Judge chides attorney for not wearing coat

An Arkansas Supreme Court justice earlier this month called out a professor-attorney for not wearing a coat in a Zoom argument.

Associate Justice Courtney Rae Hudson took to task attorney and Professor Robert Steinbuch, Arkansas Little Rock, my colleague and past co-author on freedom-of-information works (book, essay), first, for not wearing a coat over his button-down shirt in the Zoom argument on February 2, and then for not having asked advance permission to use a demonstrative exhibit. She had the court and counsel wait painfully while Steinbuch and his attorney-client fetched coats.

Steinbuch probably should've worn a coat. He told Justice Hudson he had not because it interfered with his handling of the exhibit, a statutory text, within the small space of the camera view. Good excuse, bad excuse; either way, Justice Hudson's handling of the matter was condescending and, coming as it did after Steinbuch's argument, felt more personal than professional. My impression as a viewer was that Hudson was the one who came off looking worse for the exchange.

Being an aggressive advocate for transparency and accountability in Arkansas, Steinbuch has many allies in mass media, and they were not as gentlemanly about what went down as Steinbuch was. The aptly named Snarky Media Report made a YouTube video highlighting the exchange.  As Snarky told it, "Justice Hudson pulled out her Karen Card." Snarky also observed, with captured image in evidence, that "[s]everal times during the hearing Hudson appeared to be spitting into a cup."

More seriously, Snarky took the occasion to highlight past instances in which Hudson's ethics were called into question. Hudson (formerly Goodson), who was elected to the court in 2010, and her now ex-husband, a class action attorney, took two vacations abroad, valued together at $62,000, at the expense of Arkansas litigator W.H. Taylor (Legal Newsline). Hudson did report the gifts, and she said she would recuse from any case in which Taylor was involved.

Very well, but my suspicions of bias run a bit deeper. Hudson's vacation-mate ex, John Goodson, is chairman of the board of the University of Arkansas. (Correction, May 9, 2023: I'm told that Goodson ended his service on the board a year or so ago; I've not been able to ascertain the date.) One of Steinbuch's tireless transparency causes has been for Arkansas Freedom of Information Act access to the foundation funding of the university system in Arkansas, especially the flagship University of Arkansas, Fayetteville. Indeed, Steinbuch wrote just last week (and on January 29), in his weekly column for The Arkansas Democrat-Gazette, about that very issue in connection with secret spending at Arkansas State University. University System counsel have fought ferociously and successfully for decades to stop any lawsuit or legislative bill that would open foundation books to public scrutiny.

Goodson also has what the Democrat-Gazette characterized in 2019 as "deep political and legal connections around the state" with disgraced former state Senator Jeremy Hutchinson. Hutchinson is a nemesis of former Arkansas politician Dan Greenberg (a longtime friend of mine). After Greenberg lost the senate race to Hutchinson in 2010, Greenberg sued a local newspaper, alleging a deliberate campaign of misinformation. Steinbuch supported Greenberg in the suit. Though Greenberg was unable to demonstrate actual malice to the satisfaction of the courts, discovery in the suit revealed a problematically cozy relationship between the newspaper editor and Hutchinson.

The day after the oral argument in Steinbuch's case, Hutchinson was sentenced to 46 months in prison on federal charges of bribery and tax fraud—ironic, given that a false report of ethical misconduct was a rumor that Hutchinson had sewn about Greenberg in 2010. 

I don't know; maybe Justice Hudson just gets really hung up on men's attire.  She does hail from a conservative corner of Arkansas.

But a wise friend once told me, "Nothing in Arkansas happens for the reason you think it happens."

The case is Corbitt v. Pulaski County Jail, No. CV-22-204 (Ark. oral arg. Feb. 2, 2023).

Program to examine Genocide Convention, Ukraine

The Jagiellonian Law Society has announced a follow-up seminar, on March 14, 2023, on the subject of Polish-Jewish attorney Rafał Lemkin, his role in creating the UN Genocide Convention, and the relevance of Lemkin and the convention to the war in Ukraine.

In a previous seminar in December, speakers detailed the historical context of Lemkin's life and work. A featured guest in the March program will be the Hon. Stephen J. Rapp, U.S. ambassador-at-large for global criminal justice from 2009 to 2015, and more recently a visiting fellow of practice at the Blavatnik School of Government, University of Oxford.

Here is the program description and information about registration, free but required, CLE credit available, from the Jagiellonian Law Society.

We would like to invite you to another webinar on Raphael Lemkin, Genocide, and the Modern World, keynoted by Ambassador Stephen J. Rapp and featuring distinguished international faculty!

Rafał (or Raphael) Lemkin was a Polish Jewish lawyer best known for coining the term "genocide" and a key person behind the UN Genocide Convention. For that work, he was twice nominated for the Nobel Peace Prize. On the 50th anniversary of the Convention entering into force, Lemkin was honored by the UN Secretary-General as an inspiring example of moral engagement.

