It may surprise some practitioners to learn that certain appellate courts have even taken to issuing “tentative” opinions prior to oral argument.  Certain branches of the California appellate courts have been among the leaders in this regard; the web page for the 4^th District, 2^nd Division claims that “the justices do not sense that their deliberations are any less objective than before the tentative opinion program began” and that “counsel almost unanimously praise the program.”

Proponents of the practice contend that it has several distinct advantages.  According to the California court’s website, many parties simply agree to cancel oral argument after seeing the tentative opinion.  Even if oral argument proceeds, it is much more focused because counsel are well aware of how the judges are thinking about the case and which issues are most important.  Less frequently, counsel may even notice errors in the tentative opinion’s discussion of the underlying law or facts, and use the oral argument to correct them.

If the first point is true, the practice seemingly amounts to suppression of oral arguments that would otherwise occur.  I am sympathetic to but not persuaded by the accompanying claim that this outcome may save time for the courts and money for the litigants.  I still believe there is significant value in oral argument.  Some of the reasons are obvious.  In a few cases, the panel really will be on the knife’s edge of indecision because the case is so close.  In other cases, the argument allows the litigants to correct any misimpressions of the governing facts or law made by harried judges or law clerks before they are set in ink.  If an opinion, however tentative, has already been issued, it seems to me that judges will be more defensive about its perceived weak points.

Oral argument also allows the panel to “argue” to one another by asking leading questions and thus ensuring that certain points will be stressed to their colleagues.  Speaking as a former law clerk on an appellate court, I think litigants should not underestimate the importance of this point.  Advocates always ready themselves for the hard questions, but don’t do enough to run with “softball” questions that will almost inevitably come.   In the very close cases, members of the panel often are forced to become advocates for one side or the other in the judicial conference room.

Finally, I think there is an intrinsic and cathartic value in telling the appellate court why the lower court got it wrong.  In my experience, this holds true both for lawyers (directly) and the clients they represent (vicariously).  When citizens see that the nation’s highest courts allow litigants to tell their stories and correct mistakes, it can provide a much-needed boost to public confidence in the judiciary and the judicial system.

Debra Tuttle, chief mediator for the program, said during a panel discussion at a conference Friday on foreclosure issues in Wisconsin that from July 22, when the program began, through November 4, there were 278 requests for mediation, more than double the number that was anticipated.

Twenty cases have gone through the mediation process, with all but one resulting in the owner keeping the house, she said. More than twenty others have ended with agreement between the owner and lender without the mediation process. And 136 are awaiting mediation. 

Natalie C. Fleury, program coordinator for dispute resolution at the Law School, said a key to making mediation work was having everyone involved understand that that it is in their interest to work together to reach agreement. Lenders don’t actually want to take possession of homes and owners don’t want to give them up. “There are common interests here that mediation can help,” she said.

Cases are brought to the mediators through court referrals, and the mediators act as neutral parties. Marquette Law School is playing a central role in launching and staffing the mediation process.

The panel discussion was moderated by Daniel Idzikowski, the Law School’s Assistant Dean for Public Service. It was part of a conference at the Clarion Hotel & Conference Center, titled “Foreclosures in Wisconsin:  Responses and Resources for Living Beyond the Bubble.” The sponsors included the Law School, the Federal Reserve Bank of Chicago, the City of Milwaukee, the Wisconsin Housing and Economic Development Authority, the University of Wisconsin Extension, and the  U.S. Department of Housing and Urban Development.

One: Obama said, “I’ve got to be honest, we’ve got to do a better job of moving bad teachers out of the classroom, once they’ve been given an opportunity to do it right.” His calls for recruiting higher-quality teachers and rewarding top teachers better didn’t get applause, but this line did. Secretary of Education Arne Duncan said in a telephone interview after the speech that this didn’t surprise him — it happens wherever the president speaks about education, he said. Raising the quality of teachers, in large part by doing more to identify quality teachers (and those who aren’t) is one of the highest, but most difficult, priorities for Obama and Duncan. And moving out the ones who really aren’t good at it is especially difficult, particularly given the defensiveness of teachers’ unions when such issues come up.

Two: His call for overhauling the way testing is done nationwide. 
He said he didn’t want to see more testing. “What we want to do is finally get testing right.” he said. This drew applause, and so did a line about getting test  results back to teachers in a short enough time to be useful. Wisconsin’s current testing regimen means students are taking the annual tests this month, but schools won’t get results for several months. This is hugely unpopular in the state, with educators arguing it leaves results almost useless to them. One of the highest priorities for a revamping of the state testing system is speeding up the cycle.

Three: His call for parents to do more to be part of the education process. ”Lifting up American education is not a task for government alone.  It will take parents getting more involved,” Obama said. (He then digressed into an anecdote about his daughter Malia struggling with tests in science, which also clearly struck a chord with the audience.) Duncan said the call for parents to do more also consistently generates warm reactions. A subject of huge importance but formidable complexity, parent involvement is getting more attention from educators across the U.S., including in Milwaukee. There appears to be a growing belief that schools can do more than simply throw up their hands when it comes to parents, and that strategies exist to lead many parents to become better allies of their children’s education.

At the time we tried the case (1996), black candidates for judicial office had not done well in Milwaukee County. That has changed, but not because the plaintiffs prevailed. Judge Gordon ruled in our favor and the Seventh Circuit affirmed. I’d like to think that events — subsequent successes by black candidates on a county wide basis — have validated his judgment, but I may not be the best one to make that judgment.

Judge Gordon wasn’t — on the bench — a warm person.

He was demanding. He expected good lawyering and strove to deliver good judging. He was one of the first judges in the district to impose time limits on trial lawyers. Although he occasionally sliced that loaf a bit too thin, he was right in recognizing that a command to brevity concentrates the mind.

Yet he wasn’t unreasonable. It was not about his calendar and how delay made him look. It was not about how much more he knew than the lawyers before him. It was about doing justice in a way that people had a right to expect and about which we involved in the process could be proud.

I think he made the lawyers before him better. I think he made himself better. I know that, in the few instances when I appeared before him, he made me better.

R.I.P.

Cross posted at Shark and Shepherd.

Obama and Secretary of Education Arne Duncan, who will be with him, are firm supporters of many of the ideas being incorporated into the legislative package. Wisconsin clearly has to make changes such as these if it wants a decent chance at a share of the $5 billion in the Race to the Top money and other incentive funds Obama and Duncan will distribute over the next couple years.

It appears highly likely a special session of the Legislature will be called in November to consider the education proposals. The outcome is not clear.

There remains a lot of resistance, not only to mayoral takeover in Milwaukee but to proposals that might lead to a system for setting teacher salaries statewide that would include performance incentives. It was a big breakthrough for those seeking change when several key legislators, including Sen. Lena Taylor and State Reps. Pedro Colon and Jason Fields, came up with an alternative plan that was agreeable to Doyle. The three and several others joined Doyle in unveiling the plan last week.

But what’s a bigger card to play than bringing the president to town? There have been lots of presidential visits to Wisconsin in the last few decades, but all of them I can recall focused on either election campaigns or national issues such as the economy or health care. The White House is always very careful in picking times and places for visits and Obama’s trip to Madison now, specifically to talk about education, can only be seen as part of the campaign to push the legislators to join in supporting the reform package.

