American Bar Association

Landmark Trials

Jim Landman — Fri, 20 Jun 2008 17:33:00 GMT

I'm writing this blog from Washington, DC, where our Division will be hosting a summer teacher institute with the Federal Judicial Center. Now in its third year, the "Federal Trials and Great Debates in U.S. History" summer institute engages teachers in study of landmark trials from the lower federal courts. This year's cases include the Aaron Burr treason trial, In re Debs and the Pullman Strike, and the Chicago Seven conspiracy trial.

The institute has become one of the highlights of our year. It's gratifying to work with teachers who are so dedicated to their profession, and to watch the historians and federal judges who join us throughout the institute embrace the opportunity to interact with the teachers. Both academia and the judiciary are perceived as somewhat cloistered professions, but our experiences with the institute have demonstrated that few things are more pleasing to a professor or a judge than the chance to discuss his or her work with others.

Our colleagues at the Federal Judicial Center have over the past few years produced a fantastic set of resources for anyone interested in learning more about how the federal courts have helped to shape some of our most significant national debates. In addition to the three cases we will be studying this year, the FJC has prepared histories of the Sedition Act trials from the early years of our republic, the Amistad trial's challenge to slavery, Ex parte Merryman and Civil War suspensions of habeas corpus, the trial of Susan B. Anthony for voting in a federal election, Chew Heong and the Chinese Exclusion Acts, and Bush v. Orleans Parish , one of the first efforts to enforce the mandate of Brown v. Board of Education. All these units are available for free download from the FJC's website. Simply follow the links to "Federal Judicial History" and "Teaching Judicial History: Notable Federal Trials."

This will be the Division's final post, as the Talking Justice blog prepares to go offline at the end of this month. It has been a pleasure speaking with you on this site. Although we won't be appearing here anymore, you can find always find us at www.abanet.org/publiced. We look forward to hearing from you.

Now That’s Intelligent Design: A Well-Drafted Statute Combats Child Pornography

Chuck Williams — Thu, 22 May 2008 02:43:00 GMT

In United States v. Williams, a solid majority of the Court found that key provisions of the unfortunately named “Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003” are a model of clarity when compared to past federal efforts to stop the proliferation of child pornography on the Internet.

Unlike Congress’s previous attempts (including the ill-fated federal Child Pornography Prevention Act of 1996), the 2003 Act only prohibits offers to provide and requests to obtain child pornography. Under the Act (which we could refer to by its belabored acronym, “PROTECT,” but let’s not), anyone who deliberately tries to get someone else to believe that he is offering to provide child pornography (regardless of whether his purported child pornography is real or fake, and regardless of whether he is seeking compensation for it) is subject to a mandatory five years in prison. Likewise, anyone who intentionally tries to solicit child pornography is also liable to spend five years in prison.

But what is child pornography, one might ask. Isn’t it impossible to ban such a thing without inadvertently convicting an innocent grandmother who merely emails grandpa what she thinks is a cute picture of her grandson at bath time? And wouldn’t such a law inevitably end up criminalizing even mainstream Hollywood movies such as “Lolita” and “Titanic”?

In a word, the Supreme Court ruled May 19, no.

First, the statute goes to heroic lengths to define in clarifying detail the various types of “sexually explicit conduct” with which it is concerned. Secondly, as Justice Scalia noted in his opinion for the Court’s 7-2 majority, to run afoul of the Act the portrayal of child sex “must cause a reasonable viewer to believe that the actors actually engaged in that conduct on camera.” In other words, it is not enough that such sex is suggested – it must be explicitly portrayed.

Moreover, the Act does not punish either offers to provide or requests to receive pictures of youthful-looking adults posing as children, nor does it ban offers to provide or requests to receive “virtual” child pornography that features computer-generated images of children. “A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children.”

The Eleventh Circuit, which the Supreme Court has now reversed, worried that the Act is unconstitutionally vague because instances can be imagined in which it might be difficult to know what the defendant’s true belief or intent was. But as Justice Scalia explains, “the problem that poses is addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.”

Time will tell, but I think we will find that neither naïve grandparents nor worldly Hollywood producers have anything to fear from this law. I’m also betting that some of the most flagrant child pornography rings will at long last be shut down -- and that the Internet will be a better place without them.

What Would Emile Say?

Judy H. Kim — Tue, 22 Apr 2008 04:01:00 GMT

I’ve been talking back to my television and radio a lot these days. Truth be told, I’ve been yelling at my television and radio a lot these days. My frustration level has risen and my tolerance level is spiraling downward. As the primaries drag on, much of the information provided about the candidates is so inane, I am forced to respond vituperatively to an inanimate object. In examining my visceral reaction, I’ve come to realize that it’s the ridiculous type and quality of information to which I am reacting. I worry that people are coming to a decision about a candidate for president based on the blathering of talk radio and the absurd coverage of the news.

Some of the most recent campaign reports have been on Obama’s bowling and basketball. Why are we doing this? I reviewed several blogs to investigate the whys and wherefores from the points of view of the bloggers. Several critics assert that the reason the bowling has received so much attention is because Obama’s ineptitude in the bowling alley indicates that he is out of touch with everyday people, and, if he is out of touch with everyday people, he cannot be a president “of” the people. This is an interesting argument, but one that made me review past presidents. How many presidents were good bowlers? And is bowling a measure of a candidate in touch with the people? Should we start scouring the bowling lanes for those who score 300 to run for president?

With a background in educational sociology, I believe there’s more to this (I have to believe there’s more to this). Emile Durkheim, father of sociology, in his numerous works (On Morality and Society, Division of Labor in Society, Rules of the Sociological Method, Suicide) provides a scientific explanation of society and its development. He asserts that society is not a particular, discrete entity that comes to being at one moment. Rather, society develops and evolves through sociological phenomena, influenced and affected by historical occurrences and rises to, fits, and is satisfied by the functions and needs of conditions at that time.

Our actions, exploits, and behavior are defined as social facts, which are functional realities that have been inculcated in us through our history. The problem in the U.S. is that our history is so comparatively short and our history has changed so radically in this short time that our social facts are evolving and have not yet gelled. It was not until 1865 that slavery was abolished. In 1870, the 15^th Amendment was ratified, which granted male citizens the right to vote, free from discrimination based on race, color, or status based on previous years of slavery. However, from 1870 to 1965, violent and manipulative acts, as well as legal restrictions such as the poll tax, effectively prevented Black citizens from voting. For almost a century, the violence and manipulation occurred systematically, persistently, and relentlessly. In 1965, a mere 43 years ago, Congress passed the Voting Rights Act, after which participation by African Americans in voting increased significantly.

Based on Durkheim’s definition of social fact, a few decades is an insufficient measure of time to establish a historical basis to ensure a functional reality of Americans prepared to embrace equal representation by race or gender. So when people, Democrats or Republicans, Liberals or Conservatives, try to make claims to our “colorblind” society and pat ourselves on the back for such non-discriminatory thought and action, the collision of the sociological phenomena in the U.S. and the current normative beliefs result in a foolish focus on Obama’s dismal bowling score that is contrasted by his prowess in basketball and Clinton’s cackle vs. a feminine melodious symphony of muted mirth.

Why do we not judge John McCain’s decision to divorce his first wife who suffered through his imprisonment in Vietnam to await his return to be thrown aside for a younger (and richer) woman? Because that phenomenon is part of the social fact in our culture. Why do we not read the Obama bowling story as one that celebrates his enjoyment of the moment, cool calm in the face of gutter after gutter, persistence (and eventual improvement) in continuing to bowl frame after frame? Because that phenomenon is not part of the social fact in our culture.

As an advanced society, I believe it behooves us to move beyond this stagnant historical analysis – and quickly. In other countries and other cultures, a variety of men of color and women lead their nations. This torpid insistence on narrowly viewing people based on outdated stereotypes is counter to our ideals and, aside from that, is downright embarrassing. This country is founded on the belief that we are all created equal. We need to make the ideals on which this country was built into a social fact. This is an on-going process. If we need to begin somewhere it should be in the 2008 presidential elections. In as important a decision as it is to elect a president of the United States, let’s move from the trifling nonsense to the established political records, foundations of truth, and belief systems of the candidates.

The views expressed (in this report) have not been approved by ABA’s policy-making House of Delegates or Board of Governors, and, accordingly, should not be construed as representing the policy of the American Bar Association.

Happy Anniversary, No Vehicles in the Park

Howard Kaplan — Fri, 21 Mar 2008 22:00:00 GMT

Last April, I wrote about the now imminent (May 2008) 50^th anniversary of Law Day. At the American Bar Association, we’ve produced a planning guide, among other resources, to help bar associations, courts, schools and others conduct programs for Law Day. Appropriately, this year’s Law Day theme is “The Rule of Law: Foundation for Communities of Opportunity and Equity.” Among the resources included in the planning guide is a classroom lesson called “No Vehicles in the Park.” As it turns out, “No Vehicles” has quite an interesting history – and, in effect, is also celebrating its golden anniversary this year.

