Super Precedent or Too Big to Lose

July 18, 2017

It was difficult to sit through all the sanctimonious claims of doing law by adhering to precedent by a succession of Supreme Court nominees and then read its decision in BNSF R. CO. v. Tyrrell in which the Court overruled International Shoe v. State of Washington. Senators have been grilling the nominees for years about adherence to precedent. We heard about ordinary precedent, long standing precedent, and precedent that has been used and cited numerous times.

International Shoe was decided in 1945 by legendary justices. Chief Justice Harlan Fiske Stone wrote the opinion. He was joined by Justices Douglas and Frankfurter, as well as justices Reed, Murphy, Rutledge and Burton who are less well known to the general public. There were no dissents. Justice Hugo Black concurred on the ground that the attack on the jurisdiction of the State of Washington was so frivolous it should have been dismissed out of hand. Justice Jackson was a member of the Court but recused himself and took no part. Effectively it was unanimous.

If ever a case was used and relied on it was International Shoe. Lexis, a legal database reported that International Shoe had been cited by nearly 22,000 judicial decisions at all levels of the American legal system, plus some 13,000 other sources. It showed no negative treatment.

International Shoe provided that companies could be sued either where the claim arose or where they did sufficient business to make it fair to sue them there.

Montana’s Supreme Court held that the defendant corporation could be sued in Montana “because it has over 2,000 miles of railroad track and employs more than 2,000 workers in Montana.” It other words, the company is quite busy in Montana. But the U.S. Supreme Court held that the corporation could only be sued at its home office.

In their freshman year, law students are drilled on International Shoe. Endless pages in textbooks are devoted to International Shoe. A pretty important decision indeed. But the Roberts Court didn’t like it.

Justice Sotomayor, as she often does, explained:

The majority’s approach grants a jurisdictional windfall to large multistate or multinational corporations that operate across many jurisdictions. Under its reasoning, it is virtually inconceivable that such corporations will ever be subject to general jurisdiction in any location other than their principal places of business or of incorporation. Foreign businesses with principal places of business outside the United States may never be subject to general jurisdiction in this country even though they have continuous and systematic contacts within the United States. … What was once a holistic, nuanced contacts analysis backed by considerations of fairness and reasonableness has now effectively been replaced by the rote identification of a corporation’s principal place of business or place of incorporation.  The result? It is individual plaintiffs, harmed by the actions of a farflung foreign corporation, who will bear the brunt of the majority’s approach and be forced to sue in distant jurisdictions with which they have no contacts or connection.

In other words, these companies are too big to lose. The more places a company does business, the further it can make plaintiffs travel. Even if plaintiffs can get to court over the hurdles placed by this Court, they will have to sue far away in unfamliar places. No barrier is strong enough to protect those companies which are already wealthy enough to give back to the society that protects them.

These cases have been decided under the Due Process Clause of the Fourteenth Amendments. The word “due” means appropriate. It is an invitation to craft a jurisprudence that maximizes fairness to the parties. But the Court has been going the other way, grounding judicial power on happenstance, not fairness.

The Roberts Court is not doing law. Instead it has its own economic policy. It doesn’t seem to have noticed that voters in both parties have been demanding populism in economic policy. But who elected the Roberts Court?

— This commentary was broadcast on WAMC Northeast Report, July 18, 2017.

 

 


The Courts Stand Up for Impunity

June 27, 2017

In one of the last cases to be decided this term of Court, the Supreme Court described the death of Sergio Hernandez as “a tragic cross-border incident.”[1] Indeed. I want to make clear that I care deeply about this case. Several friends and I helped write an amicus brief to the Court about it.[2]

Sergio Hernandez was 15 years old. The Court continued, “According to the complaint,” which the Court must accept as true at this early stage of the proceedings, “Hernandez and his friends were playing a game in which they ran up the embankment on the United States side [of the Mexican border], touched the fence, and then ran back down.” Border Patrol Agent Mesa caught and detained one of Hernandez’ friends but “Hernandez ran across the international boundary into Mexican territory and stood by a pillar that supports a railroad bridge spanning the culvert” between the c ountries. At a distance – the Court wasn’t precise but the culvert was up to 270 feet wide – Agent Mesa shot and killed Sergio Hernandez though the Agent was in no danger.

