I’m an Affirmative Action Baby

September 20, 2017

I went out for an early walk recently. One of the things I like about taking a walk is the way it clears the mind. This morning, the fog lifted and I realized with great clarity that I was an affirmative action baby. About a decade before I applied, Princeton had made the decision, not just to eliminate the quota that limited the number of Jews admitted, but to actively encourage Jews to come.

When my high school college advisor suggested I apply to Princeton I was surprised. Princeton was not on my radar. But all the top students at Midwood wanted to go to Harvard, so I figured it was worth a try. I will never forget the day my parents drove me to campus for an interview. I expected to be grilled on whether I was good enough. The admissions office was on Cannon Green, cattycorner from Nassau Hall where the 1783 Treaty of Peace ending the Revolutionary War was signed. I don’t remember the man’s name, but I think he was an assistant Dean. And the whole interview was about trying to convince me to come.

I walked out and told my parents, in a tone that must have revealed both my joy and surprise, that they want me to come. Is it ever great to feel wanted. After that, there was never any question in my mind where I was going. I remember trying to conceal my sense of joy from fellow students at Midwood High – I didn’t want to be taken as bragging. And by the way, Yale Law School treated me much the same way four years later. This was not the education I expected. But I would have had to be dumb to turn it down.

It doesn’t seem to have occurred to anyone to challenge my credentials because Princeton decided to encourage Jews to apply and come. I think it was a good bargain for everyone. As a group we were hungry for knowledge, opportunity and a chance to make the world better. And Princeton designed its program so that we students got to know our professors. Some of them invited us to their homes; some of us invited them to dinner with our friends.

Only one African-American graduated with our class. So I was proud of the school when it made the same decision to bring African-Americans to campus and then did it again with women. That’s quite a transformation between about 1944 and 1969. And it didn’t hurt a bit. Princeton is still at the top of everybody’s chart of the best schools to go to 55 years after yours truly graduated.

When I got to law school, I really got to experience and appreciate the value of diversity. Students came from literally all over the world to study with a couple of my teachers. I learned a great deal. Some of it was comic, like the student who wanted to work for Pakistan in order to promote the independence of Kashmir, directly contrary to Pakistani policy. One of my fellow students nearly burned my stomach with Indian spices. And I was terrified to introduce my dates to him because they all thought he was gorgeous. But they all enriched my life, my understanding and my appreciation of different peoples.

So yes, I’m an affirmative action baby. I’m not the least bit embarrassed about it. I hope I’ve justified their confidence in me – I’ve certainly spent my life trying.

— This commentary was broadcast on WAMC Northeast Report, September 19, 2017.

 

 

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Book Picks for heart and mind

September 8, 2017

I’d like to recommend a pair of books, the first partly for very personal reasons. I worked with Lew Steel, who wrote The Butler’s Child, for four months at the legal office of the NAACP between graduating from law school and heading for Peace Corps training. I know many of the people he writes about and have enormous admiration for all of them. We knew that Lew had money though I didn’t know it came from a family connection to one of the Warner Brothers. We followed different career paths but not different goals. So for me his story is very personal. It’s a beautifully written book about the Civil Rights struggle. Bless Lew both for the memories and for carrying on the struggle.

The other by Bruce Bueno de Mesquita and Alistair Smith is called The Dictators’ Handbook and is the best explanation I’ve seen of what is going wrong in Washington. I met Bruce through a mutual friend but don’t know him well – this is all about admiration for his work and their ability to write a very readable and widely recognized book that beautifully explains the different incentives and behavior of autocrats and democrats. Written several years before Trump, the Donald is reflected on every page. Well worth reading.

Steve


Taking care of each other

September 5, 2017

Americans have been celebrating the reaction to Hurricane Harvey as an example of Americans taking care of each other. There is much to celebrate. But we have also wrestled for centuries with the problem of taking care of each other – the out of work, the working poor and others struggling to stay afloat.

An economic reversal in the lives of many of us is just temporary. But it does permanent damage when it unravels peoples’ lives, leaves them with debts that spiral out of control so that they cannot hope to pay, or leaves them homeless, in broken families, or housed in barred cells. When people have little, events that would be a minor inconvenience for most of us can drop them over the cliff, unable to climb back. As the Founders recognized, all of us can expect some of our offspring to be poor. So what are the options?

Welfare has been cut back but some pieces of a social safety net remain, mostly funded by the federal government. One reason they are funded nationally is because some local governments don’t want to do anything about the problems of poverty. Another reason is that the problems fall unevenly on local governments. The process of creating suburbs and new communities is a process of seceding from the places where people have problems and therefore avoiding any responsibility under our laws about local government. By shifting the obligations upward to the feds we all share those problems at least to some degree.