Which leads to two questions: How openly will Obama say that? Some supporters are concerned that he won’t be direct enough. And what will go on behind the scenes, where Obama is expected to meet with a variety of people, including those involved in the current education debate, out of the view of the news media and public?

Frustrated by court decisions that blocked the suspension of two football players who tested positive for banned substances, NFL commissioner Roger Goodell is asking Congress for help.

“We believe that a specific and tailored amendment to the Labor Management Relations Act is appropriate and necessary to protect collectively bargained steroid policies from attack under state law,” Goodell said in testimony prepared for a House Energy and Commerce subcommittee hearing Tuesday.

Recent court decisions “call into question the continued viability of the steroid policies of the NFL and other national sports organizations,” Goodell said.

I have written previously about the interesting state law questions lurking in the case concerning the suspension of two Minnesota Viking players.

Here is the summary of that case again that started all of this:

In Williams v. NFL (8th Cir. Sept. 11, 2009), the appeals court affirmed three legal conclusions of the district court: 1. the Minnesota statutory claims alleged by Kevin Williams and Pat Williams of the Minnesota Vikings were not preempted by section 301 of the Labor Management Relations Act; 2. their Minnesota common law claims were preempted by section 301; and 3. the arbitrator’s award upholding the player’s suspensions for using banned substances would be upheld.  The NFL Players Association was at least initially successful in getting  its claims heard that they had some statutory defenses to the suspensions under the Minnesota Drug and Alcohol Testing in the Workplace Act and the Minnesota Consumable Products Act.

My colleague Matt Mitten, director of the National Sports Law Institute here at Marquette, thinks the court got it wrong:

The court gives no consideration to a national professional sports league’s need for uniform rules by permitting state law to invalidate the terms of a collectively bargained anti-doping program. It conflicts with other federal appellate cases holding that state labor, antitrust, administrative, and tort laws cannot be used to regulate national sports leagues and governing bodies, which require rules that must be applied and enforced consistently nationwide. It’s almost certain the NFL will petition the Supreme Court for cert., and I think there’s a reasonable chance the Court will grant its petition.

Major league baseball also believes in a legislative fix:

Rob Manfred, Major League Baseball’s executive vice president of labor relations, also discussed a legislative remedy in his testimony, saying “a narrowly drafted statute could solve the problem faced by professional sports” while preserving the role of collective bargaining in drug programs without interfering with states’ prerogatives.

Legislatively or judicially, it would not be surprising if what came out of all of this was some changes in the law which permit professional sports leagues some form of preemptive power to maintain uniformity in their substance abuse policies.

Cross-posted on Workplace Prof Blog.

Fans of judicial minimalism should be happy with the court’s recent criminal decisions.  So should fans of judicial collegiality: the court’s minimalist holdings produce few dissenting votes and (Bradley’s shot notwithstanding) a generally respectful tone in the few dissenting opinions.  I wonder, though, if all of this minimalism and case-specific analysis provides sufficient clarity in the law for the police officers, lawyers, and trial-court judges working in the trenches of the criminal-justice system.  Though much in vogue now, minimalism has its vices, too.

This year marks the twentieth anniversary of a criminal justice innovation that was supposed to help solve the drug problem in this country and reduce the mass incarceration of men and women whose substance abuse habits lead them toward criminal behavior and, more often than not, to prison.

In 1989, then-State’s Attorney for Miami-Dade County, Florida (later United States Attorney General) Janet Reno designed a new approach to mitigate the crushing loads of drug-related criminal cases in South Florida. Defendants charged with low-level drug felonies would be diverted into treatment programs instead of prison. The idea caught on, and today there are 2,100 such “problem solving” courts around the country, receiving federal funds and dealing with not only drug abuse, but also drunk drivers and domestic violence offenders. 

Whatever relief these reforms brought about, in 2008 there were more than 1.7 million individuals arrested and more than 500,000 men and women in jail or prison for drug offenses, according to the FBI’s new Uniform Crime Report.  Someone is arrested in this country for drug possession or related infractions every eighteen seconds.

Reno’s drug court idea was compassionate: use the trauma of the moment to move individuals caught in the system into treatment in the hope of breaking the addiction and transitioning them toward a less dangerous existence. There are many success stories, people whose downward spiral reversed and who live normal, productive lives.

Wisconsin has at least twenty-one problem-solving courts, all in different counties. These courts focus on a variety of problems, from repeat drunk driving to drug charges. These courts have both positive and negative components. Three years ago, Waukesha County began an alcohol treatment court for defendants convicted of a third-offense DUI. A recent study completed by Temple University compared the 141 Waukesha residents who entered the program against the 81 others who were denied entry for lack of space. The 141 defendants who completed the program had a twenty-nine percent recidivism rate, as opposed to a forty-five percent recidivism rate for those who did not.

Another success story comes out of Milwaukee County. Shortly after his election in 2006, District Attorney John Chisholm, with the input of the defense bar and judiciary, developed protocols to allow for diversion or deferred prosecution for many low-level drug users. At the end of 2007, more than 700 people had benefited from a diversion or deferred prosecution agreement, with a sixty-five-percent success rate.

However, for every case with a happy ending, there are examples of lives ruined and families disrupted when treatment fails and the offending individual winds up in prison or jail. One of the central problems with specialty courts is that they have grown in an ad hoc way, so that each operates differently. Most of the courts were created by prosecutors and judges without the input of defense counsel. In response to the twenty-year anniversary of the creation of the first problem solving court, the National Association of Criminal Defense Attorneys (NACDL) commenced a national in-depth study of the effectiveness of these courts. This report can be located at www.nacdl.org/drugcourts.

Some of the findings published in the NACDL study include:

• Short-cuts built into many drug court systems make it difficult to protect the accused person’s rights. Not every person accused of a crime is guilty. However, when faced with the grim choice between treatment and prison, there is great pressure to plead to the crime and avoid risk. In order to ensure that innocent defendants are not pleading guilty, problem solving courts should allow participation at the earliest possible stages.
• Money that goes into these court-run systems could be more efficiently spent reaching out to substance abusers before they commit a crime, through public and private health programs. 
• Nationwide, many problem solving courts are structured so that prosecutors act as “gatekeepers.” Prosecutors often offer a devil’s deal with addicted offenders: plead guilty to a felony and you get into treatment. Under this “deal” even if the diversion works, the individual is left with a criminal record that makes it hard to find work, vote, or live a successful life. If the defendant is unable to comply with treatment and falls out of the program, he or she goes to jail for a lengthy sentence, at considerable taxpayer expense. An additional consequence to the “prosecutor as gatekeeper” approach is that the problem solving court then becomes a dumping ground for the prosecution’s weak cases.  
• Drug courts induce defense lawyers to become part of a “team” with the judge, prosecutors, and treatment specialists. That raises troublesome ethical issues for a lawyer whose overarching obligation is to defend his accused client. 

The cost of our current system is enormous, both in tax dollars and damaged lives. In these times of economic strife and budget deficits, it is time to start a national conversation around decriminalizing drugs and offering access to substance abuse therapy outside the legal system for all who want it. By expanding access to treatment and meaningfully restructuring the way in which prosecutions are handled, we will save money, restore lives, and preserve the dignity of low-level drug offenders.