Notice the issues that the District, Appellate and Supreme Courts have been “struggling” with.

First, the Court had to deal with whether the Constitution itself authorizes a remedy when Congress has not provided one for the violation of constitutional rights. In other words, do our rights exist at the pleasure of Congress? That’s known technically as the Bivens question.

Second, do foreigners have any constitutional rights or may American officials kill them at pleasure? The Court of Appeals had decided that Sergio had no rights under our Constitution.

Third, even if Sergio’s rights were violated, did the Agent have “immunity … from civil liability.” They would have immunity if “their conduct ‘does not violate clearly established … constitutional rights.” So the fourth question is whether killing foreigners across the border violates any clearly established rights?

Along the way the Court commented that some of the issues in the case  are “sensitive and may have consequences that are far reaching.” Sounds like the Court was thinking about foreign relations. The Bible just says “justice, justice shalt thou pursue.”[3]

The Court finished by noting that the case “result[ed] in a heartbreaking loss of life” but thought the Court of Appeals should think about those issues before the Supreme Court reached any final resolution about the issues in the case:

  • whether foreigners have any rights that American officials are bound to respect;
  • whether there is any remedy for murder;
  • whether murder by a government official is a clear violation of a constitutional right?

Abroad, and we use the same term when describing behavior in other countries, people who are protected from any responsibility for the harm they do are described as having impunity. It does not describe freedom. It describes lawlessness, in countries run for crime bosses and rapacious masters.

Think now about shootings of Americans in America by police officers, shootings of Americans with their backs turned, with their hands up, with their house keys in their hands. Are we now a nation with impunity? Does freedom still live here or are too many people here forced to bow, scrape and beg those with the power to kill. If there are people who, in the language of Dred Scott, have “no rights which … [American officials are] bound to respect,”[4] does that mean that they and we are treated like the slave in Dred Scott?

[1] Hernandez v. Mesa, U.S. Sup. Ct. No 15-118, decided June 26, 2017.

[2] Brief for Amici Curiae Legal Historians in Support of Petitioners in Hernandez v. Mesa, U.S. Sup. Ct. No 15-118.

[3] Deut. 16:20.

[4] Dred Scott v. Sandford, 60 U.S. 393, 407 ((1856).


Is America For Sale? Is Trump Motivated to Sell Us Out?

June 20, 2017

Two lawsuits have now been filed over Trump’s violation of the emoluments clause.[1]

Emoluments is an eighteenth-century word rarely heard before Trump became president. It’s a rare president who ever came into office with assets that could motivate him to sell us out. And still rarer the president who refused to give up all interests in such investments. But Trump has refused to sell his assets or put them in a blind trust. His assets therefore are at risk here and abroad and their value is closely related to Trump’s dealings with foreign powers and domestic corporations and investors.

Foreign governments understand how to press his buttons. Like any lobbyist who curries favor with those in power, these governments understand that they may get better treatment if they patronize his enterprises. China granted numerous trademarks and other business advantages to Trump enterprises. Officials from China and many other countries use his hotels, lease or buy facilities from him, dine at his restaurants and thereby shift substantial amounts of money to him as well as help him publicize his Mar-a-Lago resort in Florida. All of this has raised the market value of Trump’s properties as all these foreign and domestic supplicants want to show Trump how they can feather his nest.

Now Trump has reversed positions he took during the campaign and his first weeks in office toward his foreign and domestic business partners and authorities. He reaffirmed the one-China policy, and backed off China’s expanding control over the South China sea. Trump abandoned his criticism of Saudi Arabia, and fell solidly behind it in a dispute with Qatar, where the U.S. has its largest regional base. Trump consistently excludes Saudi Arabia from his immigration bans though Saudis have dominated the terrorist events of the past two decades.

Was that because it was good for America or because foreign governments and officials gave him the rights he wanted for his enterprises abroad. With Trump we can never know.

The name for Trump’s behavior is corruption. Corruption includes using public power to gain personal wealth or profit, or accepting benefits that could lead a public official to take action contrary to the public interest. It’s almost impossible to prove a bribe – I’ll do this for you if you give me that. Politicians, lobbyists and other supplicants avoid the language of a deal and let the quid pro quo be inferred and implied. Numerous federal, state and local statutes prohibit public officials from accepting anything of value precisely because the quid pro quo is never stated but  always understood.