“No Vehicles” is the quintessential, if not archetypal, classroom lesson of K-12 law-related education (LRE). For years, it’s been used by many practitioners—at all grade levels—as an introduction to law. Dating to the 1960s, “LRE” refers to a form of civic education that, obviously, focuses substantively on law, legal issues, and legal institutions. Emanating from 1960s and 1970s-era “new social studies,” LRE also places a high pedagogical value on teaching law through case studies, role playing and other interactive methods that seek to engage students experientially.

Consider this scenario: “The city of Beautifica has established a large, lovely park in the city.” Following a city ordinance, signs are posted at park entrances that read: “No Vehicles in the Park.” Students are instructed to form small groups and role play as judges asked to interpret this law in relation to various hypothetical fact-situations – children wishing to ride bicycles in the park, a woman with a baby in a baby carriage, police cars chasing suspected bank robbers, and a veterans group wishing to place a tank next to a war monument. Obviously, the activity is a way to explore questions of interpreting legal language, differences between the letter and spirit of the law, and what’s involved in writing commonly understood ordinances – or the consequences of not doing so. Participants can also be asked to draft a better “no vehicles in the park” ordinance.

I first learned of this classroom lesson more than 20 years ago. I loved its simplicity, but evident richness as a vehicle for learning about the fundamentals of law (sorry for the pun). From what I have been able to glean, its origins as a classroom lesson or “instructional activity” are murky at best. It likely dates to the early 1970s, if not before. It remains a mainstay of law-related education.

About 12 years ago I read H.L.A Hart’s The Concept of Law for the first time. Professor of jurisprudence at Oxford, Hart wrote this book in 1961 – it’s still regarded as one of the most important texts in twentieth century legal philosophy. While reading chapter 7 (“Formalism and Rule-Scepticism”), I was immediately struck by the discussion of a hypothetical involving vehicles in the park. Digging a bit deeper, I discovered the real origins of the law-related classroom lesson, which could be traced directly to Hart. In 1958—exactly fifty years ago—Hart published an article in the Harvard Law Review, “Positivism and the Separation of Law and Morals.” In the same issue was “A Reply to Professor Hart” by Harvard law professor Lon Fuller.

At issue, in what is still considered one of the most notable debates in Anglo-American legal philosophy, was a fundamental dispute between the two regarding whether law is inherently “moral” or otherwise fundamentally connected to ethics. As a legal positivist, Hart argued that law, which he saw as a system of social rules, and morals must be kept analytically distinct. This was not to say that moral considerations couldn’t be brought to bear on legal cases, but they would necessarily be extralegal. In short, law as it ought to be and law as it is were separate matters for consideration. In contrast, Fuller, a proponent of natural law, argued that there was a form of morality internal to (the rule of) law. The title of his principal work on this subject, written in 1964: suggests his philosophical position: The Morality of Law. For both Hart and Fuller, the then not-so-distant experience of the Nazi legal regime in World War II (evidently immoral, but lawful?) informed their efforts to grapple with the relationship between law and morality. All this is background for the particular disagreement that arose between Hart and Fuller over “No Vehicles in the Park.”

Here’s how Hart introduces what Harvard professor Frederick Schauer recently termed “the most famous hypothetical in the common law world”:

“A legal rule forbids you to take a vehicle into a public park. Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about airplanes? Are these, as we say, to be called “vehicles” for the purpose of the rule or not?”

[An airplane? Interestingly, Schauer (“A Critical Guide to Vehicles in the Park,” presented at February 2008 NYU Law School Hart-Fuller Debate Conference) believes Hart likely took inspiration for the hypothetical from McBoyle v. United States 283 U.S. 25 (1931): Did transporting a stolen airplane from Illinois to Oklahoma violate the National Motor Vehicle Theft Act? The Court held “no,” as the statute did not specify “airplanes” among vehicles covered.]

Hart believed that certain legal rules were commonly understood (constituting a “core”) while others, at the edges, were less so (he used the term “penumbra” to describe this). Hence, while we might disagree as to whether “roller skates” are subsumed under the general term “vehicle,” we could agree, as a matter of consensus, that “plainly” an automobile is indeed a vehicle.

Animating the debate, Lon Fuller offered a challenging counter-example: what if a group of patriotic citizens wanted to mount a working World War II truck—an automobile, plainly—on a pedestal in the park as a war memorial? Would this be a vehicle? It seems to fit a basic definition—functioning, self-propelled on wheels, used to move people or objects. Would this violate the statute prohibiting vehicles in the park? Fuller goes on to argue that it’s not sufficient to simply interpret the meaning of particular words (“vehicle”) – what’s needed is an understanding of the purpose of the law. This purposiveness, ultimately, depends upon an understanding of the morality of law.

In the field of legal philosophy, the Hart-Fuller “no vehicles in the park” hypothetical, continues, 50 years forward, as a significant reference point for discussion. University of Colorado constitutional law professor Pierre Schlag had this to say about it: “Over the years, [“No Vehicles”] has become a nearly irresistible hypothetical. Generations of Anglo-American legal thinkers have cut their interpretive teeth on this hypothetical – striving to advance or defend all sorts of insights about law, interpretation, and adjudication. You can easily imagine how this might happen. It builds on itself. There are the myriad factual variations on the hypothetical.” (No Vehicles in the Park,” SeattleUniversity Law Review, 1999)

The many “factual variations” of the basic hypothetical, of course, relate to particular forms and uses of “vehicles.” This is exactly how the law-related classroom lesson that takes place in “Beautifica” is structured. Fuller’s military truck/war memorial is always one of the examples. Considering different fact situations is what makes the activity fun and engaging, but also can’t help but evoke thought-provoking issues, even such fundamental ones as “what are rules in law?,” “what is judging?” and “what is the purpose of law?” “No Vehicles”—whether debated in the legal academy or role played in classrooms with young students—is a “seemingly simple example” (Frederick Schauer) that can become much more. This is what makes it a classic.

As a classic, there are enduring issues to consider, but there’s also always the potential to find new meanings and understandings. For instance, the classroom lesson focuses on the legal question of “What is a vehicle?” There’s another question to consider: “What is a park?”

To back up a bit, some forms of the “No Vehicles” classroom lesson offer definitions of “vehicle.” What this gains in guidance for students, it loses in subtlety and depth of learning, since how we define a vehicle, legally and otherwise, is at the heart of the hypothetical. Similarly, all forms of the lesson implicitly define a park. They take place in “Beautifica” (with its aesthetic aura) and offer a “background” that sets out this value-laden goal: the city park is “to preserve elements of nature” and provide “grass, trees, flowers and solitude.”

We know, however, that “parks” have both developed historically and, depending on the cultural context, assumed varying forms and fulfilled different purposes. Do war memorials belong in parks? What distinguishes public from private parks? People have different visions about what parks are and what they should be. We don’t have to go back in time or somewhere else in place to find an example of contested visions – consider the contemporary American controversy about the use of snowmobiles in Yellowstone National – vehicles in the park, indeed.

In Anatomy of the Law (1968), Lon Fuller himself took the “no vehicles” hypothetical to the cultural-historical context of the park: “The proper interpretation of the ordinance will depend on the meaning attributed to the institution ‘park’ by the practices and attitudes of the society in question.” (quoted by Steven Winter, “An Upside/Down View of the Counter-Majoritarian Difficulty,” Texas Law Review, 1991)

As we mark its fiftieth anniversary, “No Vehicles in the Park” has had a rich life and should have many happy returns. So far, however, its intellectual life has been a bit schizo, with paths diverging. Consider this perception offered by law professor Pierre Schlag: “Outside the precincts of the legal academy, it is hard to find anybody who cares much about the meaning of an ordinance that reads ‘No vehicles in the park.’” He is evidently unaware of the longstanding use of “No Vehicles” in K-12 law-related education.

To be fair, the disconnect between the legal academy and K-12 law-related education works both ways. Law-related educators apparently have no understanding or appreciation of the origins of “No Vehicles” as a classroom lesson in the 50-year-old, but enduring, Hart-Fuller debate.

In the 1960s and 1970s, law-related education benefited from the contributions of legal academics – such as Harvard constitutional law professor Paul Freund – to help conceptualize, substantively and pedagogically – what law-related civic education as a field of K-12 study should be.

I often feel, however, that law-related education is transfixed in an intellectual timewarp. Where are today’s Paul Freunds? Is there not an ongoing need to conceptualize anew the foundations and values of law-related education, to serve changing understandings and adapt to new conditions and knowledge? For example, how can we make law-related education more open and connected to issues of history, culture, and language? Sometimes we should go back to go forward. Rediscovering the classic legal philosophical roots of “No Vehicles” represents perhaps one small step towards such a new direction.

The views expressed in this posting are those of the author and have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association.