That was a key theme of a conference Monday convened by Marquette Law School. “Milwaukee 2015: Water, Jobs, and the Way Forward” brought Wisconsin Gov. Jim Doyle, Milwaukee Mayor Tom Barrett, and business and academic leaders together before an audience of several hundred at the Alumni Memorial Union.

“My dream is, by 2015, when people think water, they think Milwaukee,” said Richard A. Meeusen, president and CEO of Badger Meter and co-chair of the Milwaukee 7 Water Council, a group of civic leaders focused on building  the metropolitan area as a hub for businesses related to water. 

Meeusen; Barry Grossman, an attorney at Foley & Lardner; and Barrett all spoke about Lake Lanier. The lake in northern Georgia is a main source of water for the Atlanta area. In July, a federal judge ruled against continued use of the lake to meet Atlanta’s water needs. Although that is far from the final word in a dispute that has built for years, the ruling makes it significantly more likely that industries in Atlanta will be facing shortages of water within several years.

Barrett said businesses there -– or in other places around the country where water shortages will become realities -– are going to ask, “’Where can I get water?’” His response: “Here we are.” He added, “Turn about is fair play,” and there would be poetic justice if Milwaukee got some businesses to move from Atlanta, given the way the Braves baseball team moved from Milwaukee to Atlanta in 1965. Meeusen said Milwaukee leaders should be contacting Atlanta business people and running ads in newspapers there promoting the availability of water in Wisconsin.

Meussen said, “We should be, in this city, trading water for jobs.” He said M-7 leaders had been asking government regulators if it is legal to offer companies free or reduced price water if they move to the Milwaukee area, and were told recently by the state Public Service Commission that it is.

Anselmo Teixeira, senior vice president of Siemens Water Technologies, said, “We truly have a great opportunity in our hands.” He said there is no established water technology hub in North America, and Milwaukee has some substantial advantages in seeking to become such a center – if the right things are done both by government, university, and business leaders.

Grossman, a member of M-7 Water Council board of directors, said, “We need to place a large bet, we need to place it quickly, if we’re going to establish leadership.”

In prepared remarks, Doyle said, “Wisconsin is in a unique position to be a world leader in the water industry. . . . Here in Wisconsin, we have a great story to tell and it is time for the world to hear.”  But in a panel discussion before Doyle arrived, Meeusen said emphatically that the state is not doing enough to put Milwaukee on track to be that water capital.

In welcoming people to the program, Law School Dean Joseph D. Kearney said the event was an example of the way the Law School can bring people together to work on major policy issues facing the Milwaukee area.  Mike Gousha, Distinguished Fellow in Law and Public Policy at the Law School, moderated the morning-long session.

For example, while in Peru I received a grant from the Ford Foundation to conduct research on the right to mental health for survivors of the country’s internal armed conflict.  In the course of the study, I interviewed many government officials, advocates from non-governmental organizations and ordinary citizens.  None of these people questioned the basic premise of my study which was that health is a human right, as enshrined in international treaties such as the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). 

Article 12 of the ICESCR provides that “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” The Covenant has been ratified by 160 countries in the world, but not the United States.  The 1946 Constitution of the World Health Organization (WHO) recognizes that the right to health is a fundamental right “without distinction of race, religion, political belief, economic or social condition.”  Significantly, the United Nations General Assembly (composed of representatives from 192 member countries adopted a resolution in 2003 reaffirming the right to health.

Professor Eleanor D. Kinney, Co-director of the Hall Center for Law and Health at Indiana University School of Law conducted a study in 2004 found 67.5% of countries to include the right to health  in their national constitution.  The United States is the only industrialized nation in the world not to guarantee access to health care, through universal health care, as a right of citizenship.   

Given this global recognition of the right to health, I often wonder why Americans seem so afraid of moving in this direction and catching up with our peers.  Why is health reform so controversial? 

Is it the cost?  Maybe, except we permit millions of tax dollars to be spent daily on bank bail-outs, wars in foreign countries, emergency aid for developing nations, and even stimulus money to build our national infrastructure like highways and bridges.   One estimate puts the health reform cost at $1.05 trillion over 10 years, which is almost as much as we will spend on the wars in Iraq and Afghanistan by 2010 ($1.3 trillion).  However, since health costs currently outpace the growth of the economy, this initial up-front investment would lead to long term savings.

Is it a misunderstanding of what universal means?  People often believe that the right to health means everyone will be able to demand perfect health — the “right to be healthy.”  But the ICESCR recognizes that the right to health is subject to “progressive implementation” and strives towards a minimum acceptable baseline that is attainable.

Is it a mistrust of government?  Some speculate that health care access and quality will decline if there is universal health care.  But more and more reports on comparative systems in places like Canada, France, the United Kingdom and Germany are debunking this claim.  National Public Radio covered the story of one American middle aged couple had to move to Mexico because his childhood polio problems prevented him from working, and she was denied coverage because she survived cancer twenty years ago—they literally could not afford to stay here (even though he was a retired military officer).  Once in Mexico, they were enrolled in the government health plan (which is tax dollar funded although the couple paid a few hundred dollars annually).  They reported that the care was “excellent.”

Is there an unwavering belief in the free market?  Perhaps, but it seems that leaving universal health care to the market is not working.  According to the U.S. Census Bureau, nearly 47 million Americans, or 20 percent of the population under the age of 65, were without health insurance in 2008.

Some opponents to a government response to this market failure accuse the administration of being socialist.  This reaction really confuses me given that we seem to accept that certain public goods are so essential to our national well-being that the government involvement makes sense: public schools, national highways, police and fire fighters, libraries, to name just a few.  Are we then already a socialist country?

But to get clarity on this last issue, I asked my Chilean colleague Professor Pablo Contreras, while he was here during the student exchange with Hurtado University  how it is that his country has been able to sustain political support for a universal health care system.

I began, “Chileans don’t worry that it is socialist?” 

Certainly, Latin America was the Cold War’s physical battlefield.  General Pinochet, himself, ruled Chile with an iron fist for seventeen years as part of his crusade against communist leftist groups.  People still suffer the loss of their loved ones who were disappeared, tortured and killed as a result of this internal war.  So I figured that if anybody might be spooked by expansive government programs despite their thriving capitalism, wouldn’t it be the Chileans?

I was wrong.

As he explained, “Despite the fact of the political differences, there is a consensus in order to secure some minimum living standards. There is, of course, disagreement in the way that the State applies this particular public policy but that hasn’t been an obstacle to develop an intelligent system to secure minimal health standards. In some way, it’s a correction of capitalism.”

The Chilean approach begins with the principle that health is a human right.  But it is also practical. To compete in a global market, they understand that universal education is not enough. Certainly, a well educated—but sick—person is not productive.

Could our resistance to universal health care be simply a matter of ideology?  America–the land of opportunity— assumes a self-reliant folk will pull themselves up by the bootstraps Horatio Alger style.   We don’t tolerate “free loaders” and “system abusers” (not my words, but rather terms I heard used recently by opponents of the proposed health care reform). 