The upcoming seminar is the second part of the webinar series discussing the crime of "genocide" and its applicability to the current events in Ukraine and beyond. We will discuss whether Lemkin’s ideas are helpful in the prosecution of mass murders and other crimes aimed at eliminating or erasing entire groups of people. We will also address the likelihood of a successful prosecution of atrocities committed in Ukraine, be it as "war crimes," "crimes against humanity," or a "crime of aggression," via either international or national courts or via special tribunals.

The webinar is presented by the Jagiellonian Law Society with support from the Kosciuszko Foundation and co-sponsored by many organizations, among them ABA, NYSBA, UBA, NJSBA, etc.  It is free and open to the public. Spots are limited. Registration is required.

We are honored and proud to announce that Ambassador Stephen J. Rapp, the United States Ambassador-at-Large for Global Criminal Justice, will be our keynote speaker, and we are honored and delighted to present to you our most distinguished international Faculty:

Professor Agnieszka Bieńczyk-Missala, Professor in Political Sciences at the University of Warsaw

Prosecutor Thomas Hannis, former lead prosecutor, UN International Criminal Tribunal Yugoslavia

Professor A. Dirk Moses, Anne and Bernard Spitzer Professor of Political Science at the City College of New York, CUNY

Professor Ana Filipa Vrdoljak, The UNESCO Chair in International Law and Cultural Heritage, Technical University, Sydney, Australia

Dr. Mykola Yurlov, International Humanitarian Law and Policy Advisor, member of the Council of the Ukrainian Bar Association in Kyiv

Moderator: Dr. Elizabeth M. Zechenter, Visiting Scholar, Emory University

Time: Mar 14, 2023, 12:00 PM in Eastern Time (US and Canada)

To Register 

We offer Continuing Legal Education (CLE) credits. If interested, please contact Jagiellonian Law Society.

Nigerians pin high hopes on horse-race election

Voters bear PDP flags at a rally in Ilé-Ifè, Osun State, in December.
RJ Peltz-Steele CC BY-NC-SA 4.0

Update, March 1, 2023: Nigerian election authorities declared Bola Tinubu of the incumbent APC party as President-elect. Al Jazeera has data. Obi prevailed in Lagos, Abuja, and a band of southern states including Anambra, but turned in 6.1 million votes to Abubakar's 7 million and Tinubu's 8.8 million, according to official numbers. PDP and Labour vowed legal challenges after an election marred by technical difficulties and incidents of violent voter suppression. The U.S. State Department issued a press release.

Nigerians go to the polls in a landmark presidential election tomorrow, Saturday, February 25.

The election is landmark for many reasons. Nigeria is Africa's most populous nation. Polls show a horse race. The three-way contest with no incumbent offers an outsider option that's especially appealing to young voters. Beset by social and economic crises, Nigeria is perceived as standing at a crossroads from which ways lead either to catastrophic collapse of the rule of law or to sea-change development into continental economic powerhouse. And, unfortunately, Nigerian elections even in the best of times notoriously coincide with violent protest.

The three leading candidates are Atiku Abubakar, Bola Tinubu, and Peter Obi (linked to BBC profiles). I went to Nigeria in December to get the lay of the land.

I visited the Osun-Osogbo Sacred Grove, one of two UNESCO
World Heritage Sites in Nigeria. Regrettably, the other, the
Sukur Cultural Landscape, is not in a safely accessible region.
RJ Peltz-Steele CC BY-NC-SA 4.0

Atiku Abubakar is no stranger to the election process, having run unsuccessfully before against outgoing President Muhammadu Buhari. Abubakar represents the center-right People's Democratic Party (PDP), which was the affiliation of Buhari predecessor Goodluck Jonathan. The PDP tends to conservative economic and social policy, meaning, respectively, deregulation and religious values. The latter is especially significant in Nigeria, because outbreaks of violence and the government's loss of control of northern states are complications principally of religious sectarianism. Both Abubakar and Buhari are Muslim; Jonathan is Christian. Trying to balance the demands of both the Islamic north and the Christian south simultaneously, the PDP has favored deference to regional religious authorities through laissez-faire federalism in social as well as economic policy.

