Review of “Law Lit: From Atticus Finch to The Practice” edited by Thane Rosenbaum

This book, subtitled “A Collection of Great Writing About the Law” is a compendium of classic depictions of the legal system in action.

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Selections include passages from works such as Kafka’s The Trial, Shakespeare’s The Merchant of Venice, Richard Wright’s Native Son, David Mamet’s The Verdict, J’accuse by Emile Zola, and much more, including of course, Harper Lee’s To Kill a Mockingbird.

The excerpts are grouped into nine parts: The Law Elevated; Lawless Law; The Law and Liberty; Law Made Low; The Law Laborious (of course you will find Scott Turow’s One L in this section, but you will also find a piece from Lewis Carroll’s Alice’s Adventures in Wonderland); The Lawyer As Lout; The Law and the Loophole; Layman’s Law (e.g., A Civil Action by Jonathan Harr); and The Law and Longing.

Rosenbaum observes, much as Robert Cover famously did (Cover, Robert M., “Violence and the Word,” Yale L.J. 95:1601, 1986) that it is in the courtroom where one form of violence is substituted for another. In some rather deft writing of his own, Rosenbaum states in his Introduction:

The legal system offers a bloodless way of moving the fight from the streets to wood-paneled, marble-walled arenas where the pounding of a gavel is presumed to soften the blow. And once inside the courtroom, everyone is aroused by the spectacle of warring combatants dressed in coats of Armani, arguing subtle points, disputing facts, badgering witnesses, distorting truths, doing whatever it takes to win.”

People are obsessed with these legal spectacles, he avers:

While many have a poor opinion of lawyers and the legal profession, these same people can’t seem to get enough of the law when it comes to their consumption of culture.”

And when the law doesn’t feel moral or just, Rosenbaum contends, this is where the artist enters, at “the intersection between the longing for law and the consequences of law.” (Yet another sign of Cover’s influence, with his seminal article “Nomos and Narrative” on the ways in which law serves as a bridge between what is and what ought to be. (Cover, Robert M., “The Supreme Court, 1982 Term — Foreword: Nomos and Narrative” 97 Harv. L. Rev 4, 1983.)

Lawyers make good fictional characters, Rosenbaum notes. And law literature plumbs the depth of human experience that is generally omitted from legal opinions. Rosenbaum endeavors to fill that gap with this very fine selection of the best of legal literature. In what other kind of anthology would you find represented the work of Margaret Atwood, Langston Hughes, Charles Dickens, and Johnny Cash (“Folsom Prison Blues”) all in the same place?

Evaluation: There is something in here for everyone, whether you are a legal professional or you just love great writing. The author does a fine job preceding each selection with sufficient background to enable you to appreciate the upcoming passage.

Published by The New Press, 2007

September 16, 1818 – Connecticut Finally Approves a State Constitution

The first formal government of Connecticut was set forth by The Fundamental Orders, adopted on January 14, 1639 OS (January 24 NS). (You can read the text here.) It has the features of a written constitution, and is considered by some as the first written Constitution in the Western tradition, thus earning Connecticut its nickname of The Constitution State.

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In 1660, King Charles II reassumed the monarchy in England, effectively ending the period of the English Revolution. (The English Civil War led to the trial and execution of Charles I, the exile of his son, Charles II, and replacement of English monarchy with, first, the Commonwealth of England (1649–53), and then with a Protectorate (1653–59) under Oliver Cromwell’s personal rule.) Since Connecticut had never been officially recognized as a colony by the crown, the General Court determined that the independence of Connecticut must be legitimized. Connecticut’s governor, John Winthrop, Jr., was sent as an emissary to negotiate with the English government, and set sail for England on July 23, 1661. He proved successful in his mission, and the English attorney general approved a bill for incorporation of the Connecticut Charter. After being officially sealed and registered, the document was returned to Connecticut and adopted by the General Court on October 9, 1662. (You can read the text here.)

A copy of the original charter granted to the colony of Connecticut by Charles II in 1684 attached to a copy of the Acts and Laws of the Colony in 1750

A copy of the original charter granted to the colony of Connecticut by Charles II in 1684 attached to a copy of the Acts and Laws of the Colony in 1750

The Connecticut Charter displaced the Fundamental Orders to become the governing authority for the colony. Its practical effect on the government however, was minimal and Connecticut continued to operate much as it had under the Fundamental Orders.