But hold on.  Aren’t the millions of people without insurance just like you and me? Maybe you have once been without insurance, or know someone in that situation?  They are usually ordinary citizens who followed all the rules, tried to be contributing and upstanding members of society—but alas, their bootstraps snapped.   You can hear their stories on National Public Radio: self employed, just out of college, excluded because of a previous medical condition, recently unemployed, retired but too young for medicare….the list goes on.  They were denied insurance or could not afford insurance which de facto translates into their having no access to health care.      

Insurance, of course, is a business that makes decisions based on the bottom line and not from the perspective that health is a human right (“human”, i.e., living organism that needs health to survive or will die).  Yet, somehow our national debate is not about access to quality health-care facilities, goods, services and programmes (the United Nations standard) but rather mandated access to health insurance, with a possible government option that will compete with the private sector.   It seems the market has trumped our rights in directing our national debate.

So now I am wondering:  what will be the consequence for those families who defiantly choose to put their precious resources towards essentials like food and housing instead of paying their monthly insurance premiums?   Isn’t there a reason why they can’t afford insurance now?

The ideological starting point of our national health reform debate could lead to some rather strange outcomes.  As the world looks on puzzled, they may be wondering if Horatio will ever repair his bootstraps.

The LWV proposal was always a nonstarter. It would have required recusal whenever a party or a lawyer in a case had made a contribution in excess of $1000.00 or engaged in a “mass communication” on behalf of a judicial candidate. A mass communication could have consisted of as few as 50 phone calls, letters or e-mails. That would have made it impossible to raise a meaningful sum of money in judicial campaigns in all but the smallest counties. It was a massive assault on public participation and it is proposals like this that have rendered groups like Common Cause, the LWV and the WCD largely irrelevant in making public policy.

A proposed amendment by former Justice William Bablitch was more reasonable. It would have required recusal for direct or indirect contributions amounting to $10,000or more(cash or in kind) by an attorney or party with a direct or indirect interest in the case.

I think this still goes too far – particularly in large counties and definitely for state wide races. Because it applies to “in kind” expenditures, I would think that it would require recusal for any significant GOTV effort or any significant communication of an endorsement by an advocacy organization. It would, again, make it extremely difficult for their to be significant public participation in judicial elections and would strongly tilt the playing field in favor of incumbents.

This is not to say that a $10,000 contribution or expenditure might not create a circumstance in which recusal is appropriate. It might – particularly in a circuit court race. But I don’t think it is fair to say that such a contribution would <em>always</em> create a potential for bias such that recusal should be warranted notwithstanding a judge’s subjective determination that she can decide the matter impartially.

But the largest problem, I think, is the suggestion that an “indirect interest” might create cause for recusal. While I would be reluctant to say that can never be so, I am concerned that – without further definition – it may be read to imply a broad duty to recuse based upon supporter’s ideological interest. Without getting into the details, this might be at odds with the what I believe to be the best application of first amendment jurisprudence to this area of the law, i.e., that the predispsotion to a particular legal position is not improper bias.

Justice Bablitch himself conceded that the term “indirect support” was problemantic and in need of further definition. But I think there is a problem with the endorsement of recusal standards that read more broadly than they can or should be applied. They permit unwarranted attacks on the legitimacy of the courts and the integrity of judges.

And that brings us to the rule changes that the Court did adopt. They most certainly do not amount to the Court “thumbing its nose” at the United States Supreme Court decision in Caperton. Although they might be improved, I think that the are properly read as perfectly consistent with that decision. They do not mean that contributions and independent expenditures can never create a potential for bias such that recusal is in order.

Rather, they make clear that recusal cannot be required “solely” due to lawful endorsements, contributions and independent expenditures. That seems right to me and saying so may have been necessary given some of the irresponsible calls for recusal made by groups like the WDC and OWN. The idea that Annette Ziegler ought to have recused herself because WMC filed an amicus brief in a case was wholly without merit and would have created an unworkable precedent.

I don’t think that the rule means that contributions and expenditures are to be ignored in assessing a question of recusal or that there cannot be circumstances in which they do create a potential for bias in which recusal is necessary. But the mere fact that contributions and expenditures have been made cannot, without more, require recusal.

Having said that, it’s not clear to me that the adopted rules could not be improved. They could be clarified to, for example, more clearly state what, at least in my view, they are intended to mean (e.g., making clear that they do not say lawful expenditures can never warrant recusal). They might be extended to offer more guidance. But they are, I think, better rules than the alternatives before the court.

Cross posted at Shark and Shepherd

Today, the “statisticization” of death has been reduced to a regulatory art form as part of analyses that agencies undertake to determine whether the cost of a regulation is justified by its benefits, including the number of lives it might save.  This procedure is championed by legal economists such as Cass Sunstein and Kip Viscusi, and the mathematics involved can be difficult to penetrate.  The density and abstraction of the calculations is probably for the better, because few of us could rationally and openly assign a numerical value to our own life or to the lives of our friends and family.  Viewing multiple lives in the statistical abstract, as Stalin may have done, perhaps seems to us less stomach-turning.  This concept is really nothing new: over two hundred years ago, Adam Smith theorized that sympathy was attenuated by distance.

I am not uncomfortable with cost-benefit analysis as a regulatory instrument, so long as it remains one tool in the regulator’s box and not a be-all, end-all directive that cannot be countermanded. 

I can envision some situations in which a regulator could reject or overrule its result.  For example, consider a scenario in which we could avert potentially catastrophic consequences of global warming if each nation on earth donated fifty percent of its GDP each year to a prevention fund; or, perhaps, if it accepted a fifty percent reduction in its citizens’ standard of living.  A strict cost-benefit analysis might sanction these measures; Richard Posner recently estimated the cost of the extinction of the human race due to global warming at about $600 trillion dollars.  But a national regulator would have no difficulty coming up with defensible reasons to reject them.  Sunstein himself recently seemed to admit that cost-benefit analysis has some limit when he wrote that “it does not tell regulators all that they need to know; but without it, they will know far too little.”

Despite my tenuous comfort with the use of cost-benefit analysis to put a price on lives, I am left to wonder whether reducing the value of life to a statistic carries a moral price of its own.  This week’s release of the movie “The Box” is apropos.  In this new Warner Brothers flick, a cash-strapped suburban couple receives a box from a mysterious stranger with the message that pushing a button in the box will have two effects: it will cause them to receive $1 million dollars, and it will cause someone to die somewhere in the world.  I don’t know how the movie ends, but the fact that these types of dilemmas still make good theater makes it clear that we as a society have not fully resolved our qualms over these matters.

Serious is fine.

Frantic is counter-productive.

I recently read a paper entitled The Future’s So Bright, I Gotta Wear Shades:  Law School Through the Lens of Hope. In this paper, law school professor Allison Martin and psychology professor Kevin Rand share results of their empirical study of first-semester law students’ levels of hope and optimism and how those levels correlate with law school grades and life satisfaction.  The professors differentiate between hope and optimism in this way:  “Hope is more strongly related to expectations for outcomes within a person’s control, whereas optimism is more strongly related to expectations outside of a person’s control.”  So I can hope that I will finish grading papers in a timely fashion.  I can only be optimistic about students submitting their papers on time.

