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Like a fair number of other people, I'm completely captivated by Bryan Garner's videotaped interviews with Supreme Court justices on effective brief-writing. There's no shortage of insights to be gleaned from these discussions -- particularly from the Chief Justice. Of all of the interviews, however, Justice Scalia best summarized what's at stake in brief-writing with an anecdote from his D.C. Circuit days (roughly three and a half minutes into his first interview segment):
Let me say first of all how important lawyers' briefs are. One of the happiest events of my life was when I was sitting on the Court of Appeals for the D.C. Circuit, we had a lot of administrative law cases, which tended to be long cases with many briefs, and I remember one case we had, involving standards for automobiles. And there were a lot of intervenors and amici and what-not, and I read brief after brief, and I was really getting pretty punchy.
And I picked up this one brief, and all of a sudden it really captured my attention: Everything was so felicitously put, it was elegant, it was crisp, you could see where the writer was going.
And I said, who wrote this brief? And I turned over the front and it made me so happy to see that it was one of the best lawyers in Washington. And it made me very happy to know that you can tell the difference, you can really tell the difference.
(From what I can tell, he's referring to Center for Auto Safety v. Peck, 751 F.2d 1336 (D.C. Cir. 1985). I won't try to guess which brief was his favorite.)
Brief-writing is the most-enjoyable part of my enjoyable job. What I wouldn't give to someday write briefs that impress judges as much as the unnamed intervenor's brief impressed then-Judge Scalia.
A Side Note: Justice Scalia and his interrogator, Bryan Garner, are collaborating on a book on effective advocacy: Making Your Case.
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On Monday, Treasury Secretary Hank Paulson unveiled the Bush administration's "Blueprint for Stronger Regulatory Structure," its latest response to the sub-prime mortgage crisis and severe case of influenza affecting America's financial markets. No surprise, the plan calls for some fairly sweeping changes in the way the SEC, Federal Reserve, and other agencies regulate America's financial markets. According to the Post:
. . . Treasury Secretary Henry M. Paulson Jr. said he also plans to ask Congress this year to set up a new agency to oversee mortgage lending and take action to enhance his department's role as the chief regulator of financial markets.
The Treasury's initiatives seek to sweep away the current patchwork of regulation over the coming decade in favor of three more powerful agencies to oversee banking, market stability, and consumer and investor protection. The plan's authors have argued that such changes are needed because government oversight has not kept up with the pace of financial innovation.
Paulson acknowledged that the recommendations would not prevent future crises but said that they would make government more nimble in addressing them. "We should and can have a structure that is designed for the world we live in," he said in a speech at the Treasury.
Uh huh. So, let me make sure I have this right. The administration embraced deregulation and free market theory as if it were handed down from Mt. Sinai. It then sat idly by while the sub-prime mortgage market imploded, and watched as that market's failure trickled up into other sectors of the economy. All the while, this admistration spent taxpayer money like a drunken sailor (to use Sen. John McCain's memorable phrase), running up the federal debt and mortgaging our grandchildren's future. And the administration pursued wars in Iraq and Afghanistan likely to cost the country $3 trillion. And now, they want the people trust the Bush administraiton by giving it more power over the American economy?
Wall Street, meet the unitary executive. Another day, another crisis, another power grab.
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DealBreaker offers possible reasons underlying disparate reactions to the Treasury Department's well-publicized new reorganization proposal.
Pure conjecture? Surely. But entertaining conjecture nonetheless.
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When law firms institute family-friendly policies (flex hours, reasonable work loads), who benefits? That depends how you measure it. Mothers at these firms are neither more nor less productive than mothers at other firms, as measured by billable hours, according to a new study of 670 lawyers in Alberta, Canada, by sociologists Jean Wallace and Marisa Young. But fathers at family-friendly firms are less productive than fathers at old-style firms. At the same time, fathers with help at home, like stay-at-home wives and weekly cleaning services, increase their productivity at work, whereas women with stay-at-home husbands and cleaning aren't more productive.
What's going on here? Wallace and Young argue that fathers tend to consider breadwinning an all-important family contribution, so when they have more help at home, they respond by working harder. Also, men are far more likely to have a stay-at-home spouses than women are. Women, on the other hand, seem to sink more time into their kids, if they have it.
