Social Justice

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law As I frequently do Sunday’s mornings in Toledo, picked up the Sunday Toledo Blade at the 7/11 (Comenatchi? (Hi!) Paloatchi (Hi back at you!) Gorum! Gorum! (Hot! Hot!) Rodje! (Sunny!) Tanda! (Cool in here!) being the usual…

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law (Update:  Other than Romney and Obama, I am avoiding using names of others here to respect their privacy.  I sent a copy of this post to some of my old HBS classmates and one has pointed…

Judicial vacancies restrict access to the federal courts, make litigation more expensive, and insidiously undermine the credibility of government. And a confirmation process that prevents qualified candidates of an elected president’s party from taking office sways the judiciary further to the right despite an election where voters said civil liberties, clean air, privacy, reproductive rights, social justice, and corporate accountability were important issues for our federal government to maintain and safeguard. The Alliance for Justice has created a fantastic resource to help educate voters and civic leaders about the state of judicial nominations. The Judicial Selection Project has a running count of vacancies in the district and circuit courts, along with profiles of all of the current nominees. It’s a great lesson in the advise & consent function of the Senate, or at least what can go wrong with it.

This morning NPR broadcast a report on the millionaire contributors to the various Super PACS which will only fuel the vitriol of this presidential election cycle. The list of contributors, those who have given a million or more and to which PAC, is available on line. Robert Smith, the NPR reporter, focused on Steven Lund, who had set up a phony corporation to hide the fact that he had given $1 million to Restore our Future, the Super PAC supporting Mitt Romney. I could have easily slipped into cynicism, believing that Citizens United (2010) was indeed the death knell of our democracy. I could have slipped deeper into despair thinking that the U.S. Supreme Court might overturn Citizens United, but not before the Super PACS had done their damage and gotten Obama out of office. At first I tried to elicit Stephen Colbert’s satire, his Super PAC, Making a Better Tomorrow, Tomorrow. But even Stephen’s wicked humor didn’t help. That’s all I could conjure was a scene of depressed and disappointed would-be voters who might just sit out this election. I was recognizing the symptoms: cynicism, passivity, and victimhood. These are self-government’s deadly enemies.

Posted by Lisa R. Pruitt The Occupy Wall Street movement has recently drawn national attention to economic inequality, and several new studies and a book just published also invite us to consider the acuteness of this inequality, as well as its causes and/or consequences.  These publications all highlight education, to one degree or another, as a key indicator of class and class mobility. The New York Times, NPR and the Los Angeles Times all ran features this week on Charles Murray's new book, Coming Apart:  The State of White America, 1960-2010.  Murray, labeled "a libertarian social scientist" by NPR (and worse things by other liberal pundits), is a controversial figure due in large part to his co-authorship of The Bell Curve.  In that 1994 book, Murray described  a "cognitive elite" who, he argued, get ahead in large part because of their superior IQs.  The controversy was understandable given his assertion that whites tend to have higher IQs than African Americans and some other minorities. I want to focus here, however, on some of the less controversial information featured in Coming Apart. By this, I mean to steer clear of the book's commentary on values and related suggestions for remedying the problem.  (I do, however, recommend Paul Krugman's op-ed and Nicholas Confessore's review which offer incisive observations regarding those aspects of the book).  Also, to be clear, I have yet to read the book and so rely here on characterizations from media reports.

  Written by Raquel Aldana, University of the Pacific, McGeorge School of Law Today was a historic day for Guatemala. A few hours ago, after a long day of heady hearings, a Guatemalan court opened a criminal case for genocide against Retired Military General Efraín Ríos Montt and ordered him…

I think the major problem with David Segal's November 19, 2011 article in The New York Times, like much of what has been written in the vein lately, is that the perspective is way too narrowly on the large law firms and the elite law schools. While many law schools follow the lead of the elites, many also do not, but most of the schools who do not follow the model as closely are the lower ranked schools. The large law firms could solve some of their problems by recruiting at law schools that actually do produce practice ready graduates. USNews is also a big factor and could change the ranking formula to account for practice ready curriculum and teaching excellence. I realize that there has been a trickle down effect in the legal job market so that all new graduates are likely to find themselves competing with more experienced lawyers for any openings, but that is likely a very short term effect, and many of the newly unemployed former associates from large firms will find that they actually did not get much useful transferable experience during the first couple of years at those firms.