Whether Trump’s motives are pure or disgusting, he is in fact showing everyone how private advantage can be extracted from public office and laying America open to corruption. In many countries you get no help from government officials without bringing ever more costly “presents” to them. Trump’s behavior threatens to extract our energy and innovation for the benefit of Trump, his family and friends. That’s the essence of corruption and corrupt governments reduce their peoples to beggars.

This country worked hard to ensure an honest, dedicated, civil service. Despite all the jokes about government employees, our civil service has been the envy of most of the world. All of us will pay for Trump’s private empire.

— This commentary was broadcast on WAMC Northeast Report, June 20 2017.

[1] Citizens for Responsibility and Ethics In Washington v. Donald J. Trump, U.S.D.C., S.D.N.Y., Jan. 23, 2017, https://s3.amazonaws.com/storage.citizensforethics.org/wp-content/uploads/2017/01/23140054/CREW-DJT-Final.pdf and District of Columbia v. Trump, US.D.C., D.Md., June 12, 2017, https://www.nytimes.com/interactive/2017/06/12/us/politics/100000005161070.mobile.html. And see Jackson Diehl, China and Saudi Arabia have seduced Trump into being their sweetheart, Washington Post, June 11, 2017, https://www.washingtonpost.com/opinions/global-opinions/china-and-saudi-arabia-have-seduced-trump-into-being-their-sweetheart/2017/06/11/d4001330-4c67-11e7-a186-60c031eab644_story.html?utm_term=.dae3f8d62c7a, Sui-Lee Wee, Trump Adds More Trademarks in China, New York Times, June 14, 2017, B5, available at https://www.nytimes.com/2017/06/13/business/trump-china-trademarks.html, and David Marsh, Trump’s China First Policy, MarketWatch, June 6, 2017, http://www.marketwatch.com/story/trumps-china-first-policy-2017-06-06.

 


Freedom for the Boss; Drudgery for the Rest of Us

May 16, 2017

I keep looking for ways to talk with supporters of the Administration. President Carter started the deregulation frenzy. That has become half of the Republican cut-and-deregulate refrain ever since, consistently repeated by the current White House and the Republicans in Congress. I’d like to focus on the things that will affect those of us who are, financially speaking, ordinary, middle-class Americans.

Here are changes the Administration and congressional Republicans are considering that affect working conditions:

  • The White House Office of Information and Regulatory Affairs has been postponing and considering cutting down a Labor Department rule that limits “workers’ exposure [to] toxic material, which can cause a deadly lung disease.”
  • The same White House Office is also “considering a proposal to roll back protections for workers in construction and shipbuilding.”
    • Those rules allow our employers to save cash by risking our health.
  • The Working Families Flexibility Act … would give employees a choice between taking time off or being paid time-and-a-half when they work more than 40 hours in a week.”
  • Either way, Republicans oppose changing overtime rules to raise eligibility for overtime above the current $23,660 per year.
    • Those rules allow our employers to save cash by shortchanging us.

Here are some that affect the health of financially ordinary Americans:

  • The Administraton has already taken steps to “roll back healthy school lunch standards”
  • The new head of the FDA “has invested in or consulted for dozens of healthcare companies” which suggests that the Food and Drug Administration won’t be much help in preventing unnecessary complications and expenses.
  • The House health care bill would eliminate Obamacare requirements that insurance plans cover prescriptions drugs and mental healthcare. Like all insurance, drug and mental health care coverage are intended to protect people from unplanned changes in the costs of survival.
  • Senate Republicans narrowly lost an effort to roll back a regulation that “limit[s] methane emissions from oil and natural gas drilling.” Methane is even more damaging to the climate than carbon.
    • Those rules risk our health for the sake of other people’s profits.

On savings for retirement:

  • “Trump’s Labor Department delayed the so-called fiduciary rule, ordering financial advisers to act in … [your] best interest[s] … [if you] are saving for retirement.”
  • The CHOICE Act would allow the banks that brought us the crash of 2008 to opt out of regulations adopted after the crash and intended to prevent another. And the bill renames the Consumer Financial Protection Bureau and “reduces its power to enforce pre-existing consumer protection laws.”
    • Those rules risk our financial security for the sake of other people’s profits.

Meanwhile, Republicans on the Supreme Court show little respect for working men and women.