A car in Ilé-Ifè advertises PDP candidates. Ilé-Ifè is a spiritual home of the Yoruba people.
RJ Peltz-Steele CC BY-NC-SA 4.0

At the Central Mosque in Ilorin, Kwara State.
RJ Peltz-Steele CC BY-NC-SA 4.0

Bola Tinubu is the candidate of the All Progressives Congress (APC), the party of Buhari, who also was a military head of state in the 1980s. A millionaire, accountant, and former governor of Lagos, Tinubu is American educated and has past ties to U.S. mega-corporations such as Arthur Anderson, which collapsed after the Enron scandal, and ExxonMobil, specifically, Mobil Nigeria, which bought its way out of the environmental mess of the Niger Delta for $1.3 billion last year. A Muslim, Tinubu hails from southwestern Lagos and Oyo State. To broaden his appeal, he chose a Muslim running mate from the north, though Christian voters are disenchanted with the break from the tradition of a spiritually split ticket. The APC identifies with social-democratic economic policy. A favorite of the populous Yoruba ethnic group, Tinubu boasts of his business acumen, having brought record-breaking foreign investment to Lagos. But his ties to big business and the political establishment cause many, especially younger voters, to eye him warily. As well, kidnapping and violence in Nigeria have reached into even the southwestern states of Oyo and Osun, formerly regarded as safe, surfacing discontent with the incumbent APC's poor record on basic security.

The Nigerian capital of Abuja is developing an arts-tech district,
which I visited in December. The capital was moved in 1991 from
Lagos to Abuja, a planned city at a central geographic location,
selected for practical and symbolic reasons to unite Nigerians
of different ethnic and religious identities.
RJ Peltz-Steele CC BY-NC-SA 4.0

Peter Obi is the wild card. At 61, he's a kind of Nigerian Bernie Sanders for enthusiastic youth fed up with the status quo. He's a Catholic from east of the Niger River, which alienates Muslims in the north, while not necessarily delivering a go-to for Christians in the southwest: an uphill battle. An ethnic Igbo, though, he appeals to another populous ethnic group that feels marginalized by the two parties of the political establishment. In the Nigerian civil war of the 1960s, Igbo nationalists threw in with the secessionist Republic of Biafra, and the Igbo have struggled to reclaim political representation since.

Labour Party logo.
Via Wikipedia (fair use).

Formerly a PDP candidate, Obi in Saturday's election represents the Labour Party, which stands more overtly for social democracy than the APC does. Boasting a logo of a gear encircling people, Labour touts values of social justice and universal economic opportunity. That message strikes a powerful note in a country endowed with a wealth of natural resources, including oil, yet in which almost two-thirds of the population, some 134 million people, live in poverty. Gen Z voters in particular crave change, and they've reclaimed the term "coconut heads," formerly used to disparage perceived laziness, now to signal support for Obi.

Earlier today, I campaigned at one of the largest markets in West Africa, Onitsha Main Market. I also visited the famous Ochanja Market, and the Relief and Mgbuka Markets in Onitsha. -PO pic.twitter.com/qDX8ETEpDE

— Peter Obi (@PeterObi) February 23, 2023

Obi is a former governor of Anambra State, home of the busy river port of Onitsha on the east bank of the Niger. A friend of mine is an Anambra native, American educated in business, and an executive of a manufacturing firm in Onitsha. He's a Christian and Gen X, like me, but, despite his age, you can count him among the coconut heads. (I'm not naming him here for sake of his security. Though he has expressed his views publicly, and support for Obi is widespread in Anambra, we don't know what the future will bring for Nigeria, and there's no need to memorialize online one voter's politics.) He wrote a missive just two days ago that I think well captures the motivation of Obi supporters:

Nigerians have never been able to hold Gen. Buhari to task on any promise made before the 2015 general elections. He has not kept any. The reason is because those promises were made by his campaign spokespersons, aides and APC party officials. Same is repeating itself with Atiku and Tinubu. The two men have been prevaricating on what they would do if elected. In fact, Tinubu has not granted any interview to any Nigerian television/radio stations. He has also avoided every debate for the presidential candidates. He is running away from being held responsible for his words and promises.

In contrary, Peter Obi has attended every debates, townhall meetings and interviews that came up. He has also looked Nigerians straight in the eyes and told them to hold him responsible for his promises. In a television interview yesterday, Ahmed Datti, Mr. Obi's running mate, told Nigerians to fire them if they fail to improve their lives after four years.

The choice is yours. I and my household shall vote Peter Obi's Labour Party for presidency on Saturday, 25th February, 2023.

When I visited Nigeria in late autumn, I hoped to learn more about the social and political situation in the country than I could glean from reading from home. For better or worse, I didn't absorb much that was new. Nigeria's reality on the ground is precisely what it appears to be: a nation that exemplifies "the resource curse," awash with oil yet riddled with poverty; a people flush with potential yet stymied by venal institutions. Insofar as Nigeria's present predicament makes it a bellwether for west and central Africa, more might ride on Saturday's election than even one nation's presidency.

I've long witnessed my friend in Onitsha rail in frustration at Nigeria's inability to combat corruption and climb to its rightful place as a social and economic leader on the world stage. Having been welcomed by people of such a famously boisterous yet warmly embracing national culture, I'm brimming with empathy. Maybe this election at last will show a way forward and upward.

