Legal Ethics Forum

Ed Whelan digs himself in deeper in distancing his argument for recusal of a gay judge from Donald Trump’s argument for recusal of a “Mexican” judge

Whelan’s retort is here:

http://www.nationalreview.com/bench-memos/436284/stern-trump-curiel-walker

This argument only makes sense if the only thing wrong with Trump’s argument for recusal of a “Mexican” judge (e.g. a US federal judge of Mexican American heritage) is that the Trump University case did not specifically involve the rights of Mexicans or Mexican-Americans.   If it had, under Whelan’s theory the judge presumably would have to recuse if the judge had an interest as a member of a demographic group that could be substantially affected by the outcome of the case.  This argument would require judges to recuse from a wide range of civil rights and other cases simply because of their race, religion or sexual orientation.  Such an approach probably would have required the entire Supreme Court to recuse from the recent UT affirmative action case (for whatever reason Whelan never called for that even though all the Justices are members of ethnic groups affected by affirmative action and presumably have family members applying to colleges and universities).   Whelan’s position on recusal is as absurd as Trump's position from which Whelan now struggles to distance himself.   

Whelan and Trump are not only illogical but highly selective in targeting judges from certain groups.  The principal difference between the two is that one displays animosity toward the civil rights of gays (as illustrated by dozens of posts on National Review on-line over many years) and the other displays animosity toward persons of Mexican descent (as illustrated by dozens of comments made to the media and at campaign rallies).    This type of animosity towards entire groups of people is not an intellectual argument.    It is a dangerous mode of thinking that elsewhere has already proven its capacity to destroy the rule of law, and ultimately human civilization itself. 

SCOTUS: bribery requires payment for an official act, not just for preferential access

The Supreme Court’s opinion today illustrates yet again the limited reach of criminal bribery laws in fighting corruption.  

http://www.supremecourt.gov/opinions/15pdf/15-474_ljgm.pdf

Bribery laws do not reach government officials who set up special meetings or other forms of preferential access for gift givers, campaign contributors and future employers.  The Court recognizes that such conduct may be unsavory but it is not criminal.  

This makes preventative ethics rules – campaign finance, gifts to public officials and revolving door rules -- that much more important.  I discuss government ethics rules – and the very limited effectiveness of criminal prohibitions overall -- here:

http://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780195378719.001.0001/acprof-9780195378719

I discuss campaign finance in particular here:

https://www.amazon.com/Taxation-Only-Representation-Richard-Painter/dp/1939324122

Court Rightly Embraced a 'Living' Constitution in Death Penalty Case

That is the headline of my oped in today's National Law Journal, discussing the Court's approach to judicial bias.  Here is the gist:

How should we interpret our Constitution? Is it a living document, to be read in the context of present conditions and current knowledge, or should it be strictly limited by the "original meaning" on the day it was ratified? Although the debate may be unresolvable, the case of Williams v. Pennsylvania, recently decided by the U.S. Supreme Court, provides an almost textbook example of the contrast between the two methods. Justice Anthony Kennedy took a decidedly "living Constitution" approach to the case, while Justice Clarence Thomas addressed the central issue on originalist grounds. The difference was a matter of life or death.

Thomas' extreme version of originalism, which is fixed in an era long before psychology and cognition science emerged as rigorous disciplines, makes progress impossible. If a likely cause of judicial prejudice was unappreciated in the late 18th century, Thomas' jurisprudence would take no account of it today. No matter how much we have come to know about predisposition and unconscious bias, that information could play no part in constitutional decision-making. History, in Thomas' view, trumps science.

Kennedy's approach is far wiser and much sounder, relying on living insights into judicial (and other) decision-­making that were unavailable to the founding generation. Bias, Kennedy observed, is too "difficult to discern in oneself." Thus, Thomas' originalist presumption of nearly absolute judicial impartiality must give way to informed psychology. "When a judge has served as an advocate for the State in the very case the court is now asked to adjudicate," wrote Kennedy, "a serious question arises as to whether the judge, even with the most diligent effort, could set aside any personal interest in the outcome."