The General Assembly formally approved the Declaration of Independence with the other colonies. However, in its resolution the legislature it declared that Connecticut’s government, “shall continue to be as established by Charter received from Charles the second, King of England, so far as an adherence to the same will be consistent with an absolute independence of this State on the Crown of Great Britain…” While eleven of the thirteen colonies had drafted state constitutions by 1786, Connecticut elected to continue operation under the Charter. Connecticut retained this scheme of government until 1818, when the first true constitution was adopted.

As a result of the 1818 constitution, the Congregational Church was finally disestablished. (You can read the text of that constitution here.)

(In 1801, Danbury, Connecticut Baptists sent a letter to President Thomas Jefferson complaining that, in their state, the religious liberties they enjoyed were not seen as immutable rights, but as privileges granted by the legislature — as “favors granted.” Jefferson responded, in part:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State.”

[His reply did not address their concerns about problems with state establishment of religion — only of establishment on the national level.] The letter is however most famous for its use of the phrase “wall of separation between church and state,” which led to the Establishment Clause that we use today. You can read Jefferson’s entire letter here.

In other matters, the 1818 Constitution solidified new voting rights, and separation of powers was finally brought to Connecticut government. An independent judiciary was approved.

The constitution did not significantly change the role of the executive, and the branch remained relatively weak. The executive did however, became a constitutional and independent part of the government.

The legislative branch also experienced a few changes. The Council was renamed the Senate. By constitutional mandate, half the legislative sessions were to take place in Hartford with the other half convening in New Haven.

Preamble of the 1818 Constitution

Preamble of the 1818 Constitution

Although many amendments were added over the years, the Constitution of 1818 remained in operation until 1965. There was also a Constitution of 1955, but it merely incorporated prior amendments into the main body of the constitution.

Connecticut currently operates under the constitution passed in 1965, the text of which is here. The primary purpose of the 1965 constitutional convention was reapportionment of the representatives in the lower legislative house. Apart from this major change, a majority of the language from the 1818 Constitution was reaffirmed verbatim or almost verbatim in 1965. The Constitution of 1965 remains the supreme authority in Connecticut today, although it has been amended quite a few times. You can access a legislative history of amendments here.

September 7, 1977 – The U.S. Agrees to Cede Control of the Panama Canal

On this day in history, President Jimmy Carter and Panamanian Chief of Government Omar Torrijos signed two treaties: The Permanent Neutrality Treaty and The Panama Canal Treaty.

The first, the Permanent Neutrality Treaty, declared the canal neutral and open to vessels of all nations. The second, the Panama Canal Treaty, provided for joint U.S.-Panama control of the canal until December 31, 1999, when Panama would take full control.

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The Senate’s debate over the Panama Canal in the spring of 1978 was the first to be broadcast live on radio from the Senate chamber. Supporters of the treaties argued that American control of the canal was a legacy of colonialism. Opponents feared that relinquishing the canal represented a decline in U.S. strength.

On March 16, 1978 the Senate passed the Neutrality Treaty and on April 18, 1978, it approved a resolution of ratification of the Canal Treaty. Sixteen Republicans joined 52 Democrats to approve the treaty with 68 votes, just one vote more than the required two-thirds majority. Many years later, recalling the political tightrope of the debate, Senator Robert Byrd summed it up the politically unpopular fight for the treaties this way: “Courage? That’s [Minority Leader] Howard Baker and the Panama Canal.”

You can read the text of the two treaties shown with the Senate modifications here.

The canal today:  freighters pass through the Miraflores Locks. Kip Ross/National Geographic/Getty Images

The canal today: freighters pass through the Miraflores Locks.
Kip Ross/National Geographic/Getty Images

Joint Review of “Extraordinary Rendition” by Paul Batista

What would it be like for an American lawyer to have the job of defending an accused enemy of the state in a dictatorial country? It would be much like fictional Byron Carlos Johnson’s undertaking in Paul Batista’s Extraordinary Rendition, except Johnson was working in the United States of America. Post 9/11, there were many changes in the legal system in response to concerns for national security, including establishing a new category of “enemy combatants,” whose rights are extremely limited. Batista’s novel takes this factual state of affairs somewhat further.