Across the Divide

Jim Landman — Thu, 21 Feb 2008 15:47:00 GMT

I’ve just finished reading Orhan Pamuk’s 2005 novel, Snow, which, among other things, takes up the controversy in Turkey over a national ban on the wearing of head scarves by women at universities. By chance, my reading of the novel has coincided with the decision of Turkey’s Parliament to repeal the head scarf ban. It has been interesting to see the cultural divides explored in the novel—between the secular and the religious, the cosmopolitan and the provincial, “progressives” and “conservatives,” the elite and the underclass—reflected in newspaper accounts of reactions among Turkish citizens to the Parliament’s decision.

Next month, the Supreme Court will be wading into one of our nation’s deepest cultural divides, which runs through the Second Amendment’s right “to keep and bear arms.” Head scarves and firearms might seem like apples and oranges, but the cultural divides that commentators have perceived along the head scarf issue in Turkey are remarkably similar to cultural divides that are perceived along the firearms issue in the United States: urban against rural, progressive against conservative, “elites” against “ordinary folk.”

In reality, cultural divides are often more shallow, and easier to cross, than they first appear. An article in Tuesday’s New York Times (February 19, 2008) about Turkey’s repeal of the head scarf ban was provocatively titled “In Turkey, Is Tension About Religion? Class Rivalry? Or Both?” “Neither” was not an option, but the article suggested that for many Turks, the head scarf ban was much ado about nothing. The strongest reaction to the ban, the article noted, seemed to come from older Turks, while “a sizable portion of Turkey’s secular society is uncomfortable limiting liberties, including wearing head scarves. . . .” A 20-year-old university student quoted at the end of the article noted that "I have many friends who wear the head scarf. . . . I enjoy their friendship. They're clever, smart women. Not like what people say: Unscientific and only interested in religion."

I suspect that the divide over guns may also be shallower than we are led to believe. An op-ed in last week’s Miami Herald (February 13, 2008) argues that the problem with the gun law debate “is that it has always been defined by its most extreme voices, its most uncompromising, ideologically pure voices.” Polling data supports the argument that, between ideological extremes, a fairly broad consensus on gun laws exists. While many Americans support stricter gun laws, including limits on assault weapons, those who would support an outright ban on handguns are in the minority. The lack of support for an outright ban on handguns goes straight to the heart of the issue in next month’s Supreme Court case, which will examine a District of Columbia law that severely restricts the right of individuals to keep guns for self-defense. Statistics may show that you are safer with a dog in the house than a gun, but many people are uncomfortable with having the government make that choice for them, and they certainly can find some support in the Second Amendment for the argument that the government can not completely take that choice away.

For better or worse, guns are part of the fabric of our society, and the ways in which guns inform the cultural identity of many Americans go beyond the concerns of self-defense. I grew up in a small community in rural Minnesota where hunting was a way of life. Like many kids my age, I had my first gun (a .22 rifle) before I left elementary school and graduated to .410 and 12 gauge shotguns in junior high and high school. But there was never a sense that having guns was a “pure” right. Minnesota law, for example, required that juveniles seeking a hunting license first complete gun safety training, a reasonable balance between a right and a responsibility. I don’t own a gun today (hunting opportunities are limited in suburban Chicago, and I prefer the companionship of a dog when it comes to self-defense). I recognize, however, that there are many reasonable, responsible people who do own guns, for a variety of reasons. They view gun ownership as their right, but it is a right they take seriously. It seems that we all could find much common ground where rights and responsibilities come together.

Mid-Term at the Supreme Court

Chuck Williams — Tue, 22 Jan 2008 05:30:00 GMT

Your (possible) Second Amendment right to “bear arms,” your Eighth Amendment right to be free from cruel and unusual punishment, your Sixth Amendment right to confront the witnesses against you … Interesting issues all, and all are embodied in unusual cases still awaiting the Supreme Court’s review this term.

The Court hasn't heard a pure Second Amendment case since 1939 when the justices unanimously ruled that the Constitution did not bar Congress from requiring the registration of sawed-off shotguns. Nearly 70 years later, the District of Columbia’s counsel has asserted at oral argument in the U.S. court of appeals that it would be constitutional for the District to ban all firearms outright. The question actually before the Supreme Court is narrower, however: whether the Second Amendment forbids the District of Columbia from banning the private possession of “handguns” while still allowing possession of rifles and shotguns.

While proponents both for and against a constitutional right to own handguns often contend that the language of the Second Amendment “plainly” supports their opposing interpretations, it is in fact one of the more puzzling and awkward sentences in the Bill of Rights: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." So is the reference to a well-regulated militia meant to limit this constitutional right to only members of official state militias or the modern National Guard? Or was that prefatory, “militia clause” not a limitation at all but simply the identification of a civic purpose behind the Amendment’s protection of the right of individuals – “the people” -- to keep firearms for their own self-defense or other private use?

The case, District of Columbia v. Heller, Docket No. 07-290, had not been scheduled for oral arguments as of this writing, but it is likely to be heard in March and decided in June -- in plenty of time to play a role in the 2008 presidential campaign.

Meanwhile, the Eighth Amendment case, Baze v. Rees, Docket No. 07-5439, was argued January 7 but has not yet been decided. A civil rights challenge, this litigation is providing the justices and interested members of the public with a sometimes astonishing behind-the-scenes look at the current state of the executioner’s art.

The attorneys for the two Kentucky death-row inmates in this case contend that the Eighth Amendment bans the lethal injection methods being practiced in Kentucky because those methods pose a greater risk of causing pain and suffering than other possible methods of killing prisoners with lethal injections. Kentucky’s executioners currently use three drugs to kill their subjects: first a short-acting barbiturate (thiopental) designed to render the prisoner unconscious; then a neuromuscular blocking agent or paralytic (pancuronium bromide); and lastly a third drug designed to cause cardiac arrest (potassium chloride). The prisoners in this case are concerned that any of several possible errors in the administration of the first barbiturate could render their execution extremely painful, although (because of the paralyzing effect of the second drug) they wouldn’t be able to express that pain. For its part the state contends that the Constitution does not require it to eliminate all “unnecessary risk” of pain and suffering, but only any “substantial risk” of the wanton infliction of pain.

Finally, in Giles v. California, Docket No. 07-6053, the Court has agreed to decide when a criminal defendant “forfeits” his or her Sixth Amendment right to confront and cross-examine the witnesses against him or her. Is it upon the state’s showing that the defendant has caused the unavailability of a witness, as some courts have held? Or must there also be an additional showing that the defendant’s actions were undertaken for the purpose of preventing the witness from testifying, as other courts have held?

The twist is that the reason Dwayne Giles was unable to confront the witness at his trial is that he killed her. Giles, who was convicted of murdering his former girlfriend, is appealing his conviction on the grounds that the jury shouldn’t have been allowed to hear the incriminating statements she made to a police officer before he killed her. According to Giles, when he shot Brenda Avie six times, it wasn’t for the specific purpose of preventing her from testifying at some future trial.

This case has not yet been scheduled for argument, but the petitioner's brief is due February 20 and it probably will be heard in April.

The Three Rs and More

Judy H. Kim — Thu, 20 Dec 2007 22:47:00 GMT

For decades, educators and activists have been working to improve the educational system in the United States. The federal No Child Left Behind (NCLB) legislation was enacted in 2001 in response to disparities in student achievement. Going back to the old school approach, the focus was on reading, writing, mathematics, and science, and NCLB directed states to design a system in which their students show improvements in these four subjects. Federal funds were tied to proof of annual progress to ensure that objectives were being met.

There is a glaring gap in this approach. By default, in emphasizing these subjects, civics, social studies, humanities, and history have been de-emphasized. The National Assessment of Educational Progress (NAEP), the Nation’s Report Card, tests students in the 4th, 8th, and 12th grades in civics. The 2006 results indicate that since 1998, only at the 4th grade have improvements been made, and predominantly from lower-performing students. Results from the 8th and 12th grades remain unchanged. Recently, there has been talk that, due to budget restrictions, NAEP will be eliminating some areas of testing. In particular, 4th graders may no longer be tested in U.S. history and civics in 2010. If the Nation’s Report Card is eliminating the U.S. history and civics assessments in the 4th grade, the message is that they are not priorities.

Comprehensive education and learning simply cannot ignore civics and history. Civic education and history must hold an equal place in our educational system. At the recent annual conference of the National Council for the Social Studies, the ABA Division for Public Education sponsored an address by retired U.S. Supreme Court Justice Sandra Day O’Connor. More than 1,500 social studies educators from throughout the country attended the program. Justice O’Connor spoke eloquently about the importance of civic education[1]:, “Our children, our grandchildren…are going to grow up as guardians of democracy and the rule of law…It is the citizens of our nation who have to preserve our system of government and we can’t forget it. And the better educated out citizens are, the better equipped they will be to do it. Part of it is also understanding the history of our country and how it formed and why, and the system the Framers tried to construct. We have some work to do today to get students educated.”