Martin and Rand tested the following possible predictors for academic success:  LSAT scores, undergraduate GPAs, hope, and optimism.   They found that undergraduate GPA was the strongest predictor of first-semester law school GPA and that hope was the second strongest predictor of first-semester law school GPA.  Optimism and LSAT score were not significant predictors of first-semester law school GPA (though optimism was a strong predictor of life satisfaction for first-semester law students).

I’m predisposed to be skeptical of statistical analysis, and the authors note limitations in their study, but I think there are some good, practical insights in the article.  First, students who had measurably high levels of hope reported that they knew their grade was somewhat out of their control, but their performance on a test or paper was not.  They tackled writing and studying in methodical ways and often had a pattern or practice for studying.  Second, “high-hope students” did not set impossible goals like writing a whole paper the night before it was due or preparing an outline for a semester-long course a few hours before an exam. Third, “high hope students” did not worry much about how other students were studying.    In contrast, “low-hope students” saw their grade as well as their level of performance as out of their control.  They often focused more on earning specific grades than learning; they often did not have a plan for studying.

Things are getting more serious, but there’s still time for a plan.  Every student is different, and student plans should differ, but I’d like to offer a few suggestions.

*Set smaller goals working toward the larger goal.

*Get into a steady habit of studying.

*Remember that frustration is part of learning.

*Teach what you know to others in a study group composed of students you trust.

*Take care of yourself.  Sleep, eat well, exercise, laugh, commiserate, thank your loved ones for putting up with you.

And don’t lose hope.  I’m very optimistic that in a few years from now you will all be well-trained Marquette lawyers using your skills to help others.

(Editor’s note:  The image above was found on flickr, http://www.flickr.com/photos/kwerfeldein/1345598329/.)

]]> http://law.marquette.edu/facultyblog/2009/11/01/hope-and-optimism/feed/ 1 http://law.marquette.edu/facultyblog/2009/11/01/hope-and-optimism/ http://feedproxy.google.com/~r/MarquetteUniversityLawSchoolFacultyBlog/~3/vDVwaROQ5KM/ http://law.marquette.edu/facultyblog/2009/10/31/seventh-circuit-criminal-case-of-the-week-of-hearsay-and-bootstraps/#comments Sat, 31 Oct 2009 20:31:37 +0000 Michael M. O'Hear http://law.marquette.edu/facultyblog/?p=7725 The court staked out no new legal ground in its opinions last week, so I’ll just briefly describe a case that nicely illustrates a classic problem in evidence law.  Based on information provided by a confidential informant, Milwaukee police stopped a Ford Excursion on suspicion of drug activity.  Inside were Marc Cannon (the driver), David Harris (Cannon’s cousin), $8,900 in cash (found in Harris’s pockets), and a brick of cocaine.  The cash pointed to Harris’s likely involvement in the drug-dealing operation, but, without more, the evidence still seems short of beyond a reasonable doubt. 

At trial, the government thus relied heavily on the testimony of the confidential informant, Anderson, who recounted a series of interactions with Cannon and Harris.  Perhaps most damaging to Harris was testimony that Cannon told Anderson that his cousin was coming to Milwaukee with a signficant amount of cocaine.  This testimony, of course, was hearsay: Cannon himself did not testify, and Harris had no ability to cross-examine him.  In order to overcome the hearsay problem, the government relied on the exception for statements by co-conspirators.  But this required the government to prove that Cannon and Harris were indeed co-conspirators, and the strongest evidence of that were the very statements whose admissibility was at issue.  The government’s argument thus had something of a boot-strapping character. 

Making the argument even more awkward on appeal, the jury convicted Harris of possession with intent to distribute, but actually acquitted him on a conspiracy charge. 

The Seventh Circuit nonetheless rejected Harris’s hearsay argument and affirmed his conviction in  United States v. Harris (No. 08-4026) (Flaum, J.).

In order for co-conspirator statements to be admissible, the government must prove the existence of the conpiracy by a preponderance of the evidence, not the higher beyond-a-reasonable-doubt standard that governs the guilt determination at trial.  Even so, the Seventh Circuit conceded that it was a “close question” whether the government satisfied its burden of proof:

[T]he government’s evidence of the conspiracy centers around the disputed hearsay statements themselves (and while Bourjaily permits this kind of bootstrapping, it is not the strongest evidence of a conspiracy) and Harris’s presence in the Excursion when the police officers discovered a kilogram of cocaine.  (p. 9)

The court ultimately found the evidence sufficient, relying on the facts that Harris drove the Excursion from Arkansas to Milwaukee, Harris was carrying “an exceedingly large quantity of cash,” and Anderson’s statements were corroborated in a number of other respects.

As an aside, it is interesting to see the court use the possession of a large amount of cash as a basis for inferring drug activity.  This may be perfectly appropriate in the circumstances, but I wonder to what extent drawing this sort of inference unfairly disadvantages people who live in communities that are underserved by banks or who otherwise lack access to the sorts of financial services that many of us take for granted.  As I discussed in an earlier post, this is not the first time this fall that the Seventh Circuit has been confronted with the question of when criminal activity can be inferred from carrying cash.  Notably absent from these cases is any empirical research on how commonly and in what sorts of circumstances large sums of cash are carried for lawful purposes.

So yesterday we hosted a sold out gathering of over 100 lawyers for  “Conference on the Wisconsin Supreme Court: Review and Preview.”  Our meeting began with a plenary panel discussing the question of judicial recusal predicated on campaign contributions and speech. The discussion was moderated by the Hon. Diane Sykes (L’84) of the Seventh Circuit Court of Appeals and the panelists included Attorney Robert Henak (who has filed motions to recuse Justice Michael Gableman is connection with certain campaign ads and support), along with our own Chad Oldfather and me. Much of the discussion focused on the implications of the recent decision in Caperton v. A.T. Massey Coal Co. and the recent consideration by the Wisconsin Supreme Court of competing rules on recusal.

This discussion was followed with breakout panels discussing business and criminal law cases, respectively.

The business discussion was chaired by Professor Ed Fallone and the panelists were Foley & Lardner partner and adjunct professor Thomas L. Shriner, Jr., and prominent bankruptcy lawyer Len Leverson. Our criminal panel was moderated by Dean Michael O’Hear and featured DOJ lawyer Greg Weber (L’87), Madison defense attorney and adjunct professor Dean Strang and former circuit judge Michael Brennan.

The group then came together for a plenary session to discuss the ongoing debate over th role of the judiciary in the context of the court’s recent history. This panel was moderated by Michael Brennan and  consisted of Lester Pines, an experienced supreme court advocate, the Hon. Lynn Adelman of the United States District Court of Wisconsin and me. The group tried to clarify terms like “activism” and “restraint” and considered their use in relation to judicial campaigns.

Break our sessions followed lunch. A great discussion of the court’s cases in the civil rights area, largely focused on Coulee Catholic Schools v. LIRC, was moderated by Dean Strang and included Reinhart Boerner shareholder Dan Kelly and ACLU lawyer Karyn Rotker.  At the same time, a panel on the court’s liability cases was chaired by our own Jack Kircher (L’63) and featured two adjunct professors, Habush partner Tim Trecek (L’93) and Ralph Weberof Gass Weber Mullins. The group engaged in a lively discussion of the movement toward adoption of the Third Restatement in product liability cases.