You can read the entire article here.

[Cross posted from The Faculty Lounge]

Data and Incivility

We live in an age where governments, business entities, and universities collect copious amounts of data. Much of it can be accessed by anyone with an internet connection.  While this is generally a good thing, lawyers are usually not experts at collecting, analyzing, or interpreting data.  Nevertheless, this will not stop us from using data to buttress our positions (in the courtroom or otherwise).  A recent example is affirmative action opponents' embrace of the "mismatch" theory.  A much less well-known example about which I have written is when legal market reformers treat "unmet legal needs" as coextensive with lack of access to justice.

I love data.  But data should rarely be wielded as controlling authority such that anyone who refuses to accept "the data" is acting in bad faith.  Many disagreements about "the data" can in fact be traced to the parties' focus on different datasets or using data in ways that were not intended by those who collected it.  

The increasing reliance on data poses problems for those who seek to instill greater civility in the legal profession.  Data is supposedly "objective." Consequently, whereas we can accept - grudgingly  - when our adversaries differ in their interpretations of certain cases or statutes, we are likely to be far less accepting when they refuse to acknowledge the purportedly objective, data-driven reality.  We are seeing this play out with the value of law school debate.

The solution, I submit, is not to abandon data but for lawyers to approach it critically, even if happens to support our positions. And we should refrain from bludgeoning our opponents with impressive-sounding data unless we are confident that we understand its importance and limitations.  An example of what not to do can be found here.  [IRS sole proprietor filings  should probably not be used to determine solo practitioner incomes because, inter alia, you're capturing tens of thousands of individuals who either report no income, don't work as lawyers, and/or work only part-time while excluding solos who have organized as professional corporations.] 

When do we say enough? US House Members and lawyers persist with $20 million plus Congressional investigation of the IRS

Much of what Congress is investigating – and has been investigating for over three years -- is the way the IRS investigated the quasi-political 501c(4) organizations that proliferated after the Supreme Court’s Citizens United decision in 2010. Citizens United gave these organizations new “free speech” rights, including the right to use money from corporate donors to talk about specific candidates on the eve of an election.  In our money drenched campaign finance system, Members of Congress, among other elected officials, depend upon the support of these organizations to get reelected.  

Government agencies scrutinizing these organizations predictably incur the wrath of Congress.

The Federal Election Commission (FEC) tried to enforce the election law so these organizations could not do too much of the work of political campaigns. But the Supreme Court forced the FEC to back off with its decision in Citizens United.

Section 501c4 of the Internal Revenue Code provides that some of these organizations are tax exempt. All of us would like to be tax exempt and have our businesses be tax exempt, but the law makes it clear who pays taxes and who does not.   Organizations that don’t pay taxes when they should pay taxes are not taxpayers. They are law breakers.

The IRS is charged with making sure 501c4 organizations do not engage in activities inconsistent with their tax exempt status. Several years ago, the IRS did a very poor job of discharging these duties (email searches conducted by IRS staff focused on “Tea Party” and similar groups without sufficient evidence of corresponding efforts to pursue tax abuse by groups on the left).  

The IRS employees who engaged in this inappropriate conduct are gone, as are many of the people who supervised them. The IRS has a new Commissioner.  The IRS inspector general has investigated what happened and has issued a report. Congress has investigated for three years.

And the IRS still has a job to do, which is to make sure that tax exempt organizations – left right, center and apolitical -- do what the law requires them to do in order to stay tax exempt.   Politicians, including Members of Congress, may not like the IRS giving too much scrutiny to organizations that help their political campaigns. But it is not appropriate for Congress to use its own investigatory powers to intimidate the IRS. And the fact that the IRS did a very bad job three to five years ago does not justify a protracted war against the IRS, and its current Commissioner, while they are trying to enforce the law.