Justice O’Connor continued, “We must get across to our students that they do matter in our system of government, and they are critical to the success of each of the three branches of government, and so they need to learn what they are, and that they matter.” She explained, “For most Americans, participation in a social studies class or a civics class is about the only formal opportunity the person may have to think from the perspective of a legislator, an executive, or a judge, or even of the Framers of the Constitution who envisioned our three branches of government and how they would share power and fit together. And it’s in the classroom, that’s the first place that students get a sense of themselves as citizens.”

Such is the importance of civic education and history. To solely identify math, science, reading, and writing as measures of educational achievement and progress is a fragmented way of viewing learning. Without history and civic education, students are receiving an incomplete education. History and civic education is more than memorizing significant events and key figures. History is about understanding the context of these events and figures, its ramifications on future outcomes, and its influences on culture and identity. Furthermore, studying history and civic education teaches the skills to critically examine, reflect, analyze, and contextualize one’s place in history, not only from yesterday, but from today and even tomorrow.

And while testing is far from the sole indicator of student achievement, in not including civics and American history in the early years of NAEP’s testing cycle and in excluding civics, history, social studies, and government in the core subjects to be measured for NCLB, it is sending a message that civics and history are unimportant components of a child’s education. Rather, without civics and history, a child’s education is incomplete. Civics and history must be included as important measures of a student’s academic performance.

---------------------------------------------------------------------------------------------------------------------------------- The views expressed in the above have not been approved by ABA’s policy-making House of Delegates or Board of Governors, and, accordingly, should not be construed as representing the policy of the American Bar Association.

[1] Justice O’Connor’s full speech will be available by podcast on the National Council for the Social Studies’ website: www.ncss.org. Visit the website in the near future to download the speech.

Lawyers By Other Names

Howard Kaplan — Wed, 21 Nov 2007 05:30:00 GMT

“Lawyers” practice law, but they also seem to have often found their way into other professions and fields of endeavor—whether through calculation or happenstance. This is even the case in the seemingly unrelated fields of entertainment and the arts. It’s interesting to consider if—and how—their legal background might have affected their other pursuits. How did their legal training influence their creative process, the techniques they used, and the substantive issues they considered?

Someone like David E. Kelley (“L.A. Law,” “The Practice,” “Boston Legal”) entered the entertainment field precisely because of his experience as a lawyer. It’s commonly known that he has a legal background and it’s germane to his chosen pursuit of a distinctive career in television drama. Other “lawyers” have found their way to entertainment in ways apparently unconnected to their prior legal background. I’d like to focus in this entry on two interesting early examples, both born at the beginning of the twentieth century. These are two figures hardly known for being lawyers—but they were!

The first is composer/singer/pianist/actor Hoagy Carmichael (1899-1981). Hoagy is one of the great figures in popular jazz, the composer of such standards as “Georgia on My Mind,” Stardust,” and “In the Cool, Cool, Cool of the Evening.” He graduated from IndianaUniversity and then went to that university’s law school. Carmichael had a very brief career as a practicing lawyer with a firm in South Florida. When one of his early songs was recorded by Red Nichols, however, he decided to end his legal practice and become a professional composer and musician. As his son has written, “and so a lawyer was lost and a ‘jazz maniac’ was born.”

Carmichael also appeared in 14 movies, playing a character role evidently based on his own persona—the songwriter or piano player. Memorably, he played this role in two classic Hollywood films of the 1940s, To Have and Have Not (directed by Howard Hawks) and The Best Years of Our Lives (directed by William Wyler). “His presence in movies was laconic, maximum-cool, an angular fellow with a cocked eyebrow who had been everywhere, seen everything and was beyond being surprised by much.” It’s hard to say, beyond the benefits of being well educated and skilled in the arts of communication, how much his legal education contributed to Carmichael’s film persona, let alone his career in music.

In contrast, it’s easier to see a connection, both in terms of approach and substantive interests, in the fascinating figure of film director/producer/actor—and lawyer—Otto Preminger (1906-1986). Preminger, an Austrian Jew, graduated from the University of Vienna with a law degree (LLD) in 1926. What’s more, he came from an illustrious family of lawyers—his father was a high-ranking Austrian legal official and his brother was a lawyer. However, he was bitten early by the theatrical bug, starting his career with the esteemed theatrical director Max Reinhardt. In the 1930s Preminger immigrated to the United States, working first in Hollywood as both actor and, later, studio director. Ironically, given his Jewish background, he often played Nazi heavies in films.

Earlier this month, film critic Richard Schickel reviewed a new biography of Preminger and offered this succinct but rich portrait: “a civilized, upper-class Jewish émigré from Vienna, son of Emperor Franz Josef’s chief legal defender; a political liberal; a man capable of courtly kindness and generosity to favored colleagues; a shrewd showman with a genius for manipulating the press, a producer who in the 1950s became one of the first great masters of independent (as opposed to studio system) production; and, finally, a cinematic stylist with a unique, if sometimes limiting, manner.” That style and approach was typically cool, distant, and observational, with film shots of long takes and multiple characters interacting with one another. He seldom, if ever, used close up shots of characters in isolation. Schickel aptly describes Preminger and his film work: “The man had a passion for dispassion.”

This is especially evident in one of his best films and the one that clearly focuses on the professional work of lawyers and the workings of the legal system—Anatomy of a Murder (1959). If you haven’t seen this movie—or it’s been a long time—I urge you to put this in your Netflix queue! Released during the “golden age” of Hollywood legal films of the 1950s and early 1960s, it actually stands apart from them—and holds up remarkably well as a film classic and not just an interesting period piece. It’s often described as “modern” and was certainly pathbreaking in its day. For those unfamiliar with the story, it focuses on Upper Peninsula, Michigan defense lawyer Paul Biegler (played brilliantly by Jimmy Stewart as “just a simple country lawyer”) taking on the case of a surly Army lieutenant (Ben Gazzara) charged with first-degree murder for killing (shot six times) a bartender who may have raped his unabashedly sexy young wife (Lee Remick). A young George C. Scott plays the prosecutor and actual Hale & Dorr lawyer Joseph Welch (famous for representing the Army at the 1954 McCarthy hearings and inquiring of the Wisconsin senator, “Have you no sense of decency, sir?”) played the judge. It was based on a best-selling 1958 novel penned by “Robert Traver,” who actually was a Michigan Supreme Court justice, John D. Voelker. Duke Ellington provided a memorable jazz score and even has a cameo.

At 161 minutes, Anatomy of a Murder is a long movie, but doesn’t play that way, with terrific performances, a great screenplay, on-location filming, skilled direction—and frequent twists and turns in the plot, mirroring its ethical and legal complexities. In telling its story, the film explores issues of legal ethics (especially, witness coaching) and the insanity defense (“irresistible impulse”). Michael Asimow and Timothy Huff have written about legal issues in the movie online at Picturing Justice and the University of Texas law school website . Preminger’s Anatomy of a Murder features the use of language that had been virtually taboo in Production Code-era Hollywood, words such as “rape,” “semen,” “slut” and “panties”—in the case of the last word, this even becomes the basis for a slyly humorous scene in which the judge and lawyers engage in a sidebar to determine if they could come up with a more discreet term than “panties” to use in the courtroom. They couldn’t. Neither could Preminger, before the “courtroom” of the film’s audience. No idle metaphor, film critic Charles Derry has commented, reflecting on all of Preminger’s work, that “the director’s recurring image is the courtroom.” Similarly, David Thomson writes that, as viewers of Anatomy of a Murder, “we are put in the position of the jury: the workings of the film become the due process of law.”

Beginning in the mid-1960s, Preminger’s movies increasingly devolved into bloated, sometimes pretentious, movies and other lesser efforts. In Anatomy of a Murder, however, he created the quintessential film courtroom drama. It’s hard not to see his ingrained legal values, including professionalism and due process; careful gathering of facts; dispassionate “objectivity” rather than, shall we say, a rush to judgment; and a legal realist’s interest in matters of truth and justice, while recognizing their never simple coincidence with law. David Thomson sums up his analysis of Anatomy of a Murder, representative of Preminger’s best work: “Irony does not actually detract from the nobility of the law as an instrument reluctant to make up its mind about people. Preminger’s enquiring camera—always tracking with characters, rarely separating people engaged with one another—is the manifestation of intelligent reticence, and it produced half a dozen great movies.” These make for pretty worthwhile values and sensibilities, in drama and in life.

Howard Kaplan

The Torture Question

Jim Landman — Fri, 19 Oct 2007 20:19:00 GMT

Not too many years ago, many of us would have been surprised to hear a nominee for Attorney General of the United States being questioned about his views on torture. Today, not so much. The question of torture—how we define it, whether we engage in it, whether we “render” suspects to other nations for torture abroad—has become a regular topic of speculation and conversation.