 

Celebrants rally for the PDP in Ilé-Ifè in December. Political parties sometimes pay supporters to turn out, so it can be difficult to gauge true voter fervor on the basis of public demonstration.
RJ Peltz-Steele CC BY-NC-SA 4.0

Follow the dollar, name politicians in train disaster

Sen. John Thune (R-S.D.) blocked rail safety measures.
Medill DC via Flickr CC BY 2.0

Government "tried" to regulate rail, but industry "resisted" and "won."

That's what I heard tonight in a news break on National Public Radio about the East Palestine, Ohio, derailment disaster.

As if public safety regulation were a football match. Government just couldn't stop that offensive drive late in the second half.

No.

Blame industry, sure.  There's plenty blame to go around. But profits ahead of people? You can't be surprised. That's American industry's MO. And, to be fair, as long as no one gets hurt, we applaud.

Rather, save a big helping of blame for government. The same government now in Ohio trumpeting how Norfolk Southern will be held accountable.

Buck passed.

Government wasn't defeated in some contest with industry on the gridiron. Government failed. The people who are the government lacked the will to do the right thing, or worse, chose to do wrong.

Lee Fang for The Intercept dug into how the U.S. Senate, namely Sen. John Thune (R-S.D.), blocked industry safety regulations eight years ago.

Follow the dollar.  Thune turns up, too, as a top-five recipient of rail lobbying dollars in 2021-22. Here's that list from Open Secrets:

• Rep. Sam Graves (R-Mo.), $107,343
• Sen. Jerry Moran (R-Kan.), $85,548
• Sen. Eric Schmitt (R-Mo.), $72,900
• Sen. John Thune (R-S.D.), $69,550
• Rep. Earl Blumenauer (D-Ore.), $61,015

I think I know where we should send the contaminated soil from Ohio.

Nonprofit, nonpartisan Open Secrets has plenty of data. Check it out. If your congresspersons are on Big Rail's donee roster, don't send them back to Washington to try again.

Grand juror in Ga. Trump probe says little

Pres. Trump leaves Marietta, Georgia, in January 2021.

Trump White House Archives via Flickr (public domain)

The news is ablaze with the "odd 15-minute PR tour" of the grand jury foreperson in the Georgia Trump investigation, as former U.S. Attorney Harry Litman characterized her appearances to CNN.

Grand juries in the American justice system are secret for reasons that even access-advocate journalists and scholars such as myself tend grudgingly to respect. So I was shocked to see this 30-year-old grand juror, "who has described herself as between customer service jobs" (CNN), appearing above a "foreperson" banner, on my TV this morning.

I'm not naming her here, because I think she has had her 15 minutes. Literally. And she ought not be lauded for her TV blitz, which says more about the desperate breathlessness of the 24/7 news cycle than it does about a millennial's cravings for Likes or secrecy in the criminal justice system.

The legal reality of the foreperson's bean-spilling is not really as dramatic as splashing headlines suggest. In common law and in many states also by statute, grand jurors are bound to secrecy. Georgia grand jurors take an oath to that effect. But experts have pointed out that the grand jury investigating Trump's efforts to "find" votes in Georgia is a special, ad hoc, grand jury, so not necessarily operating under the usual statutes, and that Georgia law authorizes grand juries, though not individuals, to recommend publication of their findings.

More importantly, the judge in the instant matter apparently told grand jurors that they could speak publicly, subject to certain limits. The foreperson here said that she's steering within those limits, which appear to disallow disclosure of information about specific charge recommendations and the deliberations among jurors.

For all the media hoopla, the foreperson actually said very little, only that multiple indictments were recommended and that Trump and associates are targets of the investigation. That much already was publicly known. She refused to say whether the jury recommended charges against the former President himself, only teasing, "You’re not going to be shocked. It’s not rocket science" (CNBC), and there's "not going to be some giant plot twist" (N.Y. Times).

The common law presumption of grand jury secrecy means to protect the identity and reputation of unindicted persons and the integrity of ongoing investigations. Both of those aims further public policy, especially in the age of the internet that never forgets. There is some argument at the margins about when grand jury secrecy should yield to legitimate public interest. Accordingly, grand jury secrecy at common law is not an absolute, but a presumption, subject to rebuttal.

The case for rebuttal is strong when a President of the United States is the target of investigation. If grand jury secrecy is not undone in the moment, it's sure to be leveraged loose in the interest of history. Secrecy in the grand jury probe of the Clinton-Lewinsky affair in 1998 was unsettled by Clinton's own public pronouncements about his testimony. The "Starr Report" ultimately left little to speculation.

In cases of lesser magnitude, journalists and judges, naturally, do not always agree on the secrecy-public interest balance, and modern history is littered with contempt cases that have tested First Amendment bounds.

