-blogger) Monroe Freedman.

 

William Kelley’s cynical claim that under President Bush a Garland nomination would have been "laughed out of the Oval Office”

His letter to the New York Times is here:

http://www.nytimes.com/2016/04/02/opinion/implausible-supreme-court-scenario.html?_r=0

He is responding to my op-ed here:

http://www.nytimes.com/2016/03/23/opinion/bush-would-have-nominated-garland.html

Kelley describes a President Bush who was so rigidly committed to “conservative” judicial philosophy that he would have refused to nominate someone like Judge Garland to the Supreme Court, even if he had needed to get a nominee confirmed by a Democratic controlled Senate (that is the scenario I was discussing in my op-ed).  Kelley then goes even further to say that President Bush would have laughed at any anyone who even suggested nominating Garland.

That is not the President Bush I knew when I was in the White House (the same time Kelley was there).  Laughing at other people’s ideas is not the way I saw President Bush conduct himself in the Oval Office or anywhere else. 

President Bush’s own nominations to the Supreme Court also reveal a broader vision of the Court.  This is true even though all of his nominations were made when Republicans controlled the Senate and the President did not necessarily need to look for moderate nominees.

Chief Justice John Roberts was President Bush’s first choice for the first open seat on the Court.  Harriet Miers was his first choice for the second open seat on the Court.  Roberts and Miers are very different people, but one thing they share in common.  Both infuriated ultra conservative Republicans -- Roberts since he joined the Court and Miers at the time of her nomination.

Both Donald Trump and Ted Cruz are dumping on Roberts in the campaign.  Several Senators are now piling on.  Senator Charles Grassley of Iowa is Chairman of the Senate Judiciary Committee and is doing more than any other senator to block a vote on the Garland nomination.  Here is what he has to say about Chief Justice Roberts:

http://www.cnn.com/2016/04/05/politics/grassley-roberts-physician-heal-thyself/index.html

Apparently Chief Justice Roberts “politicized” the Supreme Court by refusing to rule against the Obama Administration in enough cases, particularly on health care.

Are Grassley and some of his colleagues worried that Judge Garland could be another Chief Justice Roberts?

I won’t repeat here diatribes – and falsehoods – recited by right wing pundits and politicians about Harriet Miers at the time of her nomination.  Part of their argument was that Miers was not qualified (she had not previously been a judge, yet several Supreme Court Justices have not previously been judges).  But it was her lack of an ideologically conservative record that conservatives were really worried about. 

Kelley advised President Bush on this nomination.  President Bush was aware of what ideological conservatives and other interest groups wanted, and yet President Bush nominated Miers anyway.  The conservatives had a fit, the Democrats let the nomination twist in the wind, and it was withdrawn.  President Bush’s second choice, Justice Samuel Alito, was more to the conservatives liking.

Kelley casts Bush in an unflattering light.   His depiction of the former President may provide convenient cover for Senators who don’t’ want to do their job and hold a hearing on President Obama’s nomination of Judge Garland.  But the notion that Bush would have laughed at the idea of a Justice Garland – or at the idea of nominating a moderate like Garland to the Court -- isn’t true.

Avoiding an ethics train wreck in Cleveland: Congress may need to pass an anti-bribery law covering political conventions to prevent GOP delegates from being bought

Bribery and gratuity statutes apply to government officials in their official duties, but probably don’t apply to delegates to political conventions:

http://www.cnn.com/2016/04/04/politics/contested-convention-bribing-delegates/index.html

The more general “theft of honest services” statute 18 U.S.C. § 1346 is a very poor fit for corruption of the nominating process.  See generally United States v. Turner, 459 F.3d 775 (6th Cir. 2006).  Congress has only a few months to act before the Cleveland convention.   The current situation is ripe for abuse.  Voters will not tolerate it, but Congress shouldn’t either.