We all know that torture has been disclaimed by virtually every nation in the world and is a clear violation of international law. Most of us think that it probably goes on nonetheless. And we certainly think that something like, if not quite, torture has been used on enemy combatant detainees if the procedures involved produce pain that is not “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death” (to quote an August 1, 2002 memo from the Department of Justice’s Office of Legal Counsel).

Torture has, of course, been around for a very long time. It was practiced by the ancient Greeks and Romans and, until the Enlightenment, it was an accepted practice in the legal systems of many European nations. But it is also a practice against which the Anglo-American legal tradition has—in most instances—defined itself.

The modern practice of torture goes back some eight hundred years. In the thirteenth-century, Azo of Bologna provided an admirably succinct definition (Office of Legal Counsel lawyers, take note). “Torture,” Azo said, “is the inquiry after truth by means of torment.”

The revival of classical learning in the universities of medieval Europe brought with it new attention to the Roman law of torture. In 1215, the Fourth Lateran Council of the Catholic Church forbade the participation of clergy in modes of proof, such as the ordeal, which relied on theories of divine intervention. Continental Europe turned to the confession as a new definitive form of proof. Torture was an especially effective means of extracting confessions from suspected criminals, even though commentators of the time also recognized that confessions so produced were inherently unreliable. This is why a confession had to be repeated away from the place of torture (although if a confession was recanted, another trip to the chamber would probably be in store). England, which had already been experimenting with juries of indictment and the “grand assize” (a panel of jurors used in land disputes), turned to trial by jury. The discovery of truth thus moved to the knowledge of the community, not the body of the accused.

By the fifteenth century, the English jurist Sir John Fortescue was decrying the practice of torture in his De laudibus legum Angliae (“In Praise of the Laws of England”). “Such confessions, alas! many. . .wretches make, not because of truth, but only because compelled by irresistible torments,” Fortescue wrote. But Fortescue’s outrage went only so far. England could shun torture because of its natural and material wealth. Its prosperous subjects were “more apt and disposed to investigate causes which require searching examination than men who, immersed in agricultural work, have contracted a rusticity of mind from familiarity with the soil.” In Fortescue’s assessment, many other countries used torture because they simply didn’t have enough subjects who could be trusted to discover the truth. These countries were not to be condemned, for the “superiority of the law of England does not spring from defects of the other [countries’] law, but is caused only by the fertility of England.”

As England moved from the middle ages into the Renaissance, it also entered what the legal historian John Langbein has described as its “century of torture” under the Tudor monarchs. Even then, however, torture remained at the margins of English law. During the reign of Henry VIII (before the split with Rome), Henry’s chancellor, Sir Thomas More, was accused of torturing suspected heretics. In his Apology, More denied the charge, but did admit that he subjected other criminal suspects to “well deserved pain” to discover and repress other “desperate wretches” before they could escape abroad. After the split with Rome, as the Protestant English monarchy faced constant threats from a Catholic Europe eager for its downfall, England began to issue a limited number of warrants to torture. But when Sir Edward Coke wrote his Institutes of the Laws of England in 1628, he could still argue that “there is no law to warrant tortures in this land, nor can they be justified by any prescription, being so lately brought in.” Coke knew whereof he spoke. In his capacities as Solicitor General and Attorney General, Coke had himself been named as a commissioner to torture in six warrants. But to Coke’s credit, he used his Institutes to establish that, despite its recent introduction (“being so lately brought it”), torture had no place in English law.

Here in the United States, a number of constitutional provisions make clear that the founders intended to follow England’s lead in prohibiting torture. (In this respect, it has been good to hear Attorney General nominee Michael Mukasey state that torture is not constitutional, even if there is some uncertainty about how to define waterboarding). Trial by jury was retained, a right against self-incrimination was enshrined in the Fifth Amendment, and the Eighth Amendment protected against the infliction of “cruel and unusual punishments.”

Even with our constitutional protections, torture maintains a shadowy presence in the United States. Questions about interrogation practices used in covert activities, for example, have lingered for years. Closer to home, here in Chicago there is now clear evidence that police routinely tortured suspects during interrogations in the 1970s and ‘80s. But the fundamental illegality of torture has never been in question.

This is what has been so distressing about recent efforts to create loopholes in the prohibition of torture. You simply can’t define what does or does not constitute torture. Again, this is a fact that has long been recognized by practitioners of torture. Fourteenth-century legal commentator Jehan Boutillier, author of the Somme rural, noted that if a person is “suspected [of a crime] by strong presumption, [the judge] may and shall put him to torture according to his physique, for one person can stand more severe torture than another.” In other words, just because you’re avoiding pain equivalent to organ failure does not mean that you’re not torturing someone. Trying to say otherwise sounds disingenuous, at best.

The views expressed in this article are those of the author and have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association.

Guantanamo Bay, Again

Chuck Williams — Sat, 22 Sep 2007 01:37:00 GMT

Even though the Supreme Court so far has granted certiorari in only 28 new cases, there is no shortage of important issues awaiting the opening of the new October term. For one thing, a long and robust conversation between the three branches of government may have set the stage for the Court to finally determine what rights are actually possessed by the suspected terrorists and enemy combatants now held at the U.S. Navy base in Guantanamo Bay, Cuba.

What could be one of the new Term’s biggest cases has been a long time coming. In 2004, the Supreme Court rebuffed the Bush Administration and held in Rasul v. Bush that the prisoners being detained as enemy combatants at Guantanamo are covered by the federal habeas corpus statute and thus have the right to contest the legality of their incarcerations in federal court. Subsequently, however, Congress passed the Detainee Treatment Act of 2005 (DTA), which appeared to strip the Guantanamo detainees of such habeas rights.

In 2006 the Court responded in Hamdan v. Rumsfeld byholding that the DTA actually did not strip federal courts of jurisdiction over any of the many habeas cases that were already pending at the time of the DTA’s enactment. Seeing that the ball was back in its court, Congress then passed the Military Commissions Act of 2006, which denies detainees any habeas corpus rights whatsoever, regardless of whether their cases are already pending. (Instead, the MCA says, detainees are entitled to special military trials.)

Last winter the U.S. Court of Appeals for the District of Columbia Circuit upheld these habeas-stripping provisions and in April 2007 the Supreme Court denied the detainees’ petitions for certiorari.

Two months later, however, the Supreme Court surprised nearly everyone by changing its mind. On June 29 it granted the detainees’ petitions for certiorari so as to decide once and for all whether federal courts have jurisdiction over petitions for writs of habeas corpus that are (1) filed by aliens who were (2) captured abroad and then (3) detained at Guantanamo Bay, Cuba. The Court consolidated two separate cases for argument on these issues: Boumediene v. Bush, No. 06-1195 (involving seven detainees) and Al Odah v. United States, No. 06-1196 (involving 56 detainees). These consolidated cases were not immediately scheduled for argument but are likely to be heard in either November or December.

When they are, and assuming the Court agrees with the government that Congress intended to deprive the courts of jurisdiction over the detainees’ habeas petitions, the cases will be decided on the basis of whether or not the MCA violates the Constitution’s Suspension Clause, which states that “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. CONST. art. I, § 9, cl. 2.

Meanwhile, when the 2007-08 term officially begins October 1, the first case before the Court will be Washington State Grange v. Washington State Republican Party, No. 06-713, which questions the constitutionality of state laws that regulate the party identification candidates can include on primary election ballots, and New York City Board of Education v. Tom F., 06-637, a case that asks the Court to identify the circumstances in which parents are entitled to tuition reimbursement for their disabled child's education.

Judging by the October argument calendar as a whole, sentencing issues in general and the Federal Sentencing Guidelines in particular also will remain a fertile ground for the Court this term. One case, Kimbrough v. United States, Docket No. 06-6330, is of particular interest as it addresses the oft-noted disparity between the heavier sentences imposed for crimes involving crack cocaine as opposed to those involving powder cocaine. In Kimbrough, the Court will review the actions of a federal judge who imposed a below-guidelines sentence in a crack-cocaine possession case on the grounds that the sentence required under the Guidelines was higher than necessary to do justice.

Also being watched closely is a case that the Court has not yet agreed to review -- District of Columbia v. Heller, No. 07-290. There the District of Columbia is seeking review of a court of appeals decision that struck down the District's gun control laws as an unconstitutional violation of the Second Amendment.

Same Issue, Different Face

Judy H. Kim — Tue, 21 Aug 2007 18:37:00 GMT

Immigration was in the news again this week as Elvira Arellano was deported to Mexico by U.S. Immigration and Customs Enforcement while her eight-year-old son, a U.S. citizen, remained behind, being cared for by the church that was providing Arellano refuge in Chicago. Mother and son were shortly reunited but the plan is for him to return to Chicago to continue school in the third grade. One has to wonder, at what point has the immigration debate taken such a wrong turn if a child is effectively orphaned to make a political case? The policy-making process has become so political that skewed examples need to be staged in order to evoke outrage and action from the public.