The first rule of persuasion is to choose when to begin a story. All of this talk about deregulation of legal education and the practice of law as being good for everyone needs some historical context. (This talk sounds dangerously like it was manufactured by the U.S. Chamber of Commerce). I started that examination last week when I posted Deregulation is Just Another Word for … . Today I am moving deeper into history to help us understand how the legal profession became a profession. It’s not a pretty story, because it happened here in the United States: a radical, young, immature, racist, and intolerant place that has always had a hard time living up to its aspirations. Looking back to the time when the American Bar Association—ABA—first began to influence legal education, I am once again heavily relying on the scholarship of Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (University of North Carolina Press 1983).

By Lisa R. Pruitt Americans like to think they live in a society unstratified by class, a society of equal opportunity, where the American dream survives.  Joe Bageant, a journalist turned cultural critic, challenged these myths with inimitable intensity, compassion, and wit. Along the way, he reminded us of the links between the nation’s white working class and rural America.  Bageant died earlier this year at the age of 64. I first heard the name Joe Bageant in, of all places, Waarnambool, Australia.  It was November, 2010, and I was there to give a lecture at the Rural and Regional Law and Justice Conference.  After my talk, “Toward a Critical Legal Ruralism,” an Australian law professor approached me and recommended the book Deer Hunting with Jesus:  Dispatches from America's Class Wars by Joe Bageant.  I promptly purchased it.  Who could resist such a provocative title? I found that what the academic literature teaches about class wars, Bageant expressed in sharper, colloquial terms, and I discussed Bageant in my essay, The Geography of the Class Culture Wars. The scholarly literature tells us that progressive elites look down on the white working class and fail to see their struggles, including the struggle within the white working class by which the “settled,” disciplined working class differentiate themselves from the “hard living.” Bageant—consistent with his rural roots—expressed this distinction between the settled and the hard living as that between rednecks and white trash, explaining:

Amidst the discouraging stream of newspaper articles and blogs this summer demonizing law school deans, accusing university presidents of raiding law school tuition revenues, and suggesting a giant conspiracy to cover up the fact that there are very few $160,000 a year jobs for recent law school graduates, it appears that only the oblivious might consider enrolling in law school this fall. I beg to disagree. Now is the right time to encourage students from diverse racial, ethnic, and economic backgrounds to consider a legal education. We cannot allow the legal profession a detour from its mission to produce lawyers and leaders from all communities due to the economic downturn.

Crossposted from Jurist Forum - http://jurist.org/forum/2011/07/davis-duff-ware-debt-ceiling.php JURIST Contributing Editor Benjamin Davis of the University of Toledo College of Law, joined by JURIST Guest Columnists Michael Duff of the University of Wyoming College of Law, Craig Jackson of Texas Southern University Thurgood Marshall School of Law and Leland Ware of the University of Delaware, say that the recent proposal to allow the president to raise the debt ceiling without a congressional vote will increase uncertainty and violate the separation of powers...    In the most recent development in the debt ceiling debate between the two parties in Congress, Senate Minority Leader Mitch McConnell has floated a plan to get out of the impasse. While the details are fluid, the essence of his proposal appears to be: 1) Congress would authorize the president to raise the debt limit by as much as $2.5 trillion in three installments. The first, an increase of $700 billion, would come immediately. The next two, worth $900 billion each, would come this fall and some time next summer. 2) On each occasion, the president would be required to submit to Congress an explicit request for an increase, along with a menu of proposed spending cuts equal to the requested increase. The submission of the president's first request would automatically raise the debt limit by $100 billion to give the Treasury Department breathing room while Congress considers the request. 3) Lawmakers would then have 15 days to pass a resolution of disapproval, giving them an opportunity to go on record against raising the debt ceiling. The president could veto the resolution, and the debt limit would then rise, provided the veto could not be overridden. McConnell's strategy makes no provision for the required spending cut proposal to be enacted. Aides said lawmakers could pick and choose from the president's list when they put together appropriations bills in a separate process. While McConnell's tactical inventiveness is clever, it is an open question as to whether it is in line with the separation of powers. The first step, authorizing the president to raise the debt limit, appears to be a departure from the past in which Congress itself raised the debt limit. The second step has the debt limit automatically rise by $100 billion by the submission of a requested increase, again without congressional action. The third step foresees a vote within 15 days of disapproval. In the absence of such a vote of disapproval within the 15 days, it is unclear whether the debt ceiling is raised or not or by what amount. If there is such a vote of disapproval, the president can veto it. If two-thirds of both houses of Congress fail to vote to override the veto, the debt limit rises by $900 billion without congressional action to alter the legislation setting the debt ceiling. What is clear under all three steps is that Congress itself is not raising the debt ceiling limit as it has traditionally done, but instead the president becomes the fulcrum for the debt ceiling increases. Coupled with these increases will be a growing uncertainty as to whether the debt ceiling has in fact been properly increased. Article I, Section 1 of the Constitution places the legislative power with Congress. Article I, Section 8 gives Congress the power to tax and spend and to borrow money on the credit of the United States. At the heart of this legislative power is the power to budget and authorize debt. While attacks on legislation based on the non-delegation doctrine do not generally succeed, one does wonder whether the compromise amounts to a congressional abdication to the president or a failure to give legislative definition of the scope of the president's power. While this point would not be dispositive, is there really an "intelligible principle" guiding the shift of authority to the president for raising the debt limit in this convoluted manner? The evidence so far makes it clear that this approach is being considered solely based on political calculations. Moreover, comparing this proposed structure to a simple congressional vote, one sees a shift of power to the president that may harken a further imbalance in the separation of powers. The first three steps call for the president to propose various spending decreases to Congress at the same time that the president seeks the debt ceiling increases. The spending cut proposals are without any particular effect as the subsequent mandated congressional action is with regard to the debt ceiling and not the spending cuts. Would these proposed spending cuts amount to a backdoor kind of line item veto? On the one hand, the budgeting power remains with Congress, on the other, the presidential initiative creates an ad hoc budgeting and authorization process outside of standard budgetary procedures. What of spending authorized by Congress but targeted on the list of spending cuts submitted by the president? One concern is whether these listed cuts have the effect of suspending or calling the appropriations into question, another shift of power to the president over appropriations that should have the effect of law.