In a textbook case that arose in my home state of Rhode Island, WJAR reporter Jim Taricani refused to reveal the source of a surveillance tape leaked to him from the grand jury investigation of corrupt Providence Mayor Buddy Cianci. In 2004, Taricani, who died in 2019, was convicted of criminal contempt and served six months' home confinement. He became a symbol in the fight for legal recognition of the reporter's privilege, and, in his later years, he lectured widely in journalism schools. A First Amendment lecture series at the University of Rhode Island bears his name.

Taricani worked closely with the Reporters Committee for Freedom of the Press (RCFP). A superb RCFP series on "Secret Justice" in 2004 included a now dated but still highly informative brief on grand jury secrecy, and the RCFP has online a multi-jurisdictional survey on grand jury access.

Brookings has a report on the Fulton County, Georgia, investigation, last updated (2d ed.) November 2022.

Does law school make students 'comedy-ready'?

Zarna Garg (from Press Kit)

Zarna Garg is a comedian known for her identity as an Indian-American mom. She's also a lawyer.

A lot of comedians went to law school. I can think of many reasons for the overlap. Some of it probably just has to do with a level of affluence to support both the luxury of graduate school and the opportunity to pursue, in the alternative, a usually unprofitable career.

I bet more has to do with the requisite wordsmithery of both careers. And lawyers' penchant to view the world through a pessimistic, or at least risk-anticipatory, lens surely makes for a better comedic edge than one would expect from the beaming optimism of the other classical professions, healers and clergy.

For Enhance Entertainment, Gav George opined that law school and comedy are not so different:

Getting through law school is no walk in the park—it takes hard work, a thick skin and dogged perseverance. The 3 a.m. study sessions, nerve-wracking exams and risk being cut down to size by peers in mock trials (or the front lobby), they all take their toll.

When you think about it, comedy is just as cut-throat. They have to always re-write material, survive the inevitable flop performances and harsh critics, hecklers and yes, occasional boos, all while quashing those niggles of self-doubt into a small black ball in the pit of their stomach.

A comedian’s neck is always on the line in the world of comedy until they get their big break.

Then stuff gets real.

John Cleese has a law degree.  He cut his teeth writing comedy for the Footlights Club while reading law at the University of Cambridge.  He never practiced.  Rebel Wilson might be my favorite lawyer-comedian. She's still not a half-bad lawyer if she had anything to do with her advocates' prosecution of her Australian defamation case.

I also like Demetri Martin. He left NYU Law School after two years to pursue comedy. I first saw Martin on The Daily Show in 2005, but already he had created a TV show for the BBC and written late night for Conan O'Brien—whose mother was a partner at Ropes & Gray.

A good friend of mine from law school came from a comedy background. He never practiced after school, but complemented K12 teaching—for which you really do need a sense of humor—with occasional stand-up. Yours truly wrote a weekly humor column for a newspaper once upon a time.

There's even a former-tenured-law-professor comedian, Liz Glazer. She taught at Hofstra.

I first heard Zarna Garg on a characteristically thought-provoking story on This American Life about her relationship with her daughter, Zoya. Garg's path to law school was unlike any I had heard before: she was avoiding an arranged marriage. Law school was like a draft deferment.

Later in her life, Garg found something still missing, a space that neither law practice nor beloved children had fully occupied. Ira Glass recounted for TAL, "Four years ago, when she was 16, Zoya saw how unhappy her mom was. She had trained to be a lawyer but didn't like it and stopped when she had her kids."

Garg said, "'Oh, I'll just be a secretary or somewhere. Or I got a law degree. I could go exercise my law degree. I could go practice law.' [And Zoya] was like, 'Mom, you hated practicing law. You love telling stories.'"

Now Garg tells stories that make people laugh. But like the best of comedians, she also makes people think. I hope I'll get the chance to hear her live one day. Or at least to see her on her very own Netflix special.

Assange defense group plans Boston/online panel

In connection with Student Press Freedom Day, featuring nationwide virtual events, Boston Area Assange Defense will host a live and streaming program on Thursday, February 23, 6:30-8:30 p.m., on the prosecution (persecution?) of WikiLeaks information activist Julian Assange.

Accused of hypocrisy, the Biden Administration still seeks Assange's extradition from the UK to face charges of espionage in the United States. Assange presently is appealing approval by the British home secretary of the extradition request.

Having co-founded WikiLeaks in 2006, Assange long advocated for absolutism in the freedom of information. But when WikiLeaks received a trove of records from U.S. soldier Chelsea Manning, Assange did enlist the help of journalists to filter the material for public consumption in an effort to protect people, such as confidential informants whose lives would be at risk if they were named as collaborators with western forces.