It is meaningful how plays on terminology can affect perception. Interestingly, the “immigration debate” and the “illegal immigration debate” have become interchangeable. It is also interesting how illegal immigration is a concern when it relates mostly to the Mexican border. One hundred and sixty years ago, when the southwestern states belonged to Mexico, these borders were more fluid. Crossing borders wasn’t illegal when Northern Europeans traversed over them to take over North America in the 1500s, and it wasn’t illegal when slave traders kidnapped Africans and forced them into slavery in the early 1600s. It only became illegal when the Northern Europeans who settled in this country, decided to take ownership, and in this process of appropriating, closed the very borders that had been opened for them. In 1790, the Rule of Naturalization was enacted, a uniform rule of naturalization that was established to determine citizenship, one condition being a two-year residency. In 1795, the two years was found to be insufficient and was thus expanded to five.

Apparently, immigration is always legal for the colonizer and it is the right of the colonizer to dictate and define what is legal, illegal, for whom, and for how long.

Since then, immigration laws have been established to exclude based on hype. In the 1850s, the Chinese were the Mexicans of today. Thousands of Chinese people were drawn to the United States by the opportunities for labor and prospects of gold. By 1882, the Chinese Exclusion Act was passed and re-enacted in 1892. By 1902 it had become a permanent directive in effect until 1943, during World War II, when China was an ally. Once the Chinese Exclusion Act was established, farmers in the West were faced with a shortage of laborers, upon which Japanese settlers were encouraged to immigrate, but per the Japan-U.S. Gentlemen’s Agreement – in which Japan agreed not to send over too many Japanese citizens to the U.S. and California agreed not to discriminate against residents of Japanese descent – the Japanese were required to immigrate at an acceptably low rate, enough to exploit for cheap labor, but not too many to appear to overrun the country. Then, the 1917 Immigration Act put the nail in the coffin by banning immigration from all Asian countries with the exception of Japan and the Philippines.

Having thus taken care of Asian immigrants, a backlash to the influx of mostly Southern and Eastern European immigrants from the 1880s to the 1920s set off the 1921 Emergency Quota Act, which limited the immigration of each “historically” represented in the U.S. in1910. That quota clearly did not have enough of a restricting impact, and so the 1924 Immigration Act was passed, wherein the cap was decreased to two percent of the represented population in 1890. This legislation finally proved to be successful in decreasing immigration for the interim.

During the period of expansionism, while the United States was attempting to conquer the whole continent, there were no immigration issues with Mexico. The 1848 Treaty of Guadalupe, following the Mexican-American War, ceded California, Nevada, Utah, and New Mexico to the United States. Under the Treaty, having won four very sizeable states and then some, the U.S. magnanimously agreed to grant citizenship to approximately 75,000 Mexicans (who were living in the acquired states), and recognized the rights of Mexicans to retain their language, culture, religion, and property. The close of the 20^th century, with the increase of immigration from Asia and Latin America, however, brought about increased racial and ethnic intolerance.

Today, while Mexicans represent the greatest number of legal immigrants to the United States, two-thirds of undocumented immigrants are from Mexico as well, which provides an easy handle to latch onto for xenophobes. Related to illegal immigration, there is often an outcry of economic deficits due to job loss, complaints about the strain put upon the welfare system, and grievances about the increase in taxes that citizens must pay because illegal immigrants do not; these are all arguments that incite anxiety and antipathy towards the illegal immigration issue. However, despite the fact that many of these issues are unfounded and false, it is still perplexing how illegal immigration and legal immigration become so easily conflated. Moreover, in terms of costs and benefits, what is not raised is the increased cost that has been incurred due to the oft hysterical response to these immigration concerns. The Homeland Security Act of 2002 moved the U.S. Immigration and Naturalization Services from the Department of Justice to the then newly formed Homeland Security (DHS), restructured INS and other agencies under the U.S. Citizenship and Immigration Services (USCIS), including moving Border Patrol under USCIS. Beyond just the physical restructuring, a dramatic adjustment was the budget for USCIS, which has increased from $1.5 billion in 1994 to $10 billion in 2007. The cost to stave off (il)legal immigration is very steep, but apparently worthwhile, as the debate continues and policies to restrict persist.

Given the history of immigration in the United States and the U.S.’s response to the influx of immigrant groups, the issue does not appear to be concerns over illegal immigration, but rather the changing faces of the country. History also dictates that there will always be a face that represents a threat, and that this, too, shall pass – and once passed, another target will be sought.

Celebrating 50 Years of ABA Silver Gavel Awards

Howard Kaplan — Sat, 21 Jul 2007 11:00:00 GMT

This week American Bar Association President Karen J. Mathis is presenting the Association’s 50^th annual Silver Gavel Awards for Media and the Arts. In 1958 ABA President Charles S. Rhyne presented the first Silver Gavels “to recognize outstanding contributions to public information and understanding of the roles of law and courts in our society.” In this post, I’m taking a selective look back at 50 years of Silver Gavel Awards, focusing on the category of legal drama from the media of film and television. Taken together, the set of Silver Gavel Award-winning dramas presents quite a fascinating history of popular culture. They can offer us insights into prevailing attitudes towards law and lawyers during the past half-century. Moreover, they also reveal something about the changing video culture through which legal issues have been dramatized since the late 1950s.

The Silver Gavels are presented “for Media and the Arts.” This is to make clear that these are not only awards for journalism or news media. From the very beginning, the Association has recognized that legal drama has an unmatched capacity to humanize legal actors and, well, dramatize legal issues for public audiences. There’s an obvious potential connection to exploit between the human conflict of legal disputation and the drama that can make for powerful and accessible storytelling. In short, legal drama provides an incomparable means to foster public understanding of law, legal issues, and legal institutions--which is what the Silver Gavel Awards are all about.

In the Silver Gavel’s very first year, 1958, Charles Rhyne presented the award for Sidney Lumet’s classic jury room drama Twelve Angry Men (United Artists), starring Henry Fonda and Lee J. Cobb. During the next five years, both Judgment at Nuremberg (Stanley Kramer Corp., 1962 Silver Gavel) and To Kill a Mockingbird (Universal-International Pictures, 1963 Silver Gavel),starring Gregory Peck as Atticus Finch, were recognized by the ABA. The award for To Kill a Mockingbird, evidently echoing the Supreme Court’s decision in Gideon v. Wainwright that year, cited it for “dramatizing the individual right to counsel and the lawyer’s duty to defend indigent persons accused of crime.” These three feature films, released theatrically, were part of a small group of prestige motion pictures produced in the late 1950s and early 1960s that legal historian David Papke and others have referred to as a “golden age” of Hollywood legal films. Papke points out that these films were popular and critical successes in their day and have justifiably come to be regarded as classics and even “exemplars for the standard pop cultural legal drama.” (“Law, Cinema, and Ideology: Hollywood Legal Films of the 1950s,” UCLA Law Review, Vol. 48 No. 6, 2001). http://tarlton.law.utexas.edu/lpop/etext/ucla/papke48.htm

This early period was also an evident “golden age” of legal drama for the Silver Gavels. Never again has there been a period of awards for feature films of the silver screen to rival 1958-1963. The Silver Gavels, of course, have continued to recognize legal drama. However, since the early 1960s, it’s been the “box” of the small screen—including series television and TV “movies”—that has been the primary vehicle for legal drama. Interestingly, both series television and TV movies have each had two heydays when it comes to Silver Gavels.

Let’s begin with network television series. The very first Silver Gavel for Television Drama went to Perry Mason in 1960. Still regarded as a classic series, albeit dated in sensibility almost to the point of camp, criminal defense attorney Mason notably never lost a case and invariably benefited from on-the-witness-stand confessions from the truly guilty. Apparently it was such a novelty for all concerned that, when the series received a Silver Gavel, Perry Mason himself—star Raymond Burr—picked up the Silver Gavel from ABA President John Randall. Into the 1960s, two episodes of the acclaimed Reginald Rose-created CBS television courtroom drama The Defenders, next received Silver Gavels (“Iron Man,” 1962; and “Blacklist,” 1964). Starring E.G. Marshall and Robert Reed as dedicated father-and-son defense lawyers, The Defenders tackled tough social and legal issues of the day. Creator and writer Reginald Rose also wrote Twelve Angry Men, inspired by his own experience of jury service. In 1968 a Silver Gavel went for the “Commitment” episode of ABC’s Judd for the Defense (starring Carl Betz as a character inspired by real-life high-profile attorneys F. Lee Bailey and Percy Foreman)—“in which a dedicated lawyer remedies miscarriages of justice.” In 1971 a Silver Gavel was presented for an episode (“A Continual Roar of Musketry”) of the short-lived, but critically well regarded, NBC series, The Bold Ones: The Senator, starring Hal Holbrook as an idealistic Bobby Kennedy-like U.S. senator. That was a different era, wasn’t it? Tellingly, it would be 21 years before another Silver Gavel would be awarded for an episodic series television show. Enter Law & Order and a radically different sensibility and style from the 1960s depiction of noble lawyers pursuing noble causes of social justice.