I summarize my latest objections to the direction of this investigation – including a laughable effort to take away the IRS Commissioner’s pension -- in my letter to Congress discussed here:

http://thehill.com/policy/finance/284296-bush-ethics-lawyer-slams-gop-for-seeking-to-intimidate-irs

Some have asked if I am still a Republican. Of course I am. But I support candidates who make government more efficient, cut taxes and streamline regulation, not those who act like bullies on a middle school playground. The House threatening to take away the IRS Commissioner’s pension is yet one more example of bad behavior.

This is in addition to costly government shut downs over budget bills, the Senate refusing to convene long overdue Supreme Court confirmation hearings for a very moderate nominee, and a presidential candidate’s foul mouthed insults at Muslims and Mexicans. Middle school students who behave badly go to the principal’s office (admittedly that means something very different depending upon whether one is in Texas or Minnesota).  Politicians who behave that way face the consequences in November (voter reaction will be different depending on the state, but overall it will not be good).

Lawyers – including lawyers conducting politically motivated “investigations” for Congressional committees -- helped create this mess. They have a responsibility to help clean it up and to urge their bosses to do the same.

The Ed Whelan/Donald Trump group based recusal theory applied to a “gay” judge, a “Mexican” judge, and then . . . .

A number of years ago I, and many other lawyers, took issue with Ed Whelan’s illogical argument for recusing a federal district judge from a same sex marriage case simply because the judge happened to be in a same sex relationship.  

http://www.legalethicsforum.com/blog/2011/04/it-is-bias-against-judge-walker-not-bias-of-judge-walker-that-is-at-issue-here.html

Donald Trump has expanded upon Whelan’s group based recusal theory for judges. Trump a few weeks ago demanded recusal of a judge from the Trump University case because the judge happens to be of Mexican heritage. The reason: Trump has said some unkind things about Mexicans.

So what happens if someone is elected president and then says some unkind things about Jews and Catholics? Under the Whelan/Trump group based recusal theory the entire United States Supreme Court must recuse from any case involving the president, presumably including presidential powers cases.

Here is probably the best discussion to date of the connection between Whelan’s position on recusal of the “gay” judge and Donald Trump’s position on recusal of the “Mexican” judge.

http://www.slate.com/blogs/outward/2016/06/06/trump_s_attack_on_judge_curiel_and_proposition_8_s_vaughn_walker.html

Let’s hope that most Americans prefer to live in a country where a judge is a judge, not a “gay” judge or a “Jewish” judge or a “Mexican” judge. Such attacks on an independent judiciary, and insistence that members of some groups are fit to serve as judges in particular cases and others are not fit to serve, was one of the earliest developments that undermined the Weimar Republic in the early 1930’s. Judge Noonan and I devote much of a chapter of our legal ethics casebook to what happened there.   It is our responsibility as lawyers to make sure it does not happen here.

"Gawker Exploring Lawsuit Against Peter Thiel"

Article. Peter Thiel, the high-tech billionaire, funded the tort suit by Hulk Hogan against the provocative website, Gawker. Now Gawker wants us to know that it would like to sue Thiel. In the modern era of litigation funding, I'm curious as to what theory Gawker could pursue. Excerpt:

Gawker Media is exploring options for litigation against Peter Thiel following the billionaire venture capitalist’s secret funding of lawsuits against the media company. According to a source within Gawker, the company’s legal team is looking to see if Thiel, who said he spent about $10 million funding other people’s suits, violated any laws.

“The lawyers are exploring whether this could be a case of tortious interference, racketeering or other potential claims,” said the source.

Gawker’s potential action against the early Facebook investor and PayPal cofounder comes after it filed for bankruptcy protection on Friday. That followed the decision by a Florida judge to deny Gawker’s request to stay a ruling that required it to pay $140 million to former wrestler Hulk Hogan. In March, a jury ruled that Gawker had violated Hogan’s privacy by publishing a sex tape of him with his friend’s wife and awarded him $115 million. The court later bolstered that amount by an additional $25 million for punitive damages.