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Byron Johnson is a successful partner in a large New York law firm. He has been asked to represent Ali Hussein, a suspected Al Qaeda money manager. Hussein has been the subject of “extraordinary rendition,” the practice of sending prisoners to countries that allow torture of those prisoners. Hussein was held and routinely beaten for several years in various countries, but has not been charged with a crime, and has not been allowed to see any visitors.  The U.S. government has finally decided to bring Hussein back to the US. for trial.  Johnson accepts the case on a pro bono (without charge) basis. The government allows Johnson to speak to Hussein, but only for very brief meetings.   

Johnson is not even told what the charges are against Hussein.  The government insists that Johnson should just get Hussein to confess, because the need for “national security” overrides any democratic principles relating to the rights of the accused. But Johnson wonders:

…did the Constitution give Ali Hussein as a foreign national arrested overseas the right to a speedy trial, to effective representation by a lawyer, to a freedom from cruel and unusual punishment and to other constitutional guarantees?”

It’s a reasonable question, but the answer is fairly clear: No.

Johnson’s work on behalf of Hussein begins to take so much time (on a non-paying) basis that for this and a few other reasons his partners expel him from the firm.  Nevertheless, he soldiers bravely on with the assistance of Christina Rosario, a beautiful Columbia law student who had worked for his firm as a clerk the previous summer.  Johnson’s burden is greatly increased because, not only is he not given a copy of the indictment, he is also denied access to the government’s evidence due to “national security” concerns.  

[The state secrets privilege is a common-law evidentiary rule that permits the government “to block discovery in a lawsuit of any information that, if disclosed, would adversely affect national security.”  (Ellsberg v. Mitchell, 709 F.2d 51, 56 (D.C. Cir. 1983)  The Department of Justice (DOJ) under George W. Bush radically expanded the use of the state secrets privilege, transforming the privilege, according to critics, into an alternative form of immunity that shielded the government and its agents from accountability for systemic violations of the law.]

Johnson enlists the aid of Simeon (“Sy”) Black, a free lance reporter closely modeled on Seymour Hersch.  Through Black’s contacts, one of whom is a very competent private detective, Johnson learns a great deal about some shadowy (presumably CIA and Department of Homeland Security) thugs who are dictating case strategy and management to the government’s lawyers.  

All of the people helping Hussein come into danger themselves, as the tension ratchets up for a riveting conclusion.

Separate discussion by Jim and Jill:

Jim:

One one hand, the novel does not exaggerate its depiction of the legal rights of “enemy combatants,” which are virtually nonexistent.  Enemy combatants can be held as prisoners of war until the war has ended.  But of course a critical question is, how will we know when the war on radical Islam has “ended”?  As the situation stands now, these “enemy combatants” are not entitled to the protections of the Geneva Conventions, which apply only to recognized (uniformed) armed forces of legitimate states.  The government may, but does not have to, try them for a crime. (Just because you’re a “criminal” doesn’t mean you are not also an “enemy combatant.”) It may do so if it thinks it has a good case that can be presented without jeopardizing important national secrets.  Otherwise, enemy combatants just have to wait in limbo (or very uncomfortable confinement) until the government is convinced that the “war on terror” has concluded.

On the other hand, Batista’s story does not ring true in two important respects.  

First, in the book, the government blatantly attempts to suborn the attorney-client relationship by strong-arming Johnson to turn on his client to obtain information.  That seems unlikely to me.  The government will put a lot of pressure on a lot of people, and it may make it very hard for defense attorneys to obtain information, but I am not aware of any accusations of the government trying to induce a lawyer to turn on his client.

Second, the non-lawyer government agents in the book are almost cartoonish Stalinist-like goons.  In real life, they might even assassinate the likes of Ali Hussein, but they rarely if ever are known to go after (in a physical way) journalists or legal staff for representing the accused. 
 
Batista is an experienced criminal defense lawyer, and his sympathies for the accused come through clearly in this book.  His novel can be read as a moderately far-fetched, chilling tale or as a pointed indictment of the current American legal system as applied to suspected terrorists.   I prefer to read it as the former, and give the author some poetic license. 