In 1992 Law & Order Executive Producer Dick Wolf received that series’ first of five Silver Gavels from ABA President Talbot (“Sandy”) D’Alemberte for the “Asylum” episode. “Asylum” was cited as a “compelling examination of the impact of homelessness on the criminal justice system.” In its standard format of half criminal investigation and half prosecution, characterized at its best by superb writing and stellar New York-based actors, Law & Order took on legal and social issues ripped from the headlines. Trademark sensibilities were a sense of big-city street “realism,” a near disdain for personal character development, a willingness not to shy away from ethical quandaries, and a sophisticated recognition that law and justice are not always coincident. Other L&O episodes earning Silver Gavels were “Intolerance” (1993), “House Counsel” (1996), “DWB” (1999), and “Hate” (2000). During this time, only one other network television drama was able to break Law & Order’s grip on the Silver Gavel—a distinctive cinema-verite-style episode of David E. Kelley’s The Practice (“Spirit of America,” 1998, lawyer Bobby Donnell and colleagues try to obtain a stay of execution for a man on death row). The 2000 “Hate” episode of Law & Order was the last time an episode of series television earned a Silver Gavel.

What about the periods before and after the 1990s-era heyday of Law & Order? These were eras of the dominance of what, in the 1970s, was often called the “movie of the week,” i.e., long-form, movie-length dramas released initially for television and never contemplated as feature films for general release in movie theaters. These TV movies were often prestige productions about serious topics. Prime examples were Fear on Trial, a CBS Movie of the Week that received the 1976 Silver Gavel. It tells the story of Austin, Texas radio show host John Henry Faulk and his successful lawsuit that effectively ended the Hollywood blacklist. Stars were William Devane as Faulk and George C. Scott as his attorney, Louis Nizer. A 1977 Silver Gavel went to Judge Horton and the Scottsboro Boys, a dramatization of the famous 1930s case, which aired on NBC and starred Arthur Hill as Judge Horton. The Silver Gavel citation recognized the movie for “examining the responsibilities of judge and jury to effect a just verdict within the trial-by-jury system.”

Into the 1980s and 1990s such TV movies became less and less common on network television, ultimately dying out. The development of cable television in the 1990s and 2000s, however, provided a new platform for this genre, now described as “original movies” produced for television and often recruiting distinguished Hollywood veterans as key creatives. A prime example is Dirty Pictures, produced for the Showtime cable network. Winning the 2001 Silver Gavel for Television Drama, the Standing Committee on Gavel Awards commentary described it as a “compelling dramatization of the First Amendment furor generated by the Cincinnati Contemporary Art Center’s 1990 exhibition” of the controversial photographs of Robert Mapplethorpe. Dirty Pictures was directed by Frank Pierson, the acclaimed Hollywood writer (Dog Day Afternoon, Cool Hand Luke) and former AMPAS (“Oscar”) president. Showtime won a second Silver Gavel in 2002 for The Killing Yard, a dramatization of the 1971 Attica, New York state prison revolt. More recently, Court TV won Silver Gavels for TV Drama for a trio of outstanding “original movies”: The Interrogation of Michael Crowe (2003), Chasing Freedom (2005), and The Exonerated (2006). With the possible exception of Chasing Freedom, a more discernibly fictionalized account about political asylum, all of these Silver Gavel award-winning movies, from both the 1970s and 2000s, are dramatizations of actual historical events. After producing The Exonerated, Court TV has evidently—and unfortunately—shut down its production of “original movies.” We can only hope this is not the end of a cycle of high-quality legal drama—or, if so, that new platforms and genres will emerge as video-based vehicles for legal drama as we approach the end of the first decade of the millennium and enter the 2010s.

Learn more about the Silver Gavel Awards here. http://www.abanet.org/publiced/gavel/

Howard Kaplan

Roberts’s Rules Revisited

Chuck Williams — Fri, 22 Jun 2007 09:22:00 GMT

I n an interview published in the January/February 2007 issue of The Atlantic Magazine, Chief Justice Roberts explained that he is determined to help the Supreme Court produce more unanimous opinions than the justices managed during the Rehnquist era.

According to Roberts, the biggest problem with decisions that are loaded with multiple dissents (and concurrences that sometimes overlap and sometimes don’t) is not that they are difficult to read and understand – although they are. No, the biggest problem, he says, is that “it’s bad, long-term, if people identify the rule of law with how individual justices vote.” Therefore it would be good, the Chief Justice told The Atlantic, “to have a commitment on the part of the Court to acting as a Court, rather than being more concerned about the consistency and coherency of an individual judicial record.”

After a promising start, however, the 2005 Term ended in June 2006 with what Justice Stevens called in one case a “cacophony” of contradictory opinions. Still, Roberts told The Atlantic, the media is making a mistake – and perhaps even performing a disservice – when it emphasizes such splintered decisions. Under his guidance, Roberts noted, the Court has had “more unanimous opinions announced in a row than ever before … in the modern era, but in the first 5–4 decision, people are writing, ‘So much for unanimity.’”

So my colleagues and I wondered: how did the Court do this time in response to Roberts’s push for greater unanimity? The answer seems to be, not bad at all -- if we take Supreme Court reporter Jan Crawford Greenburg’s advice and only look for greater unanimity in cases in which the Justices truly have a reasonable chance of finding common (albeit narrower) grounds for decision without compromising their bedrock principles. Writing for ABCnews.com, Greenburg pointed to the Court’s 9-0 decision in Sole v. Wyner, an attorney’s fees case in which Roberts assigned the opinion to Justice Ginsburg. That case, Greenburg says, is the “perfect example” of the Justices achieving unanimity by agreeing on a narrow ruling rather than fighting for a broader ruling that might have only garnered a bare 5-4 majority. The Court has been able to muster unanimous or near-unanimous decisions in a number of business-related cases this Term as well with results that often can be categorized as "pro-business."

But it must be said that when it comes to the big, “page one” cases involving such hot-button topics as abortion or affirmative action or the death penalty, the Roberts Court is as divided as the Court has ever been. In fact some observers think it’s even more divided now than in the past. Others disagree.

There is perhaps only one thing every observer can agree on. When it comes to closely divided cases, Justice Kennedy holds the key. In seven of the Court’s 5-4 opinions issued to date, Kennedy joined Roberts, Scalia, Thomas, and Alito to form a conservative majority that left all four liberals (Stevens, Souter, Ginsburg, and Breyer) in dissent. In Bowles v. Russell, Kennedy’s vote enabled the Court to hold a criminal defendant’s appeal time-barred even though he had faithfully followed the trial court’s order that gave him until a specific (but, it turns out, erroneous) date to appeal from his conviction.

Similar in tone, the Court's opinion in Lawrence v. Florida, held that the one-year statute of limitations for filing a federal habeas corpus petition is not suspended while a prisoner's petition for certiorari is pending in the Supreme Court.

Meanwhile, in Uttecht v. Brown, the Court held that in a death penalty case the appellate courts must defer to the trial judge’s discretion in removing potential jurors who express doubts about the death penalty. In another death penalty case, Schriro v. Landrigan, the Court held that the district court did not abuse its discretion in refusing to grant the convicted defendant an evidentiary hearing on his ineffective assistance of counsel of claim, while in Ayers v. Belmontes, the Court upheld the constitutionality of a “catch-all” capital jury instruction on mitigating evidence.

Then in Ledbetter v. Goodyear Tire & Rubber Co. the Court said that employees making a Title VII pay discrimination claim (that is, a claim that they received disparate treatment based on their race or gender) must do so within 180 days of the original discriminatory action -- not within 180 days of their last paycheck.

And of course famously in Gonzales v. Carhart, the Court with Kennedy’s help narrowly rejected a claim that Congress’s failure to include a health exception rendered the federal Partial-Birth Abortion Ban Act unconstitutional on its face.

Yet in five other 5-4 decisions this term Kennedy joined the four liberals and put the conservative four in dissent. Those cases include three death penalty cases out of Texas (Smith v. Texas, Brewer v. Quarterman, and Abdul-Kabir v. Quarterman), Philip Morris USA v. Williams (involving constitutional limitations on punitive damages), Massachusetts v. Environmental Protection Agency (involving the Clean Air Act), and Marrama v. Citizens Bank of Mass. (involving the Bankruptcy Code).

So get ready for next week, when the Court is expected to release opinions in the term’s two student diversity cases (Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education) as well as a controversial student speech case, Morse v. Frederick. If the Chief Justice can persuade the Court to end the 2006 term with unanimous or near-unanimous opinions in any of those three cases, even the most cynical skeptic should be impressed.