  • With Breyer’s help they have blessed “Professional debt collectors … [who] built a business out of buying stale debt, filing claims in bankruptcy proceedings to collect it, and hoping that no one notices that the debt is too old to be enforced by the courts.”
  • The Court continues to apply a 1925 statute intended for interstate business transactions to consumer contracts and the Court bars state regulation entirely.

What Republicans continue to give us is freedom for the boss and drudgery for the rest of us. As the old folk song has it, “same song, second verse, could get better but it’s gonna get worse.”

— This commentary was broadcast on WAMC Northeast Report, May 16, 2017.


Organize to Vote

May 2, 2017

All of those who took part in recent demonstrations – the women’s marches, Black Lives Matter and others aimed at protecting civil liberties, immigrants, the vulnerable and the less advantaged – we are not a minority.

But demonstrations aren’t enough. This country is ruled by ballots. Protests matter when ballots threaten. Nonvoters are routinely discounted. So the next step is to organize to vote.

That’s where demonstrations become a major opportunity. Those who marched can be helped to register or they can help others register and vote.

Marchers need to be asked: whether they are registered to vote; whether they are registered at their current address; whether they are registered to vote in the primaries; whether they have been getting to the polls and voting; and whether they know others, in this or any other state, who need help or encouragement to register and vote. Would you get registration forms for others?

Demonstrations can lead to votes in other ways.

Demonstrate at the Board of Elections to make a difference by showing we want to vote, we’re signing up to vote, we’re ready to vote. Let’s show up where it matters.

Demonstrate outside the 100 foot or other state defined zone where electioneering is prohibited, showing and sharing the fact and the joy that we voted, and you voted, and we performed our civic duty for each other and we did it together and we’re celebrating – those are demonstrations that can make a difference.

What’s crucial about the demonstrations we all took part in doesn’t end with the message. That’s the beginning; that’s what got us fired up and brought us together; that’s what made clear our commitment and our shared sense that acting as a people is empowering. But what matters is converting that commitment – the joy, the fire in our hearts and the messages we marched for – into votes.

Democracy depends on what happens at the voting machines. It’s run by votes and the threat of votes. Even campaign contributions are ultimately about votes. Voices are most powerful when they lead to votes. If we vote, we count. If we stay home in disdain because we’re not satisfied, we’re politically irrelevant. Vote. Count. Take back our democracy – for us, for all of us, for the people. Don’t let the moneychangers and the slick talkers take the forms of democracy for their own benefit. We vote; we count; and we celebrate.

Why look at that now? Because the organization that makes voting happen, the organization that makes the voices of the people matter at the polls and on the ballots, all that organization starts way in advance. Because every state has its deadlines. And back before the deadlines, organization is not instantaneous. Let’s create our political snowball. Let’s terrify the politicians with our strength so that they’ll actually have to behave democratically, according to the rules, principles and methods of democratic government.

Wouldn’t that be refreshing!

— This commentary was broadcast on WAMC Northeast Report, May 2, 2017.


What should we expect of law, judges and judicial nominees

April 8, 2017

People often ask me whether something is constitutional. I often respond by asking what they mean. Our Constitution is only as good as the people handling it. Beyond that it’s a piece of paper, that bends, folds and tears. The Founding Fathers often referred to constitutional language as parchment barriers.

All law is about prediction. What will the Court, or a judgment do and will the president or the governors enforce what they decree? The 13th, 14th and 15th Amendments became meaningless for decades after President Hayes removed the troops from the former Confederate states. Brown really meant something when Eisenhower sent the troops to Little Rock.

Sure, I think the Constitution should mean more; it should protects us. But I have only the power of argument. When I argue in the courts, I don’t just tell them what I think is right – I argue in ways I think will influence the court I am addressing. I learned that lesson years ago after writing a brief on behalf of several political scientists to explain an aspect of the 1st Amendment. We were only appearing as friends of the court, but our views carried the day on the Court of Appeals. One of the judges wrote that his reasons were well stated in our brief. Of course I thought that judge was a genius. But though we won on the Supreme Court, the grounds of victory had nothing to do with our brief. Plaintiff’s attorney crafted his argument to fit the specific concerns of the justices who would support our position. We eked out a 5-4 victory but when those justices left the Court, it was quietly overruled. It all depends.