We could provide jobs. Instead of just giving things and money out, we could take advantage of the time, labor and skills of people who are otherwise out of work, to get some useful things done. But the city can’t save the money that goes into the social safety net because that money isn’t city money. Albany’s Mayor Sheehan pointed that out at a house party before she was first elected. Fair point. But turning welfare money over to localities would invite them to divert the cash. Some form of cooperative federalism might be better for everyone.

Public services for everyone are also an option. We have created many sorts of services that all of us have rights to. Clean water fit to drink is a lot cheaper for everyone than buying it in bottles – provided that government isn’t asleep at the switch and doesn’t let the water supply fill with lead and other poisons. Sewage systems make everyone better off than a crazy quilt of individual efforts to deal with garbage, their own and their neighbors. And it saves a lot of money both because of economies of scale and because sewage can breed disease for all of us. Roads, bridges, sidewalks, other transportation amenities, libraries, postal services and regulated public utilities like phone and electrical service make life better for everyone. And all of them make life cheaper which is especially important for the impoverished.

In other words, making some things available for all of is good for us all and are also ways of helping the least among us. That used to be true of the health care system until we privatized it, demolished the many county, municipal and not-for-profit hospitals, only to try to restore some of the benefits of a public health system with Obamacare.

Republicans call measures like that socialism. I just call it smart, efficient and decent – Americans taking care of each other.

— This commentary was broadcast on WAMC Northeast Report, September 5, 2017.


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.

 


Can American Democracy Survive Trump?

June 13, 2017

Will democracy in America survive?

First remember that democracy matters. No human institutions are perfect but democracy makes it possible to remove officials without going to war. Democracy doesn’t mean anyone alone can make good things happen. Democracy reflects the collective power of people. Collectively, if the rules are followed that protect speakers, publishers, candidates and fair elections, democracy gives us the possibility – though nothing is certain – of throwing the bastards out. That’s important.

The survival of democracy depends on leaders, institutions, and the circumstances that bring out the best and worst in us. What chance do we have?

We should have been warned when Trump repeatedly expressed admiration for dictators in Russia, the Near East and Eastern Europe, when Trump invited an enemy to break into a candidate’s email and interfere in an American election, and suggested his supporters use their “Second Amendment rights” to put him into power. We should have been warned when Trump put people with strong ties to hostile powers at the top of his Administration and gave them access to American military and intelligence secrets. We should have been warned when Trump put an attorney hostile to justice in charge of the Justice Department and installed many military leaders in his government. We can’t rely on this casino mogul turned would-be strongman to preserve American democratic government.

It’s unclear whether our institutions will protect us. The Turkish military protected Turkish democracy for a century, but that tradition is now gone. Members of Trump’s party control both houses of Congress where their commitment to their party compromises their commitment to democracy. Congress seems unlikely to protect us. The Court is dominated by members of the President’s party and their treatment of the Constitution’s due process clauses has been more a threat to decent citizens than a limitation on the powers of would-be dictators.

The circumstances in which we find ourselves have ripped democracies apart across the globe. The concentration of wealth and power we have long seen and condemned abroad has become a reality here. The more that wealth and power are concentrated, the more that the wealthy and powerful circle their wagons to protect their ill-gotten gains against the rest of us, spewing nonsense about supposed trickle-down economics as if it were fact and counting on people’s gullibility. Concentration also makes people desperate, and desperation fuels the mirage of lies and makes too many of us complicit in our own subjugation.

Without reason to rely on the leaders, institutions, or circumstances, that leaves us. Can we square our shoulders and steady our minds to resist the steady babble of nonsense and not just listen to the words but watch what those in power are doing?

When you look at behavior instead of giving a pass to the mogul in the White House, you begin to notice that his actions belie his words. He has no sympathy for coal miners or others who have been shunted aside by changes in the economy but only to protect his friends’ wealth and power from us. Birnie put his finger on the problem and Trump now aggravates the concentration of wealth and power that are taking apart the lives we thought we’d built. So-called “free markets” protect the marketeers. So-called “trickle down economics” protect the concentrations from which the trickles are supposed to flow. And the flood of inconsistent tweets boggle the mind and conceal the reality.

Can we uncover the deceptions with strong minds and clear eyes while the casino mogul in the White House gambles our birthright.

— This commentary was broadcast on WAMC Northeast Report, June 13, 2017.