The happy spin from the authors is that the family-friendly policies aren't hurting the firms vis-à-vis their women employees, which makes the policies seem less costly. (Their original hypotheis was that the family-friendly firms would find that mothers were less productive, since these policies are often seen as the path to mommy tracking.) The finding about the men working less, though, throws a wrench into the discussion, doesn't it? Mothers are soldiering on for the firm, in gratitude for the break from crazy expectations or for whatever reason. Men are not. The authors ask, "How are men using their free time as a result of working fewer hours?" and then cite other evidence that men may plow their time into more leisure activities. Is that perfectly understandable, or is it shirking? Who's modeling the good behavior here?Given how hard law-firm lawyers often work, are fewer billable hours, whatever the equities, a reason to celebrate? It's hard to tell, but the gender split is there to be mulled over.
Over at Legal Blog Watch, Carolyn Elefant argues that billable hours are a bad measure of productivity. That makes sense to me as a reason that this study may not translate to other professions in which parents can argue they work more efficiently, squeezing more work into less time. But it doesn't seem like a salient criticism of these findings, since hours are firms' explicit measure of productivity.
I posted a version of this earlier over at XX factor, and now I'm curious about the reception to these findings in this neck of the woods.
Read more about the billable hour and family-friendly practices on Convictions, and a discussion on the same topic at our women's blog, XX Factor.
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The new issue of the Legal Times ($) includes several Washington law offices' explanations of their respective efforts to "go green." The firms' solutions are laudable if, often, commonplace: more recycled paper and double-sided printing, shifting communications from hard copy to electronic copy; energy-optimized computers; even encouraging "voluntary 'green pledge[s]'" from attorneys and staff.
Still, when it comes to going green, large law firms are at a distinct disadvantage to new solo practices. While most large law firms, by tradition or force of habit, rely on endless volumes of paper records and archives, tech-savvy solo practices may well go virtually paperless.
Of the many competitive advantages that large law firms boast over their solo counterparts, going green almost surely is not one of them. Getting a "biglaw" firm going as green as these solo shops strikes me as something akin to teaching an elephant to dance -- possible, but requiring a fanatical degree of commitment.
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In his new book, Eric Lichtblau accuses Rep. Jane Harman of having supported the NSA wiretapping program until it was revealed, and then hypocritically opposing it thereafter. In defense, Harman gives this story, which sounds plausible:
1. She and seven other members of Congress were told the basic outlines of the program.
2. They were instructed that they could not tell anyone else -- including their staffs and other members of Congress.
3. They were assured by the Administration that the program "complied with the law and that the senior-most officials in
the Justice Department conducted a full legal review every 45-60 days."
4. "The Gang of Eight was not told – nor did it occur to me – that the
Administration was violating FISA, despite Congress’ clear legislative
intent when FISA was passed that it was the 'exclusive means' for
monitoring the communications of Americans connected to foreign
intelligence."
5. When the New York Times broke the story, Harman "was finally free to consult constitutional experts on the legal issues
it raised. My call to a former CIA general counsel that Saturday
provided the first inkling that the program was in not compliance with
FISA but was conducted pursuant to claims of 'inherent' executive
power. To this day, I have not been shown the memoranda produced by the
Office of Legal Counsel to support the basis for the program!"
6. Once she learned that the program was a violation of FISA, she opposed it.
This is basically the exact, same sequence of events that occurred when Harman learned of the CIA interrogation program: The problem is systemic. (Really, the parallels are uncanny. Go back and read that post.)
Actually, there are at least two very basic, huge problems here:
First, Harman and the other seven members of the Gang of Eight themselves are not only far, far too cozy with the intelligence community they are overseeing, and far too credulous of what they are told (even after repeated incidents such as this one), but, more to the point, they know far, far less about the law they are overseeing than do the officials in the Executive branch who are implementing those laws. As soon as the NSA program was publicly revealed, literally hundreds (if not more) lawyers and others realized that its legality was highly questionable -- and we all presumably had far less knowledge of the details than Harman did. But for some reason, it did not even occur to Harman that the program described to her might be legally tenuous. She took DOJ's word for it.
Second, and more importantly, even if Harman had had doubts about the legality of the program, what could she have done about it? She couldn't speak to her staff, to her colleagues, or to anyone else well-versed in FISA or the law generally. If she had insisted on seeing the OLC memoranda -- which she certainly should have done -- what could she have done when the Administration refused to provide them (as it has continued to do to this day)? If she had told her staff and colleagues, the Administration would have ceased to brief her on classified matters (notwithstanding that that would be unlawful) -- and then the whole point of the oversight enterprise would have been defeated.
As I've previously written, t
Continue reading at Balkinization . .
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Paying due respect to John Adams, Esq., the founder now coming to life in a teleseries, Adam rues the absence today of more than a "lucky few" capable of "deep political, philosophical, and legal argument." An HBO subscription's outside my monthly budget; nonetheless, I've listened to the David McCullough book on which the series is based, to the Ron Chernow work on Alexander Hamilton that Adam also cites, to a work on Thomas Jefferson, on whom Orin chimes in, and to a number of other founders' biographies. Thus I add to their thoughts my own "modest contribution."