"Judge Finds Prosecutors Withheld Evidence in Freddie Gray Officer Case"

Article. Excerpt:

The judge overseeing the trial of a police officer charged with murder in the death of Freddie Gray has determined that prosecutors withheld information that would have been beneficial to the defense.

Goodson's attorneys have argued that prosecutors withheld statements made last year by Donta Allen, a key witness. Allen was picked up by the Baltimore police van after Gray.

In his original statement to police in April last year, Allen said he heard banging coming from Gray's side of the vehicle. He gave a similar statement in a separate interview with prosecutors a month later, but the state never turned it over as evidence to defense attorneys. Williams found today that prosecutors committed a Brady violation — after Brady v. Maryland, a 1963 Supreme Court decision requiring prosecutors to disclose evidence that would aid the defense — because Allen's May 2015 statement was deemed exculpatory evidence.

“The state doesn’t get to decide whether or not to disclose information,” defense attorney Andrew Graham said. “The state sat on it for over a year. It’s not up to them to make that decision. Even a small piece of evidence may make a difference. It’s not fair to the defense.”

The Brock Turner Case and a Law Professor's Role

In an ideal world, the Brock Turner case would have led to greater awareness of racial and socioeconomic disparities in sentencing as well as reflection on how the criminal justice system treats victims of sexual assault.  Alas, that has not happened.  Instead the judge in the case - who was apparently well- regarded previously - has received death threats and is now facing a recall effort. Some commentators are calling for radical shifts in how criminal defense attorneys perform their jobs, even though Turner's attorneys are not alleged to have acted overzealously.  Others are pushing for initiatives that they have decried in contexts other than sexual assault. There seems to be some confusion even as to the basic facts of the case. 

Although Turner's sentence struck me as far too lenient, my only contribution to this maelstrom is to suggest that, if we are to have these important debates online, everyone involved needs to be especially scrupulous about disclosing possible biases and conflicts of interest.  This is especially the case for academics, who, while certainly entitled to their own personal views and opinions, are often relied upon by the media for their legal expertise.  Alas, that too has not happened.

Stanford Law Professor Michele Landis Dauber is a family friend of Turner's victim.  She put the victim in touch with one of the producers of the controversial film Hunting Ground, who recommended that the victim's powerful letter be released to Buzzfeed.  As reported by the New York Times, Professor Dauber was also the first to highlight extremely offensive language in the letter written by Brock Turner's father and is now leading the effort to recall the judge in the case.

Professor Dauber has every right to advocate for the victim in this case and to criticize the judge's treatment of her.  Indeed, my understanding is that she has long been concerned with the legal system's and universities' mishandling of sexual assaults.  The problem is that her connection to the victim and central role in publicizing the case has not been reported in many of stories I have read, including the Times story referenced above.  Other examples can be found here, here, and here.  Consequently, when Professor Dauber claims in the Times that the judge "had misapplied the law by granting Mr. Turner probation and by taking his age, academic achievement and alcohol consumption into consideration" it is unclear whether she is offering her expert opinion on California's sentencing laws or speaking as a friend and advocate for the victim.  In a similar vein, the public is likely to regard a recall campaign led by a concerned law professor very differently than a campaign started by a friend of the family.  For a short take on the problem with such campaigns, read here.

Law professors should criticize aspects of the legal system that we consider unjust.  But when the criticism derives not only from our knowledge of the system but also a personal connection to a particular case, that needs to be fully acknowledged.  Public understanding of the law is not furthered when it is unclear from which perspective law professors are speaking.

 

"Sacramento legal giant Quin Denvir dead at 76"

Here's the obituary of Quin Denvir, who was not just a great lawyer, but also a lawyer at the center of one of the more challenging cases in terms of the law governing lawyers -- the Unabomber defense. For many years, I've had students read William Finnegan's article (paywall), "Defending the Unabomber," and the students continue to say that it's one of the highlights of the semester.