What’s to blame for our divided nation? The cause can also be the cure

May 16, 2017

Woops! Because the original post was illegible and the link broken, I’m reposting this link to my description of the law’s contribution the polarization of America. Here, I hope, is a working link :

“What’s to blame for our divided nation? The cause can also be the cure” [click here] which appeared on TheHill.com. Enjoy.


Peace Corps and Legal Services

April 11, 2017

The Trump Administration hasn’t included the Peace Corps in its proposal for fiscal year 2018. It proposed cutting the international affairs budget by nearly a third.[1] It struck funding for the Legal Services Corporation which provides funds for poor people to defend what little they have. And, as we are all aware, it has advanced its war on truth by trying to cut the budget of National Public Radio. None of that will save much in the budget but it will damage the country and make life coarser and less secure for the people in it.

On Feb. 27, 2017 “retired three and four star flag and general officers from all branches of the armed services” wrote congressional leadership “to share our strong conviction that elevating and strengthening diplomacy and development alongside defense are critical to keeping America safe.”

These generals and admirals told Congress from their own experience “that many of the crises our nation faces do not have military solutions alone – from confronting violent extremist groups like ISIS in the Middle East and North Africa to preventing pandemics like Ebola and stabilizing weak and fragile states that can lead to greater instability” as well as “refugee flows that are threatening America’s strategic allies in Israel, Jordan, Turkey, and Europe.”

These military officers made it plain that “The military … needs strong civilian partners in the battle against the drivers of extremism– lack of opportunity, insecurity, injustice, and hopelessness.” From their experience, “The State Department, USAID, Millennium Challenge Corporation, Peace Corps and other development agencies are critical to preventing conflict and reducing the need to put our men and women in uniform in harm’s way.…”

The Trump Administration’s blueprint for FY2018 for 150 international affairs budget functions included no budget proposal for the Peace Corps. According to the Congressional Research Service, the nearly quarter of a million Peace Corps Volunteers who have served in 141 countries provide a form of “public diplomacy” for America, not to mention the “short-term … [postings for] emergency, humanitarian, and development assistance at the community level … including post-tsunami Thailand and Sri Lanka and post-earthquake Haiti.”. And they bring back with them and help the rest of us understand other parts of the world that few of us get to see. Both the specific attack on the Peace Corp and the general attack on diplomacy are part of the foolish short-sightedness of the current Administration.

Apparently the Administration doesn’t like poor people in the United States any more than abroad, as it made clear by trying to end the Legal Services Corporation. In commentary in the Times Union, Dean Alicia Ouellette of Albany Law School just stuck to the facts:

“People facing life-altering crises — parents losing custody of their children, families facing wrongful foreclosures, veterans wrongly denied benefits, the elderly scammed of life savings by fraudulent businesses, farmers struck by natural disaster — need the help of lawyers.”[2]

But for the Trump Administration, if you’re too poor to hire an attorney, you don’t deserve justice.  It’s not just the people who are deprived of their rights; it’s the public as well. According to a Massachusetts study, government funding of various types of legal representation showed returns of from two to five times the amount expended on counsel, depending on the area of legal services, not including the very significant benefits to state residents.[3] Those benefits can be very significant. Dean Ouellette cited a study by the New York City Bar Association showing savings to the city of more than half again the cost of providing legal help to people who can’t afford it in a variety of non-criminal matters. Other studies similarly show that the cost of erroneous convictions vastly exceeds the cost of providing counsel.[4]

For this president, no injury to the public or to the vulnerable is too great.

— This commentary was broadcast on WAMC Northeast Report, April 11, 2017.

[1] Congressional Research Service, https://fas.org/sgp/crs/misc/RS21168.pdf.

[2] http://www.timesunion.com/tuplus-opinion/article/Funding-legal-services-for-the-poor-benefits-all-11049978.php.

[3] INVESTING IN JUSTICE A ROADMAP TO COST-EFFECTIVE FUNDING OF CIVIL LEGAL AID IN MASSACHUSETTS, A REPORT OF THE BOSTON BAR ASSOCIATION STATEWIDE TASK FORCE TO EXPAND CIVIL LEGAL AID IN MASSACHUSETTS, at 19-24 (2014) available at http://www.bostonbar.org/docs/default-document-library/statewide-task-force-to-expand-civil-legal-aid-in-ma—investing-in-justice.pdf.

[4] James R. Acker, The Flipside Injustice Of Wrongful Convictions: When The Guilty Go Free, 76 ALB. L. REV. 1629, 1631-36, 1708-09 (2012/2013).


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