The group came together one last time to preview cases on the Court’s docket for the ‘09-’10 term. Panelists were Tom Shriner, Lester Pines and adjunct professor and chair of the Appellate Practice section, Anne Berleman Kearney, principal of the Appellate Consulting Group. Cases selected by the panelists illustrated the incredible breadth of the court’s work.

In addition to Dean Joseph Kearney who generously and enthusiastically supported this project, I would like to thank our participants and all who helped put it together including Christine Wilczynski-Vogel, Carol Dufek, Ryan Rau, Kay Amhaus and Debbie Moore. I would also like to thank chair Anne Kearney and her colleagues on the board of the Appellate Practice section for their generous co-sponsorship and support.

To all who participated or attended, we’ll see you next year in Eckstein Hall!

Cross posted at Shark and Shepherd

Anyway, if you followed those posts with any interest, or if you are generally interested in the experience of refugees, then you may want to review the recently-released report from The Advocates for Human Rights, entitled A House with Two Rooms: The Final Report of the Truth and Reconciliation Commission of Liberia Diaspora Project.  (Confession: as previously disclosed, I worked for the Advocates during and after law school, and I think it’s a terrific organization.)

A House with Two Rooms reports the findings of the Diaspora Project portion of the TRC’s work, which collected information about the experiences of the Liberian diaspora during the Liberian wars, during their flight from Liberia, and in the countries in which they resettled.  Amazon summarizes it this way:

From 1979 to 2003, more than 1.5 million Liberians were forced from their homes to escape civil conflict. Hundreds of thousands became refugees and many eventually made their way to countries of resettlement including the United States. Most of their stories have never been told. This report on the experience of the Liberian diaspora, entitled A House with Two Rooms, documents the experience of human rights abuses and violations of international humanitarian law that forced Liberians to leave the country. It is based on an analysis of more than 1600 statements, fact-finding interviews, and witness testimony at public hearings held in the U.S. The report also tells the story of the “triple trauma” experienced by members of the diaspora during their flight through Liberia and across international borders, while living in refugee camps in West Africa, and in resettlement in the U.S. and U.K.

I reviewed the Executive Summary and some of the interior chapters.  I am a little ashamed that I can’t stand to read much more of it right now, because it reminds me too much of what I heard from Liberian refugees during the period in the late 1990’s when I worked with refugees. The atrocities of the wars in Liberia were beyond what I ever imagined human beings could do to each other, until I heard it for myself. If you care to read a representative story, here is one from the Executive Summary, at pages 10-11.  (Or, just take my word for it that it’s terrible, and skip over the block quote.)

At the initial stages of the war, I moved to Ninth Street in Sinkor, Monrovia… The children were outside cleaning the yard. Suddenly they ran inside and said that they saw armed men coming. Moments later, Taylor’s men busted in. One of them said, “This is the dog I’m looking for.” He told us to come outside. Myself, my ten children, and my wife obeyed. The NPFL [commander] knew me…He had run against me in an election…before the war. He said to me, “You cheated me during the election, but now I am in power. I will teach you a lesson you will never forget.”

He told his NPFL boys to take my eldest daughter into the house. She was thirteen years old. They dragged her inside and dragged me in after her. [The commander] raped my daughter in front of me. My father (my daughter’s grandfather) was still in the house. He rushed at the NPFL men, trying to stop the rape. One of the men – I don’t know his name – shot and killed my [father] right there. [The commander] then brought me and my daughter back outside. He said, “I’m going to show you what I came here for.” He beat the children with the butt of his gun. He made two of my sons, who were seventeen and twenty, drink dirty water with the urine of one of the NPFL men in it. When the twenty year old refused, he shot him in the foot. [The commander] stabbed my other son, who was eighteen, in the elbow with his bayonet.

He then began to beat my wife. He told her to lay on her back and stare at the sun. [The commander] said, “You will eat your husband’s heart very soon.” He took the daughter who had been raped. [The commander] held her and said, “I want you to know how you all will die.” He ordered one of his men to cut off my daughter’s head. She was beheaded in front of our eyes. They dragged me over to lay beside her body. [The commander] said, “You will be the next one.”

Then I heard heavy shooting. ECOMOG was coming. The NPFL scattered. Before [the commander] left, he made a remark. He said, “Anywhere in Liberia I meet you or your family, I will kill you.”

I do not know how human beings like the man who lived through that experience go on with their lives, but thousands of them do, thousands of them right here in the United States.  When I was practicing refugee law and hearing these stories, I was focused on how to help each individual, and didn’t take much time to think of the larger picture of how the refugee and asylum law systems function (or do not).

Since I began teaching refugee law here at Marquette, I became more aware of the strange gulf (strange to me, anyway) between the fields of transitional justice, which, as I understand it, seeks to help societies that are in the process of recovering from or transforming after widespread human rights abuses, and refugee law, which seeks to provide refuge from those fleeing the abuses as they occur.

It is striking that, as far as I know, this Diaspora Project is the first time that a Truth and Reconciliation Commission has sought, methodically and purposefully, on such a large scale, to obtain information from the ones who fled the horrific violence and resettled elsewhere.

It seems to me that such interviewing of refugees should be a standard part of providing for their needs and giving them refuge.  And that it should be done at the time they are fleeing, not (or at least, not solely) years afterwards.  Not only because having their stories heard and believed is part of what they need, for healing, but because the evidence they could provide would be ammunition for investigating and, perhaps, stopping the human rights abuses as they occur, or even preventing them.

If you want to know more about the stories of the incredibly resilient, inspirational Liberian diaspora, a House with Two Rooms is available for purchase on Amazon or from the Advocates by mail.  It is also available for free download (in sections) on the Advocates’ website.

I encourage students to follow in Doug’s footsteps and enter national writing competitions.  Many competitions award cash prizes and give students publication opportunities.  A link that contains information about student writing competitions is here.

Congratulations, Doug!

In Ian Ayres’ famous study of car dealerships in Chicago, it appeared that white men got the best (lowest) opening price for their cars, while black women got the worst opening bids.  In Melissa’s group, there was a wonderful mix of an older white male American (Howard Gadlin), Melissa herself (white female younger American), a young ethnic Chinese man (Andrew Lee), and two native Turkish speakers, so this was a great gender and ethnic mix to test.  

It turns out that this group found exactly the opposite of what Ayres found. 

Each person went in to ask about the jewelry box over the course of an hour.  The one potential failing of the test which they did not realize until later was that they dealt with different salespeople, so one of the differences could be the salesperson.  (This was not controlled for in the Ayres study, either.)  Results found by this group for the jewelry box:

Older white male—55 lira

Younger white female—45 lira

Young Asian male—30 lira

Turkish speaking females—25 lira

Although there are potentially many explanations – Melissa tried to ask the seller about this afterwards but to no avail – I have a few.  My guesses are based on my own interview with a different seller (our group of three talked for a long time to a different vendor of lights and scarves after one colleague went in to ask about a light and was quoted 150 lira, which our Turkish colleague then purchased for her at 50 lira).  Once we finished the purchase, we asked the indulgence of this wonderful guy who talked to us over tea for over an hour about his experiences in the market.  He was also an American citizen who had lived in San Francisco for ten years.  Based on the conversation with him, the vendors know that Americans don’t like to bargain and will only bargain for a round or two of counteroffers.