Nevertheless, the subsequent publication of records in 2010 and 2011 outraged the West.  The records included secret military logs and cables about U.S. involvement in Iraq and, as Al Jazeera described, "previously unreported details about civilian deaths, friendly-fire casualties, U.S. air raids, al-Qaeda’s role in [Afghanistan], and nations providing support to Afghan leaders and the Taliban." Especially damaging to western interests was a video of arguably reckless U.S. helicopter fire on Iraqis, killing two Reuters journalists.

Manning was court-martialed for the leaks. President Obama commuted her sentence in 2017.

Thursday's program is titled, "The Future of Gen Z Journalism Depends on Julian Assange's Freedom." From Boston Area Assange Defense, here is the description.

Boston Area Assange Defense invites you to attend a panel discussion on how the U.S. prosecution of Julian Assange impacts the future of journalism. This event is part of the Student Press Freedom Day 2023 initiative: "Bold Journalism/Brave Advocacy." 

The reality is that "Bold Journalism" has landed Julian Assange in a supermax prison for publishing the most important journalistic work of this century. Our First Amendment rights are threatened by this unconstitutional prosecution of a journalist and gives the US government global jurisdiction over journalists who publish that which embarrasses the US or exposes its crimes.

Prestigious international lawyer Prof. Nils Melzer (appointed in 2016 as UN Special Torture Rapporteur) authored, The Trial of Julian Assange, A Story of Persecution. The book is a firsthand account of having examined Assange at Belmarsh prison and having communicated with four "democratic" states about his diagnosis of Assange exhibiting signs of persecution. He wrote, "I write this book not as a lawyer for Julian Assange but as an advocate for humanity, truth, and the rule of law." "At stake is nothing less than the future of democracy. I do not intend to leave to our children a world where governments can disregard the rule of law with impunity, and where telling the truth has become a crime." Melzer stated, "If the main media organizations joined forces, I believe that this case would be over in ten days."

Boston Area Assange Defense platforms this experienced panel of journalists for a lively conversation about the Assange prosecution, its threat to journalism and the rule of law. Also, a short video clip narrated by Julian Assange's wife will be streamed for informational and discussion purposes.

Students and citizens alike are entitled to a free press so that we can make informed decisions.

A free press is the cornerstone of our democracy.

We must fight against censorship and the criminalization of journalism.

We must show "Brave Advocacy" to end the prosecution of Julian Assange!

Please join us February 23rd for this important "Bold Journalism/Brave Advocacy" event.

Students are invited so kindly share this event with your students!

Online Zoom link. 

Community Church of Boston's YouTube. 

People will also gather at the Community Church of Boston, 565 Boylston St., near Copley Square.

An Assange information table will be set up with literature and petition to MA senators. Boston Area Assange Defense will be present to answer questions....

Guest speakers:

• Jeremy Kuzmarov, Author and Educator, Managing Editor, Covert Action Magazine 
• Esther Iverem, Journalist, Producer, Radio Host, "On the Ground: Voices of Resistance from the Nation's Capital," nationally syndicated on the Pacifica Network
• Sam Carliner, Journalist; Sam's Jan. 2021 article covering the Dept of Justice DC rally during Assange's extradition hearing
• Tarang Saluja, Student, Activist, Journalist

Rule of law depends at least in part on how we teach

Differences in legal education between civil law countries and the United States—and analogous divergence in priorities in the American law school classroom—might have ramifications for the rule of law.

Prof. Vernon Palmer leads an Obligations I class.
Tulane Public Relations via Wikimedia Commons CC BY 2.0

Legal education in the United States and in the civil law countries of Europe are famously different. The American model is identified with case law, the Socratic method, and inductive reasoning. The civil law model is identified with code, lecture, and deductive logic.

Both sides have plusses and minuses, and that might be why, in recent decades, we see signs of change and convergence. American legal education has sought to marginalize the traditional model to one strategy on a menu of effective pedagogies. Meanwhile, many schools in Europe have sought increasingly to import the "Paper Chase" style of classroom engagement.

Teaching periodically in Poland for more than 15 years, I've found students delightfully receptive to the classroom experience that U.S. law students take for granted. I'm inclined to conclude, generalizing of course, that the way U.S. law professors interact with students has the potential to contribute valuably to education in Europe, where lecture still predominates. My U.S. students tend better than their European counterparts to develop forensic skills and to use analogical reasoning.

At the same time, I have found, generalizing again, that my students in Europe are better versed than their American counterparts in the history and philosophy of law. Their understanding of context is informed by a storied Latin vocabulary. They are better able to convert memorized knowledge to application.

There is no doubt that the way law schools teach has an impact on how lawyers work and think about the law. What's less clear is the extent to which this impact represents a normative social advantage—for example, better preparing lawyers to protect human rights and uphold the rule of law.

In recent years, Europe has been struggling with rule-of-law crises in central and eastern Europe. In particular, populist movements embodied in the Duda and Orbán regimes in Poland and Hungary have given rise to disputes over judicial independence. In a similar vein, the Romanian legislature enacted judicial reforms in the late 2010s. 