It's an understatement to say that the achievements of these fellows were awe-some, in the deep meaning of that word. In so doing, however, we ought not to discount our generation of attorneys. Many of us came to law school broadly schooled in the arts and sciences of human endeavors like politics, literature, logic, biology. Perhaps it is only a lucky few of us who've studied Latin, as the founders typically did. (I thank my father for my own good luck in that regard.) But many of us have far more than a passing acquaintance with still-spoken languages other than English -- and that is more, McCullough's book revealed, than Tout Paris would've said of John Adams or, for that matter, of Ben Franklin.
So why the dearth of depth in legal argument and practice?
Surely some blame may be cast on contemporary legal culture. 1st, there's the way that we learn and practice. Endeavoring to extract precise "holdings," law today tends not to privilege deep thoughts that may lie in the text, subtext, or context of prolix judgments. That, in turn, tends to give little cause for consulting any dog-eared schoolbook we might've carted with us from one move to another. 2d, as Adam notes, there's the time that we're expected to devote to this narrower-scoped legal practice. Electronic gadgets have made our work truly 24/7. It's hard to keep up on Aeschylus -- check out Robert F. Kennedy's off-the-cuff quote of that ancient Greek the night that Martin Luther King Jr. was killed -- when the BlackBerry's beeping.
But let's not forget some important caveats. 1st, Adams, Hamilton et al. were the "lucky few" of their times; far more early Americans lived out lives of far less achievement. 2d, many of these men owed to others their leisure to think as well as act, to pen prose even as they practiced law. John Adams owed much to Abigail Adams, who, McCullough wrote, well managed the farm and household in Braintree in order that her husband might focus his energies elsewhere; in turn, all the Adamses owed much to domestic servants. Abigail's father kept slaves, and of course slaves were forced laborers on the lands of many other founders. Theirs was an economic arrangement this country did well to abandon.
Even as we hold our founders' achievements in awe, then, we must remember their full, complex, and not always laudable stories. And we should not sell ourselves short. Sure, we should make more use of our own breadth and depth of knowledge. At the same time, we should take much comfort in the rich diversity, in class, sex, age, ancestry, and experience, of all of us who today think about, write on, and practice the law.
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continue reading at Balkinization . . .
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In this bloggingheads.tv episode involving my co-bloggers Dahlia Lithwick and Richard Ford (I checked it out because I wanted to confirm that they have corporeal existences and are not merely algorithms invented by Slate's IT staff), Dahlia accuses the Bush administration of hypocrisy for claiming, in the Omar and Munaf case, to be concerned about respecting the sovereignty of foreign countries. The Bush administration, after all, did not care so much about the sovereignty of Iraq as to refrain from invading that country. Iraq aside, is it hypocrisy for a nation to profess respect for international law but then to violate international law whenever doing so is in its self-interest, when all other nations are doing the same thing?
Hypocrisy is something more than dishonesty: not all liars are hypocrites. It seems to have more to do with lying about one's character. A hypocrite holds himself out to be sincere, courageous, respectful, honorable, and in all other respects virtuous, when he or she is none of those things. However, often hypocrisy is a socially necessary trait, and we frequently observe groups of people profess respect for norms, ideals, or aspirations that no one obeys. In such cases, you will often find a few individuals who refuse to go along with the game and pronounce themselves outraged that people are not acting consistently with their words. We need a new word to describe these critics-people who confuse ordinary hypocrisy (which is bad) and social hypocrisy (which is necessary and unavoidable), and accuse everyone of hypocrisy because they act like human beings. Let me propose a new word for this trait: literocrisy. The literocrite condemns people for uttering social lies that no one believes.
When Captain Renault, says "I'm shocked, shocked to find that gambling is going on in here!", he's not being a hypocrite, he is satirizing the literocrite. When everyone understands that gambling is going on, even though everyone professes not to believe that gambling is going on, only the literocrite is outraged. The literocrite believes that people should always be candid about their motives, even when there are good social or political reasons not to be.
Governments understand that they cannot always act consistently with public opinion, in their own countries and elsewhere. And so governments rarely give candid explanations for their actions. This is driven by political necessity: if your support is derived from a coalition of diverse groups, you want each group within the coalition to believe, as long as possible, that the government serves their interests. And so when the groups' interests converge in favor of a particular policy, but are based on different ideological commitments, the government wants to act consistently with the overlapping interest without risking controversy by taking a position on which of the ideological commitments it cares about--hoping to put that off till a later day when no such ambiguity remains possible. When critics detect inconsistencies between the words and the behavior of governments, one can imagine the government officials saying to each other: "What literocrites! Do they really believe that a functioning government can always be honest about its motivations?" And, indeed, because some journalists are not literocrites, but understand exactly what is going on, while realizing that there is good copy in pointing out government hypocrisy, we should recognize that these literocrites are also hypocrites-professing to be literocritic when they really are not.