Republicans pronounce that sympathy is no part of law, but then where is justice? They claim bound to follow only ancient dictionaries to tell us how two-century old language should be read now, assuming the ancients wouldn’t lift a finger about our problems. Or they claim to rely on precedent. But precedent isn’t self-justifying. We distinguish the authority of Brown v. Board of Education from the  horror of Dred Scott or Plessy v. Ferguson because Brown accurately stated enduring values and the others did not. That’s a judgment about decency and has nothing to do with balls and strikes. This is not a baseball game; language interpreted without decency and humanity slanders the people who wrote and adopted it. Nominees hiding behind precedent hide their heartlessness behind smokescreens and deny the obvious, that their values, or lack of them, will determine how they see and shape the law.

Gorsuch could not tell you that because his sense of good and evil are far from what most Americans would accept. So he and his supporters rely on empty jargon about precedent. But judges exercise judgment about precedent just as they do about language. That’s why we need judges with good judgment, not judges claiming to be logicians with computers who derive answers automatically, unthinkingly and without reference to consequences. That refusal to care is the bastardization of law. When Justice Blackmun protested a decision that left no one  responsible for the helplessness of a small boy, he wrote “Poor Joshua” with understated eloquence. Poor Joshua indeed. Law, like the Tin Man in the Wizard of Oz, needs a heart.

— This commentary was broadcast on WAMC Northeast Report, April 4, 2017.


Chemicals, Infertility and Morals

March 27, 2017

You’ll be subjected to rolling commentary on innumerable aspects of the Gorsuch hearings. I prefer, as I often do, to address deeper aspects of our competing value systems that underlie the surface of our political battles. One is the human impact of our treatment of planet earth.

Human behavior is injuring our environment. But nature has ways of winning the battle. It turns out that our fertility is as fragile as the eagles’ before DDT was banned, that endocrine disruptors and other environmental toxins are damaging our ability to reproduce – they’re in our kitchens, pesticides and other purchases.[1] That can be a powerful counterattack against the human activity that is warming the globe. If we become infertile and our population plummets, America will become a sad, lonely, vulnerable place, and, quite likely, conquered by any healthier peoples left.

Nevertheless, I’m sick of making consequential arguments, to tell people that if we don’t do this or that, bad things will happen. I think the arguments I’ve been making are air tight. But the science floats over people’s heads. A women, well-enough educated to know better, told me that she chose not to think about the environment because it was too big to deal with. Her comment made clear to me that reason doesn’t reach nearly enough people. Science won’t solve anything unless we accept and act on it.

So let’s address the moral issue. No one, no business, no company or corporation has the right to put toxins in the environment, chemicals that can make it impossible for people to reproduce or kill or maim those of us alive, or make us produce deformed and handicapped children – no one and no company has that right. And they don’t have the right to change the subject, throw smoke in our eyes, saying something else is the problem when they aren’t bothering to check. We’ve had enough lies. This is not a football game where deception is a winning strategy. In human life, deception is sinful, immoral, totally unacceptable. Taking risks with other people’s lives and making excuses for it is criminal.

If there is an economic problem, then, as many labor leaders have suggested for decades, let’s share the work, or create other jobs that don’t do damage – jobs aren’t an excuse for hurting people. Hurting people isn’t a job; it’s a crime. People aren’t entitled to work at criminal enterprises.

The Cabinet and the President and the Members of Congress and the state and local governments aren’t entitled to commit the crime of murder by poisoning the environment. Pro-lifers and liberals should be united on the environmental front given the enormity of the killing, of adults, children, fetuses and sperm. We’ve all seen multiple films with populations at risk and the starship or other craft working hard to prevent destruction of civilizations. The authors of those stories were trying to portray the immorality of destroying civilizations, and they were warning us of the likelihood that we would face that problem.

How many of us are moral enough to deal with this issue? Isn’t it criminal to support the rape of the air, land, food and water that give us life? Isn’t it criminal to carelessly poo-poo the dangers? How many of our corporate and elected officials are criminals?

Those with so little respect for the lives of fellow human beings must repent, stop and stop those who do, immediately and completely.

— This commentary was broadcast on WAMC Northeast Report, March 21, 2017.

[1] https://www.nytimes.com/2017/03/11/opinion/sunday/are-your-sperm-in-trouble.html.


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