In Praise of Everyman

Jim Landman — Mon, 21 May 2007 21:30:00 GMT

“We always joked that Jimmy Stewart’s going to play him in the movie. He’s the picture of rectitude – a charming, engaging, funny guy, but one who set a tone for the office about doing the right thing, not necessarily about winning every case.” So said Steven R. Peiken, describing former U.S. deputy attorney general James B. Comey, with whom Mr. Peiken worked in the U.S. Attorney’s office in Manhattan, in an article that appeared on Thursday, May 17, in the New York Times.

Jimmy Stewart, of course, is the exemplar of the American Everyman – humble, self-effacing, and principled. Mr. Comey, by virtually all accounts, fits the Stewart mold. The Wall Street Journal reports (subscription required) that he is “known for his disarming chuckle and impeccable reputation” and quotes the written statement of a spokesman for Lockheed Martin Corp., where Mr. Comey now works as a general counsel, that “Jim exemplifies the ethical principles and values-based culture championed by Lockheed Martin.”

Mr. Comey and his character have come under the spotlight because of his dramatic testimony before the Senate Judiciary Committee on May 15. On the evening of Wednesday, March 10, 2004, Mr. Comey – serving as acting attorney general while Attorney General John Ashcroft recovered in hospital from pancreatitis – rushed to Mr. Ashcroft’s hospital room when he learned that White House Chief of Staff Andrew Card and Alberto Gonzales, then serving as White House counsel, were on their way to the hospital to meet with Mr. Ashcroft. Just hours before Mr. Ashcroft fell ill, he and Mr. Comey had decided that the Justice Department would be unable to certify the legality of the National Security Agency’s domestic eavesdropping program. As acting attorney general, Mr. Comey had refused to sign the certification and he realized that Mr. Card and Mr. Gonzales were probably seeking to make an “end run” around him by securing Mr. Ashcroft’s signature at the hospital.

Reading Mr. Comey’s account of the events that transpired at Mr. Ashcroft's hospital bed, one is reminded not so much of the Jimmy Stewart Everyman than of the Everyman of the Middle Ages – the hapless mortal facing death who witnesses a bedside struggle between angels and demons for his soul. “I sat down in an armchair by the head of the attorney general’s bed,” Mr. Comey related.

The two other Justice Department people stood behind me. And Mrs. Ashcroft stood by the bed holding her husband’s arm. And we waited.
And it was only a matter of minutes that the door opened and in walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came over and stood by the bed. They greeted the attorney general very briefly. And then Mr. Gonzales began to discuss why they were there – to seek his approval for a matter, and explained what the matter was – which I will not do.
And Attorney General Ashcroft then stunned me. He lifted his head off the pillow and in very strong terms expressed his view of the matter, rich in both substance and fact, which stunned me – drawn from the hour-long meeting we’d had a week earlier – and in very strong terms expressed himself, and then laid his head back down on the pillow, seemed spent, and said to them, “But that doesn’t matter, because I’m not the attorney general.”

A medieval image of this scene would conveniently identify the angels with wings and the demons with horns. In the polarized political environment of America today, there is no less interest in sanctifying or demonizing Mr. Comey's role in the drama that unfolded in Mr. Ashcroft’s hospital room. Senator Charles Schumer (D-NY) recast the Senate Judiciary Committee as a confessional for Mr. Comey. “He had been carrying this weight around inside him and wanted the appropriate opportunity to get it off his conscience,” Mr. Schumer opined. “When you watched him, he was both pained and relieved.” On the Wall Street Journal's op-ed page, a less charitable view prevailed (“Wiretap Tales,” May 17, 2007; subscription required). It cast the hearings as a “full length docudrama,” with Mr. Comey’s “spirited retelling” offering an important strand for the Democrats who, it alleges, “are spinning a yarn about shady deeds perpetrated in a hospital room at night.” A whiff of sulphur rises from the Journal’s ominous reminder that the incident in Mr. Ashcroft’s hospital room occurred on the eve of the Madrid train bombings on March 11, 2004.

Lawyers like their saints as much as anyone, and also know how quickly one can be demonized for making an unpopular decision or taking a controversial stand. In truth, most lawyers are neither saints nor sinners. Critics of John Ashcroft, surely one of the more demonized attorneys general in recent memory, may have been taken aback by the man of principle who rose from the hospital bed in Mr. Comey’s testimony. Mr. Comey – a reluctant witness whose story would probably have remained secret but for the Senate Judiciary Committee hearing – is nothing more nor less than a lawyer who was trying to do his job.

In an interview with PBS’s Frontline earlier this spring, Washington lawyer Suzanne Spaulding described the duties of a lawyer in a national security context, a description that could apply to any lawyer in government service. “One of the things you worry about a lot is remembering who your client is. There is a real temptation to think that your client is that executive branch official who’s asking you the question or who you’re advising. And it’s important to remember that your client is the American public and the Constitution and that sometimes you have to tell the official who thinks that you are their lawyer and that they are your client news that they don’t want to hear; that in fact they can’t undertake the activity that they’d like to undertake, because it is in violation of law or the Constitution.” These twin tasks of the government lawyer -- remaining faithful to the American public and to what the law and the Constitution require -- are on what the rule of law depends.

In the medieval morality play Everyman, Everyman finds himself facing death deserted by everything except his good deeds, uncertain of his final judgment until an angel descends in the closing lines to claim his soul. Lawyers too spend much of their time working in the face of uncertain judgment. The law needs neither saints nor sinners, just everymen and women trying to do the right thing.

Proclaiming Law Day?

Howard Kaplan — Sat, 21 Apr 2007 02:10:00 GMT

We’ll be celebrating the national observance of Law Day (www.lawday.org) on May 1. Issuing the first presidential proclamation in 1958, Dwight Eisenhower characterized Law Day as a “day of national dedication to the principle of government under laws.”

Looking ahead, next year will be the 50^th anniversary of the first Law Day. In preparation for this milestone, we have been trying to gather a half century’s worth of memorabilia and documents. Our friends at the Law Library of Congress have been helping us by putting together a complete collection of proclamations issued not just by President Eisenhower, but by every president for every year from 1958 on. Reading through these proclamations, I was struck by what a fascinating collection of historical documents they are. I’d like to share some of what I found, starting with the earliest proclamations.

It’s no coincidence that Law Day is celebrated on May 1 each year. Its origins clearly date to the Cold War era and one of the primary aims of “Law Day U.S.A.” was, in John Kennedy’s words from 1963, to “become the significant answer to Communism’s May Day demonstrations.” Still, both Presidents Eisenhower and Kennedy used their proclamations to make more fundamental appeals to the primacy of the rule of law and its connection to world peace.

Perhaps thinking of domestic as well as international contexts, the Eisenhower proclamation of 1959 begins with a plea that “free people can assure the blessings of liberty for themselves only if they recognize the necessity that the rule of law shall be supreme and that all men shall be equal before the law.” Remember that Eisenhower called out federal troops during the school integration crisis in Little Rock, Arkansas in September 1957—around the time that ABA President Charles Rhyne, an ardent civil rights advocate, was conceiving Law Day.

In Kennedy’s 1963 proclamation—clearly mindful of still fresh events such as the Cuban Missile Crisis of October 1962—he reflects: “In a time when all men are properly concerned lest nations, forgetting law, reason, and moral existence, turn to mutual destruction, we have all the more need to work for a day when law may govern nations as it does men within nations…when the moral development of the human race may assure us of a peaceful and law-abiding world.”

By the middle of Lyndon Johnson’s term as president, we see a different emphasis in the Law Day proclamations of 1967 and 1968, a time when the nation, and the president, wrestled with domestic issues of civil disobedience, struggles for equal justice, “white resistance,” and violent confrontations in the streets.

Consider this eloquent language from LBJ’s 1967 Law Day proclamation, in which he speaks directly to Americans in the first person: “I ask every American to take the law into his heart—not into his hands.” He adds, “I ask not blind obedience, but enlightened obedience. I ask patience, too, for the law, like our times, will and must change. But America’s fidelity to the law must be eternal.”

The next year’s proclamation from Johnson picks up this theme again, but deepens the emphasis on law as a democratic instrument for constructive social change: “The law we recognize and respect is not the mere exercise of power. It is not just a device to enforce the status quo. Law is a process of continuous growth that allows the creation of new rights for all men through a deliberative, democratic process…without recourse to self-defeating violence.”

With the benefit of historical perspective, we can see how—within a shared framework underscoring the importance of the rule of law—these remarkable proclamations from Law Day’s first decade reveal key issues of the day. They serve as time capsules, showcasing the attitudes and values the various presidents expressed towards the law and the rule of law.

Now, I’d like to ask you to imagine you’re the president of the United States.

If you were writing this year’s Law Day proclamation, what issues of our day would you want to highlight? How do they relate to law and how does law relate to them? Do you think some of the issues addressed and values expressed by Eisenhower, Kennedy and Johnson are relevant today? How would you want future generations to read your proclamation?

Howard Kaplan