Jill:

In general, I found the depiction of lawyers to be very good.  I also liked the author’s very apt description of “the sycophantic system of justice” by which lawyers and justices interact with one another.   But I thought the parts involving sexual encounters were cringe-worthy.  This passage, for example, sounds as purple as anything in a bodice-ripper:

Christina looked up at the handsome ridges of his face – the taut cheeks, the sloping forehead that reminded her of Cary Grant’s, the hazel eyes, the high cheekbones – as he in turn stared down at the beauty of her unblemished face and shoulders, the alluring contours of her breasts, and the tautness of her young stomach.”

My own stomach almost emptied at that last part.  I think the author should stick to describing law firms and legal procedure.

I agree with Jim that it is unnecessary to turn government agents into caricatured goons to establish the potential for abuse of the law.  As the great legal scholar Robert M.Cover wrote:  “Legal interpretive acts signal and occasion the imposition of violence upon others:  A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. … Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.”  (Robert M. Cover, “Violence and the Word,” Yale L.J. 95:1601, 1601.)

In addition, there are enough sufficiently frightening legal issues that have arisen from the matter of abducted terrorists without the need to add the cardboard bad guys.  The Executive Branch continues to argue (just as was true in the book) that victims of the “extraordinary rendition” program should not have their day in court.  As Ben Wizner, staff attorney with the ACLU National Security Project, observed, “The Obama administration has now fully embraced the Bush administration’s shameful effort to immunize torturers and their enablers from any legal consequences for their actions.” The DOJ continues to assert the “States Secrets Privilege.” Whistleblowers, like the characters of the lawyer Johnson and Sy Black, continue to be the focus of government wrath, rather than those whose illegal deeds have been exposed by them.  In addition, even two senators from the Senate Intelligence Committee claim “the Justice Department had secretly interpreted the so-called Patriot Act in a twisted way, enabling domestic surveillance activities that many members of Congress do not understand.” 

As for acts of torture, documents indeed have revealed that hundreds of detainees in U.S. custody in Iraq, Afghanistan, Guantanamo Bay, Cuba and secret prisons around the globe had been abused, tortured and even killed by government agents using coercive interrogation tactics secretly authorized by the Bush Administration.  There is no way to know if these practices have continued.  At the same time however, as Jim points out, there has been no suggestion that such practices have ever been used against people involved in trying to protect and/or defend the victims of such abuses.  The abuses that have been documented are horrific enough without adding elements to the story that may cause people to doubt all of it.

Finally, Johnson’s initial question, about Hussein’s rights versus the government’s sometimes overzealous concern for national security, never gets answered.  To be fair, it has never been answered by this country, either.

Evaluation: As can be discerned in the Discussion Section, Jim and I each had fairly similar reactions to this book. In brief, we thought the legal portions were well done, the caricatured bad guys unnecessary, and that the “romantic” scenes should have been omitted, or at least, rewritten.

Rating:  3.25/5

Published by Astor + Blue Editions LLC, 2013

August 24, 1954 – President Eisenhower Signs The Communist Control Act Into Law

On this day in history, President Dwight Eisenhower signed legislation outlawing the Communist Party of the United States.

President Eisenhower in 1954

President Eisenhower in 1954

Eisenhower issued a statement upon signing the act that began:

The American people are determined to protect themselves and their institutions against any organization in their midst which, purporting to be a political party within the normally accepted meaning, is actually a conspiracy dedicated to the violent overthrow of our entire form of government.”

Certainly the U.S. was concerned about plots to overthrow governments. In 1953, the CIA was instrumental in inciting the coup that overthrew the Prime Minister of Iran, Mohammad Mosaddegh. (The CIA acknowledged its role sixty years later.) Mossadegh had sought to reduce the semi-absolute role of the Shah granted by the Constitution of 1906, thus making Iran a full democracy, and to nationalize the Iranian oil industry. Not acceptable, as far as the U.S. was concerned. (It was this action that eventually culminated in the Iran Hostage Crisis of 1979.)

Former Iranian Prime Minister Mohammad Mossadegh steps off a plane in late August 1953. He was imprisoned for three years and put under house arrest until his death in 1967.