Ostensibly, the Romanian reforms were implemented to combat corruption. But that's not how Brussels saw it. The reforms wound up before European Union courts, culminating in judgments in 2021 and in 2022. The 2021 judgment of the Grand Chamber has been well regarded as outlining a progressive tolerance for the development of the rule of law while affirming EU supremacy ("primacy") in constitutional law for matters within the union prerogative.

Unfortunately, Romanian resistance to that supremacy caused the Grand Chamber to revisit the problem last year. Notwithstanding the proceedings in European courts, pro-reform domestic authorities and the constitutional court of Romania had upheld the reforms. Authorities moreover asserted that lower court judges could be subject to discipline for testing Romanian constitutional court rulings against the requirements of EU law.

The Grand Chamber held in 2022 that "ordinary courts of a Member State" must be permitted "to examine the compatibility with EU law of national legislation which the constitutional court of that Member State has found to be consistent with a national constitutional provision that requires compliance with the principle of the primacy of EU law"; and that domestic judges may not be disciplined for "departing from case-law of the constitutional court of the Member State concerned that is incompatible with the principle of the primacy of EU law."

At the meeting of the General Congress of the International Academy of Comparative Law (IACL) in Asunción, Paraguay, in October, a panel on rule of law examined national reports from 16 countries, including the United States, Poland, Hungary, and Romania. I found especially compelling remarks by the rapporteur for Romania. (I'm sorry that I did not get the rapporteur's name; it does not appear in the composite issue report.)

Law professors everywhere, laudably, want their students to be prepared for any job, the rapporteur said. But European students feel they're trained as if to become judges. Roman heritage, Roman law, he said, is sacred. Motivated to prepare students to do legal reasoning, he said, European law professors train students that there is "only one correct meaning," "one true meaning" of a text, and the students, in turn, "become very formalistic." 

Often, he said, judges then "miss the point" by "applying law automatically." And that was the problem, he opined, with the Romanian constitutional court in upholding the judicial reforms. The court reasoned, he explained, that because rule of law exists in both the Romanian constitution and EU treaties, the court "blindly" concluded that Romanian law comports with EU law. "False," he said; "it's the way in which we teach."

In other words, the Romanian judges assessed black-letter law for comportment with black-letter law without digging beneath the surface. They were ill equipped, or declined, to look beyond formalism to test the law functionally. Moreover, by shielding the constitutional court's analysis from further interrogation in the lower courts, top jurists were excessively insistent on the exclusivity of their prerogative: one true meaning.

I don't know enough about the situation in Romania to assess the merits of the Romanian position, or the EU position, or the perspective of the rapporteur. But I was intrigued by his parting thought:

"I'm astonished," the rapporteur said, that "in the United States, you practically criticize law professors that they don't tell you the true meaning. It would be a pity to change that."

As I wrote recently, law professors in the United States are under great pressure to abandon traditional teaching methods in favor of bar prep and skills readiness. Law schools such as mine place little value on policy, theory, and moral deliberation, but prize memorized law and practice skills. The latter are valuable, to be sure. But it's the former that make law a profession and not mere occupation. 

Prioritization of occupational objectives pressures professors to abandon the traditional teaching strategies of the American model. Cases give way to code, or rules. Inductive reasoning gives way to deduction. Socratic dialog gives way to PowerPoint outlines, recall games, and lectures. This is convergence of a sort. It's not a good sort.

I don't contend that the traditional model of legal education in the United States is superior to other models. Nor would I enshrine the case method to the exclusion of a multitude of teaching strategies. But American legal education in the 20th century excelled at preparing lawyers to turn problems over and examine them through many lenses.

If we do our job right, law professors create a space for creativity to thrive. That creativity defines law as a profession. And only as professionals can lawyers safeguard the rule of law.

It would be a pity to change that.

Me and my mate Octavio Sosa in Paraguay. A first-year engineering student, he plays a mean guitar.
RJ Peltz-Steele CC BY-NC-SA 4.0

 

Judge teaches, supports professional development by encouraging appearance of junior attorneys

In multi-district civil antitrust litigation over turkey prices, a federal magistrate judge in Illinois in the fall issued an unusual order, calling on litigating firms to designate only junior attorneys to argue motions.

Pending before the court at the time were three pretrial matters, a discussion of expert testimony, a motion to preclude a deposition, and a motion to amend a scheduling order. On October 20, 2022, Magistrate Judge Gabriel A. Fuentes wrote:

[T]he Court would like to offer junior counsel an opportunity to speak to the expert discovery issue and to argue the two motions. The Court strikes the [planned telephonic] hearing and resets it to [Nov. 1,] when there will be ample time to address all three issues. If the parties do not indicate that they will permit junior associates to argue the motions, the Court will hold the hearing telephonically on the expert discovery issue only and will decide the two motions on the paper submissions.