So, here is my thinking on Melissa’s experiment.  First, the store owner assumed that the older male had more money.  Second, the store owner assumed he would not bargain all that much (this would actually be somewhat similar to one of Ayres’ hypotheses on lack of BATNA or ability to bargain.) 

Melissa, who went in next, may well have gotten “the nice eyes” discount.  As explained by our store owner, he often will give a lower price to a smiling, nice-looking buyer.  (Note to self: reapply lipstick before going into bazaars.)  Melissa also thought that the seller could have assumed she would have less money to spend.  Andrew Lee, the recipient of the 30 lira price, thought that perhaps the seller assumed he had very little money — he was casually dressed and young, and there are not slews of wealthy Asians coming through Istanbul.  (According to our store owner, the wealthiest tourists come from the Gulf states.)  Finally, as expected, there is the local price – and this similarity factor, more than the discriminatory factors discussed in the Ayres study, seemed to have the most to do with the opening price.

Cross posted at Indisputably.

However, a host of recent trends in criminal law are putting tremendous pressure on the old act-based approach and pointing to a new paradigm in which a defendant is punished based on his propensity to commit crime, with little or no regard to the severity of the particular act of which he has been convicted (if, indeed, there has been a conviction at all).  Some examples include the use of relevant conduct in the federal sentencing guidelines, three strikes laws and other sentence enhancements based on prior convictions, felon-in-possession laws, civil commitment of sex offenders, and preventive detention of terrorism suspects.  Such innovations are suggestive of a system in which we punish bad people, not bad acts.  To be sure, there is a wide gray area in which it is unclear whether we are punishing acts or people, but when (for instance) we impose what is effectively a life sentence for the theft of three golf clubs (as was done under the California three strikes law), there can be little doubt that the person, not the act, is the target of our condemnation.

Although sentencing law may most dramatically reveal the competition between the act and propensity paradigms, evidence law is also implicated – perhaps most importantly in Federal Rule of Evidence 404(b), which seems pretty clearly to embrace the act paradigm.  More specifically, the rule states that evidence of other bad acts is not admissible to show the character of a defendant or his propensity to commit crime.  Yet, to judge by recent Seventh Circuit cases, it seems that evidence of uncharged drug offenses  and prior drug convictions are routinely used against defendants in drug cases.  (See, for instance, my post here.) 

Last week, the court shed some light on the Rule 404(b) exceptions in United States v. Conner (No. 07-3527) (Kanne, J.). 

Conner was charged with distribution of crack cocaine in a single transaction on December 20, 2006.  Yet, during Conner’s trial, the government presented the jury with evidence regarding other drug transactions involving Conner before and after that date.  The trial court admitted the evidence as “intricately related” to the charged crime.  The Seventh Circuit, however, determined this to be an improper use of the “intricately related” doctrine.

The doctrine was characterized by the Seventh Circuit this way:

Evidence of other bad acts is admissible when those acts are so intricately related to the charged conduct that they help the jury form a more complete picture of the crime.  Under this “intrictately related” doctrine, courts have admitted evidence that is necessary to fill a conceptual or chronological void, or that is so blended or connected that it incidentally involves, explains the circumstances surrounding, or tends to prove any element of, the charged crime.

Because the other bad acts used against Conner involved some of the same cast of characters as the December 20 transaction, the government argued that the evidence established context and showed the relationship among the co-consprirators.  But Conner was not actually charged with conspiracy — only with the substantive crime of drug distribution.  As to the one transaction that was at issue in the case, the other bad acts did not actually serve to “complete the story.”  Thus, the Seventh Circuit characterized the government’s use of the evidence as a “circumvent[ion]” of Rule 404(b).

The court’s analysis suggests that the “intricately related” doctrine might have more play in a case in which conspiracy was actually charged.  On the other hand, the court seemed generally skeptical of the propriety of the doctrine, characterizing it as “unhelpfully vague” and quoting earlier decisions in which courts had expressed the concern that the doctrine “threatens to override Rule 404(b).”

But, what the Seventh Circuit gives with one hand (narrow interpretation of the intricately related doctrine), the court takes away with the other (expansive interpretation of the knowledge/intent/mistake exception to Rule 404(b)).  Conner lost because, in the court’s view, his other bad acts went to establish his state of mind.

Rule 404(b) does indeed permit the use of prior bad acts to prove knowledge, intent, or absence of mistake.  Thus, for instance, it would be proper to use a defendant’s earlier drug transactions to rebut his claim that he had no idea the white powder in his possession was cocaine.

However, Conner did not present a mistake defense or otherwise clearly contest knowledge or intent.  No matter, said the Seventh Circuit: “By pleading not guilty to the charge and denying any wrongdoing, Conner placed the burden on the government to prove each element of the crime [including intent] beyond a reasonable doubt.”  The court concluded, “Thus, we find that the evidence of Conner’s previous drug transactions was properly directed at an issue other than his propensity to commit the crime.”

The court seems to suggest that the usefulness of prior bad acts in establishing intent negates the possibility that the evidence is being used for propensity purposes.  But these purposes are not mutually exclusive.  Indeed, Conner’s own bad acts seem most clearly relevant to intent only insofar as Conner’s intent to commit other drug crimes supports an inference that he also intended to commit a drug crime on December 20, 2006 — in other words, that he has a propensity to commit drug crimes.

The analysis in Conner contains no clear limiting principle on the admissibility in drug dealing cases of evidence of other drug transactions.  The same criticism that Conner levels against the intricately related doctrine might be leveled against its own expansive interpretation of the knowledge/intent/mistake exception.

One might wonder whether the court is just going around in circles when it narrowly interprets the intricately related doctrine, but then expansively interprets the knowledge/intent/mistake exception.  The court makes clear, however, that it believes there is a real difference between admitting other bad acts under an intricately related theory and an intent theory: in the latter setting, the defendant is entitled to a limiting instruction highlighting for the jury that it should not use the bad acts for propensity purposes.  So, the court apparently does see itself as doing something to preserve the traditional act-orientation of criminal law by channeling other bad acts evidence into the knowledge/intent/mistake exception.  Whether jurors actually pay attention to limiting instructions is another question . . . .

David Ingram of the National Law Journal reports:

Ashcroft v. Iqbal, the 5-month-old U.S. Supreme Court decision that has become a thorn in the side of the plaintiffs bar, will get a Capitol Hill airing on Tuesday.

The House Judiciary Committee is scheduled to hold the first congressional hearing on the far-reaching May ruling, which raised the pleading standard for most civil complaints, making it more difficult to keep cases from being thrown out.

The hearing isn’t likely to be the last time Congress weighs in on the matter. Sen. Arlen Specter, D-Pa., has sponsored legislation to return to an earlier pleading standard, and he wields the gavel in a Senate Judiciary subcommittee.

Because so much is at stake for both trial lawyers and the business community, I would not be surprised if this is the first many salvos on what exactly must be proven to survive a Rule 12(b)(6) motion.  Additionally, because many of the lawsuits involved concern employment discrimination plaintiffs, this goes right to the heart of whether those complaining of discrimination, harassment, or retaliation in the workplace can get their case heard of the merits.