To be sure, some people are fooled by these governmental statements. The hard case arises when insiders understand the lie and outsiders do not, but most observers would agree that the lie is socially necessary and probably harmless. Here, there is a narrow line between literocrisy and mere truth-telling.
One of the great sources of literocritic confusion is the law. Law professors (or most of them) have believed since the legal realist movement of the 1920s, that when judges decide cases according to the "law," they are in fact smuggling in personal and political biases, whether they know it or not. Judges virtually never admit that this occurs. Many judges may not believe it, statistical evidence notwithstanding; others probably believe that admitting that their biases might influence their decisionmaking would weaken the legitimacy of the courts, even though bias is unavoidable and there is no realistic solution to the problem, and even though most (?) people suspect that judges have biases. When journalists detect biases in judicial opinions, and express outrage, and accuse the judges of hypocrisy, they sound like literocrites to jaded law professors like me and Jack-who says that he was not "shocked, shocked" to hear from Dahlia that Supreme Court justices' political biases were on display during oral argument.
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Courage, Orin! Your question was a good one and Jack did not answer it. He draws an artificial distinction between questions of constitutional legitimacy ("Rather, living constitutionalism is primarily a theory about the legitimacy of the constitutional system taken as a whole: how and why constitutional doctrine changes in a way that preserves its legitimacy over time.") and questions about how justices should decide cases. He insists the questions are separate, but they are not--at least, not if the justices care about the legitimacy of the constitutional system, as they most certainly do. Here's Justice O'Connor (Planned Parenthood v. Casey), who even uses the word "legitimacy" over and over again.
The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States, and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money, and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means, and to declare what it demands.
The underlying substance of this legitimacy is of course the warrant for the Court's decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court's opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is [505 U.S. 833, 866] obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.
... However upsetting it may be to those most directly affected when one judicially derived rule replaces another, the country can accept some correction of error without necessarily questioning the legitimacy of the Court.
... That first circumstance can be described as hypothetical; the second is to the point here and now. Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its [505 U.S. 833, 867] decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.
... So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question. ...
... It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes. Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.
Jack himself has subterranean doubts about this distinction, which keep bubbling to the surface. "Giving advice to judges is not really the goal of the theory." "It is probably best not understood as a theory advising judges...." "It may not be advice directed to individual judges, or, if it is, it must be far more than that." It might not be intended as advice, but Jack's theory certainly has implications for judicial decisionmaking--not necessarily that justices should do the politics of the president that appoints them, but that they should do whatever is necessary to maintain the legitimacy of the system. Why he denies, or may deny this, I don't understand, either. And if the implications are odd or don't seem right, that will cast doubt on the theory, even though the theory itself is intended to answer an entirely different question, and even if Jack himself is not interested in the judicial advice question.
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Eric Lichtblau, in an excerpt
from his forthcoming book, confirms that the NSA wiretapping program
was operated beneath an unprecedented and remarkable veil of secrecy.
He confirms Jack Goldsmith's earlier testimony
that the Deputy Attorneys General (Larry Thompson and then Jim Comey)
were not permitted to be read into the program and, more astonishingly
still, that the lawyers at the NSA itself were not permitted to see the
John Yoo-penned legal opinions that provided the basis for the program
the NSA was operating! (I can't even imagine what those meetings looked
like: "No, really -- you guys do
have the legal authority to secretly violate FISA; but we can't show
you the legal theory why that's the case. Just trust us." And the NSA
responded: "Oh, in that case, ok, we'll get right on it." Huh?)
The
story also appears to confirm that the original Yoo legal theory was in
effect that the President could disregard any laws he wished in
deciding how to surveille al Qaeda. How often have we heard this?: "[Yoo's Opinion] was revised in 2004 by a new cast of senior lawyers at the Justice Department, who found the earlier opinion incomplete and somewhat shoddy, leaving out important case law on presidential powers."
I
don't think there's much more to be said about this that many of us
have not already said multiple times over -- except that it remains
scandalous that the Congress would even consider the Administration's
requests for new legislation until the Administration has made public
the entire set of OLC opinions on this issue and interrogation
techniques, etc. (redacted, of course, to protect secret NSA
technological capabilities). Congress has quite a bit of leverage here;
they simply seem unwilling to use it.