The Court kindly requests that the parties confer and notify the courtroom deputy ... whether counsel with less than four years of experience after law school will be permitted to speak and argue; ideally, different counsel would argue the two different motions for the arguing parties. Also, multiple junior counsel could divide a party's arguments on a single motion if it makes logical sense to do so. Senior counsel of course may and should attend in a supervisory role and will be permitted to add or clarify as they see fit.

No inferences should be drawn about the importance of any motion to the Court based on the Court's attempt to create professional development opportunities for junior counsel. Additionally, the status hearing on the expert discovery issue strikes the Court as one that could be addressed by junior counsel.

(Paragraph breaks added.)

Judge Fuentes has served on the bench for almost four years, since May 2019. Before his appointment to the bench, Fuentes was an accomplished lawyer, and before law school, an accomplished journalist.

Fuentes wrote news and sports for local papers as a secondary-school student, and he worked his way up to managing editor of the Daily Northwestern while at the Medill Journalism School. He worked for four years as a reporter for The Los Angeles Times before going back to the Northwestern Pritzker Law School. After six years as an attorney associate, Fuentes made partner at Jenner and Block; left to serve about five years as an assistant U.S. attorney; then returned to Jenner and Block for 13 more years.

While practicing as a litigator in white collar defense, antitrust, and media law, Fuentes maintained a heavy docket of pro bono practice. In 2015, the Chicago Bar Foundation recognized his work "on indigent criminal defense, prisoner rights, the protection of voting rights for minorities, and First Amendment issues." In particular, Fuentes never stayed true to his journalistic roots, for example, once negotiating with counsel for Western University Illinois University on behalf of a student investigative journalist.

Being also a product of journalism and law schools, and likewise having represented student journalists pro bono, I identify with Judge Fuentes's experience. More importantly, as a law professor, I appreciate Fuentes's initiative to help new attorneys in big-law practice to get real forensic experience. 

Much of what is wrong with legal education today can be traced to the bean-counter orientation of administrators, universities, and the American Bar Association as accreditor, all of which are more concerned with bar pass statistics, superficial diversity, and, above all else, revenues, than with whether students actually learn anything worthwhile or grow as moral actors. Yes, law schools do care about making students "practice ready," but that only because the bar, unlike the medical fraternity, has shirked its historic responsibility to teach. The responsibility has devolved wholly on law schools, where practical skills training has all but supplanted the policy, theory, and moral deliberation that are supposed to make law a profession rather than mere occupation.

Fuentes has counseled students at Medill and taught adjunct at Pritzker, so he's kept a hand in the classroom, too. I don't know Fuentes. But to me, his apparent ability to synthesize his career experiences into simultaneous roles of servant and mentor represents the very model of professional identity. His minute order entry of October 20 should be the norm, not a headline.

Judge Fuentes ruled on the motions on November 9, and entered into the record: "The Court extends its thanks to the parties and counsel for allowing junior associates to argue and address these matters, and the associates are commended for an excellent performance."

The underlying case is In re Turkey Antitrust Litigation, No. 1:19-cv-08318 (N.D. Ill. filed Dec. 19, 2019). HT @ Adrian Cruz, Law360.

Events endeavor to empower student journalists

The Student Press Law Center and partner organizations are sponsoring Student Press Freedom Day on February 23, 2023.

A number of virtual educational events are open to the public:

• Public Records Workshop with the Foundation for Individual Rights in Education (FIRE);
• Roundtable: FIRE Defends The Commonwealth Times, a student newspaper at Virginia Commonwealth University, with FIRE;
• Fighting for Press Freedom: How To Be an Advocate for Student Journalism with the Student Press Law Center (SPLC) and the National Coalition Against Censorship;
• Agency in Student Literary Publications with the National Council of Teachers of English and National Scholastic Press Association;
• Student Press Trivia Night with FIRE, the Freedom Forum, and the SPLC;
• FOIA Workshop with the Electronic Frontier Foundation (EFF);
• Refusing Censorship: A High School Newspaper's Fight for Student Press Freedom, featuring adviser Adriana Chavira of the The Pearl Post at the Daniel Pearl Magnet High School in Los Angeles, with PEN America, the First Amendment Coalition, the National Association of Hispanic Journalists, and the SPLC;
• Student Press Briefing: Impacts of School Surveillance with the Center for Democracy & Technology;

There also are pre-recorded events on school media policies, op-ed writing, and student press freedom.

Many moons ago, I had the privilege of interning at the Student Press Law Center when I was a law student, and then of representing student journalists pro bono when I was in practice in Maryland. Censors never tire, so there is always opportunity for practicing attorneys to engage with this rewarding and challenging work.

HT @ the Free Expression Legal Network (FELN).