Former Iranian Prime Minister Mohammad Mossadegh steps off a plane in late August 1953. He was imprisoned for three years and put under house arrest until his death in 1967.

In June of 1954, a CIA covert operation deposed President Jacobo Árbenz Guzmán of Guatemala. The government was in fact the most democratic the country had ever had, but the president expropriated 234,000 acres of land owned by United Fruit, not offering “adequate” compensation to the company. Also not acceptable.

Jacobo Árbenz Guzmán went into exile after the coup and died in Mexico in 1971.

Jacobo Árbenz Guzmán went into exile after the coup and died in Mexico in 1971.

In other words, you could overthrow a democracy if it did not allow the U.S. to dominate the country, but in any event, it would be preferable if you let the U.S. take care of the matter.

You can read the text of The Communist Control Act here, and you can read President Eisenhower’s entire speech here.

“America Is Not For Black People”

This excellent article by Greg Howard is worth bruiting. Howard argues that what happened in Ferguson, Missouri “is about so many second-order issues—systemic racism, the militarization of police work, and how citizens can redress grievances, among other things…”

He further maintains that:

[A]rguing whether Brown was a good kid or not is functionally arguing over whether he specifically deserved to die, a way of acknowledging that some black men ought to be executed. … To even acknowledge this line of debate is to start a larger argument about the worth, the very personhood, of a black man in America. It’s to engage in a cost-benefit analysis, weigh probabilities, and gauge the precise odds that Brown’s life was worth nothing against the threat he posed to the life of the man who killed him. It’s to deny that there are structural reasons why Brown was shot dead while James Eagan Holmes—who on July 20, 2012, walked into a movie theater and fired rounds into an audience, killing 12 and wounding 70 more—was taken alive.”

You can read all of this thought-provoking article here.

America’s Top Corporate Tax Avoiders

Bernie Sanders, the longest serving independent member of Congress in American history, was elected to the U.S. Senate in 2006 after serving 16 years in the House of Representatives. His priorities include addressing the widening income gap in America (greater than at any time since the Great Depression), global warming (the existence and/or seriousness of which is denied by many members of Congress), universal health care, more equitable access to higher education, and improved support for veterans, inter alia.

Senator Bernie Sanders

Senator Bernie Sanders

Pursuant to his attempt to promote awareness of the problems with the income gap in the U.S., he has posted on his website a list of the top ten corporate tax avoiders, with facts and figures for each company.

The list includes General Electric, Boeing, Verizon, Bank of America, Citigroup, Pfizer, FedEx, Honeywell, Merck, and Corning.

It should be noted that Bank of America and Citigroup both benefitted from the fiscal bailouts during the financial crisis.

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About Bank of America, Senator Sanders reports:

    Bank of America received a $1.9 billion tax refund from the IRS in 2010, even though it made $4.4 billion in profits and received a bailout from the Federal Reserve and the Treasury Department of more than $1.3 trillion.

    In 2012, Bank of America operated more than 300 subsidiaries incorporated in offshore tax havens like the Cayman Islands, which has no corporate taxes.

    In 2012, Bank of America stashed $17.2 billion in offshore tax havens to avoid paying U.S. income taxes. Bank of America would owe an estimated $4.3 billion in federal income taxes if its use of offshore tax avoidance strategies were eliminated.

    Last year, Bank of America CEO Brian Moynihan made $13.1 million in total compensation, but he wants to raise the eligibility age for Medicare and Social Security to 70, and make significant cuts to Social Security as a member of the Business Roundtable.

A look at data relevant to Citigroup is similarly egregious:

    Citigroup made more than $4 billion in profits in 2010, but paid no federal income taxes. Citigroup received a $2.5 trillion bailout from the Federal Reserve and U.S. Treasury during the financial crisis.

    Citigroup has established 427 subsidiaries incorporated in offshore tax havens.

    In 2012, it stashed $42.6 billion in offshore tax havens to avoid paying U.S. income taxes. Citigroup would owe an estimated $11.5 billion in federal income taxes if its use of offshore tax avoidance strategies were eliminated.

    Michael Corbat, the CEO of Citigroup, made more than $17.6 million in total compensation last year.

You can read about the rest of the corporations he lists, here.

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