We were divided into groups for this exercise—I had the pleasure of venturing forth with Vanessa from Israel and Yilderoy from Turkey. My general process occurs in the following steps: (1) ask for the price for one jersey; (2) ask for the price for three jerseys with the assumption that most vendors are willing to give you a break on more; (3) ask for the price in dollars with the assumption that sometimes the exchange rate helps lower the price further; and then (4) ask for the price in cash with the assumption that, if the vendor would accept a credit card at all, he would definitely prefer to receive cash in either currency. Since we had a native Turkish speaker, we agreed that we would also add another step of seeing what happens in the native v. tourist price. (On another note, we have discovered that even for restaurants, there is a local versus tourist price. The posted price, if it exists, is for the tourist. Natives get a lower price. This also occurred last spring in Rome where a cappuccino (a necessity of life for me) across the street from the conference center was three times more for me than the residents.)

So, here is what happened. I found the jerseys that I liked and started bargaining. Step one—how much is one? 15 Turkish lira. The exchange rate is about 1.4 Turkish lira to a dollar so this meant the opening price was about $10.70 per jersey and that I would have to spend over $32 if I bought a jersey for each child. Step two—how much for three? 40 Turkish lira (about $9.52 per jersey). Step three—how much in dollars? 25 dollars for three (now $8.33 per jersey). Step four—Yilderoy starts bargaining in Turkish—I don’t know what was said, but the calculator was out and the result was about $21.80 for the jerseys (now $7.26 per jersey). Finally, step five, pulling out a nice crisp $20 bill and saying I will take them now if he takes the bill. Done! Final price is $6.66 per jersey.

A few thoughts—first, one clearly has to spend some time to do this. It would be completely understandable should you decide that the $10 I saved is not worth the 20 minutes I spent. For us, this was fun and educational. It also is culturally expected– at least over jerseys. For example, we were told that one did not bargain over food in the bazaar and this seemed to be the case. Buying Turkish delight on the last day to take home, I asked for a discount since I was buying two boxes and was given free samples instead. Of course, this was still well worth it to me and quite delicious.

Second, I do think that you need to be cognizant of your ethics here—I felt okay bargaining for $10 off on the jerseys but I do feel the guilt of ostensibly appearing to be the ugly American and bargaining over what could be real money for the vendors. Vanessa challenged me on this—why would I assume that I have a nicer life or more money? Shopkeepers affording stalls in the Spice Market need to be doing well, she noted, and I need to get over myself. In my attempt not to be patronizing, perhaps I am being even more so.

Either way, the story provided much food and fun for thought!

 “Hmm? Oh, yes please.  Did you see this story in the newspaper?  The Zombie Party has come out in favor of the President’s health reform plan.”

 “Isn’t that good?  I thought that you were in favor of health reform.”

 “I am, but I don’t trust these Zombies.  They are not rational.  You can’t talk to them.  Have you seen the television footage of those town hall meetings?  It’s just a sea of screaming faces.  The raw emotion of these Zombies is terrifying.”

 “So why is the Zombie Party supporting health care reform?”

“The story says that they will support the plan if the Democrats put the ‘death panel’ provisions back in.  It seems that Zombies favor ‘end of life planning,’ although for some reason their representatives in Congress keep referring to it as ‘planning for the end of life.’  I just don’t trust these Zombies.”

“Why not?  The President has said that he is open to including reform ideas from across the ideological spectrum.  This could be a good first step.”

“He’s your President, not mine.  The President is a Zombie himself.  He was full of promises during the campaign, but what has he accomplished since?”

“Well for one, his election inspired Zombies across the country.  This is the first time our country has elected a Zombie President, after all.  And he has had some great foreign policy successes.”

 “He ripped the arm off of the French Prime Minister!”

 “I know.  It’s about time we stood up to the French.”

 “I still say he’s not a legitimate President.  He’s undead.”

 “There you go again.  There is nothing in the Constitution that says that the President has to be alive.”

“Do you really believe that the Framers foresaw that a meteor containing a mutant virus would strike the United States and turn dead people into Zombies?”

 “I saw a professor on Fox News who said that John Jay was a closet Zombie.”

 “I warned you about watching that channel.”

 “I’m surprised you don’t like the President.  He supports immigration reform, doesn’t he?  You favor that.”

 “(sigh) You’re right.  I do like the fact that the President has called for a bill that would create more visas for unskilled workers from Mexico.  But I don’t understand why he said ‘especially the plump ones.’”

 “See.  We can agree on some things.  Let’s just say that everyone, even a Zombie, is entitled to a political opinion.  There is too much partisan fighting going on in our society.”

 “I can’t argue with that.  I certainly don’t want to fight with you.  Especially when I see the way you look at me.  I just melt.”

 “That’s because I could eat you up, I love you so.  Here.  Have another jelly donut.”

I could go on about Mike, but I’d rather disagree with him. In response to a question of the audience, he criticized the McCain-Feingold Act and other efforts to wring money out of politics.

I agree with that.

But Mike went on to say that he believes that the answer to concerns about undue influence is mandatory disclosure. We should all know who has given what to whom.

I used to believe that.

Now I’m not so sure.

The difficulty is in the politicization of what used to be nonpolitical. It is in the shrinkage of those spaces in which we could put our political differences aside.

Much has been written about efforts to publicize (and map the addresses) of supporters of Proposition 8 in California.  In our little part of the world, AALS engaged in a curious, ineffective and symbolic boycott of a hotel owned by a supporter of the Proposition.

This type of pressure is even placed upon lawyers engaged in pro bono representation. Locally,  an advocacy group bearing the ironic name of One Wisconsin tried to organize a phone campaign to pressure the employer of a young lawyer who was engaged in the pro bono representation of parties contending that the Wisconsin marriage amendment was constitutionally enacted.

And, I know, its not just the political left.  A Bush administration official suggested that corporate clients might want to drop law firms that had offered pro bono representations to Guantanomo detainees. Not cool.

Most of the time, the identity of a lawyer and her client will be public knowledge and nothing can – or should – be done about it.

But the willingness of partisans to engage in economic warfare against their opponents  suggests to me that disclosure of contributions is not am unmitigated good.

I appreciate that the frequently offended are exercising their first amendment rights. I appreciate that they think they are subjecting the politically active to the “test of the market place.”

They can do these things. I just think they shouldn’t.

The problem with making too much of life political is that it will inevitably result in escalation. If the left decides that the NFL must be pressured not to allow Rush Limbaugh as a team owner, then the right may feel compelled to agitate against Keith Olbermann’s participation in NBC’s Sunday night coverage.

And that will result in a substantial decrease in public participation. If people are going to boycott my place of business or otherwise seek to ostracize me because I have supported a particular candidate or cause (or represented an unpopular client), I may well decide that speaking out or acting as an advocate for something that I believe in or a client that needs representation is simply not worth it.

This will be particularly true for speakers who are in a business or profession that requires them to appeal to a broad spectrum of persons. Few businesses can decide to appeal only to conservative or liberal customers. The easiest course of action when someone complains about the political participation of its owners or employees is to shut up.