By Lisa R. Pruitt The Chronicle of Higher Education this week released data summarizing the tertiary education (or lack thereof) of state legislators across the country.  An interactive map is available here, permitting you to see the percentage of lawmakers in each state who attended college, completed college, and/or completed a graduate or professional degree.  The map also tracks whether lawmakers attended public schools or private ones, and it features some data about whether they went to college within their state or outside it. The big headline is that about 75% of all state lawmakers have four-year college degrees, compared to 94% of those serving in the U.S. Congress.  The percentage of state legislators with such a degree varies considerably by state, however, from a high of 89.9% in California to a low of 53.4% in New Hampshire (where the Chronicle acknowledges it had greatest difficulty verifying educational attainment of the numerous legislators, who serve part time for just $100/year!).  South Carolina leads states in percentage of lawmakers who attended some college but did not receive degrees (97.7%), while Arkansas makes the poorest showing on this metric, with only 67% of its legislators having completed any college at all.  Stated another way, that means that a full third of Arkansas’s lawmakers have only a high school diploma.

By Lisa R. Pruitt Two recent news reports from very different parts of the world shared this theme: Affluence can have its drawbacks. The first story was Michael Wines, “Execution in a Killing that Fanned Class Rancor,” which reports the execution of the son of an affluent Chinese businessman and military official. The son, Yoa Jiaxin, stabbed to death a “peasant” woman last fall. Jiaxin had struck the woman, who was cycling, with his vehicle, but she suffered only minor injuries. When Jiaxin realized that she was memorizing his license plate number, however, he attacked her with a knife. Wines provides some class context for what happened next: "The crime had fanned deep public resentment against the “fu er dai,” the “rich second generation” of privileged families who are widely believed to commit misdeeds with impunity because of their wealth or connections." Jiaxin later said that he “feared the woman, a poor peasant, would ‘be hard to deal with’ should she seek compensation for her injuries.”

By Lisa R. Pruitt I responded last month to Martha McCluskey’s ClassCrits post, “Class as a Category of Vulnerability and Inequality.” In that initial response, I asserted that progressives need not choose between advocating mobility (the upward variety!) and advocating mobilization (collective action, labor rights) when it comes to class. I called the tension between mobilization and advocating class mobility a false dichotomy. This post takes up another issue that arose from the initial conversation: is class material or is it cultural? More precisely, will attending too much to the cultural aspects of class cause us to lose sight of its material aspects and consequences? Of course, class has both material and cultural components—no doubt one of the reasons we increasingly refer to it as “socioeconomic status” or “SES.” I believe we must take both seriously in our efforts to empower the working class and poor. As with my prior post, I take the white working class as my starting point for several reasons. One is that I don’t hear socially conscious progressives pushing for a bifurcation that separates the material from the cultural with respect to minority groups. The other is that focusing on working class and poor whites permits us to see class more clearly. If we are looking at the group which enjoys the greatest racial privilege, we will not be tempted to collapse the class problem into the racism problem. We thus have a distinct opportunity to see just how powerful class disadvantage is. This tack it is not intended to discount the ways in which racial disadvantage exacerbates class disadvantage. Thinking about class as culture implicates identity, and some have challenged class as a basis for identity, especially among “lower classes.” John Guillory wrote in 1993:

This semester marks the end of Professor Margaret Montoya’s law teaching career at UNM School of Law. Professor Montoya will leave the Law School to serve full-time as Senior Advisor to Chancellor Paul Roth at Health Sciences for one more year prior to her retirement. This is my final salute to an inspiration, a valued colleague, a fierce voice, an innovative teacher, a renowned and prolific scholar and a friend. Her remarkable achievements are truly tremendous and she leaves both a legacy and a huge impression in our legal landscape that will take an effort to fill.

By Lisa R. Pruitt In a prior post about Thomas Espenshade and Alexandria Walton Radford’s book, No Longer Separate, Not Yet Equal:  Race and Class in Elite College Admission and Campus Life, I mentioned Ross Douthat’s assertion that “the downscale, the rural and the working-class” whites were most disadvantaged in elite college admissions.  In this second installment about the book and Douthat’s 2010 column comments on it, I want to discuss the rural issue, which Douthat characterizes as bias against rural or “Red America.”  Douthat wrote: “[W]hile most extracurricular activities increase your odds of admission to an elite school, holding a leadership role or winning awards in organizations like high school R.O.T.C., 4-H clubs and Future Farmers of America actually works against your chances.” In his response to Douthat’s initial column, Espenshade clarified that rural-oriented extracurriculars are not the only ones whose value is discounted by admission offices.   Espenshade wrote: “These extracurriculars might include 4-H clubs or Future Farmers of America, as Douthat mentions, but they could also include junior ROTC, co-op work programs, and many other types of career-oriented endeavors.  Participating in these activities does not necessarily mean that applicants come from rural backgrounds.  The weak negative association with admission chances could just as well suggest that these students are somewhat ambivalent about their academic futures.” As a related matter, Espenshade clarifies that applicants from “Red” states have better odds of getting into an elite university than those from more populous states, many of which are “Blue.”

By Lisa R. Pruitt Parts I and II of this series appeared in August, 2010 here and here. Ever since Ross Douthat discussed No Longer Separate, Not Yet Equal: Race and Class in Elite College Admission and Campus Life in a July 2010 column, I’ve been fretting about some of the book’s findings.  This 2009 book discusses the authors' exhaustive study of college admissions, with particular attention to elite colleges.  Among the conclusions of Princeton sociologists Thomas Espenshade and Alexandria Walton Radford is that whites and Asians needed higher grades and SAT scores to gain admission, while blacks and Hispanics were favored in the admissions process.  Stated thusly, I am not troubled by the finding.  But then Douthat makes a related point, about the consequences of this fact on “lower-class” whites: "For minority applicants, the lower a family’s socioeconomic position, the more likely the student was to be admitted. For whites, though, it was the reverse. An upper-middle-class white applicant was three times more likely to be admitted than a lower-class white with similar qualifications." Douthat goes on to explain that this failure to admit more working- and other “lower-class” whites may be “a money-saving tactic.”  Specifically, “Espenshade and Radford suggest that these institutions, conscious of their mandate to be multiethnic, may reserve their financial aid dollars ‘for students who will help them look good on their numbers of minority students,’ leaving little room to admit financially strapped whites.”

By Lisa R. Pruitt Martha McCluskey wrote a couple of weeks ago on the ClassCrits Blog about some questions regarding class that arose at Martha Fineman’s recent workshop, Masking and Manipulating Vulnerabilities, at Emory Law School.  To summarize, McCluskey asked whether it is “problematic to analyze class as a category of inequality without directly engaging questions of labor rights?” The genesis of that conversation at Emory was my speculation regarding the reasons for resistance to class analysis regarding whites and, by extension, resistance to the vulnerability paradigm.  Like my other recent work on class, my comments at Emory  focused on class mobility and did not engage issues of collective mobilization.  I thus believe the clear answer to McCluskey’s question is “no.”  Class mobility (think class ascension, although the sad trend these days is downward mobility) and class mobilization (as through unionizing and labor rights) seem to me different paths to empowerment of the working class and poor.  I see these as able to reside comfortably, side-by-side, on parallel tracks.  Indeed, now that McCluskey (echoing others at the Emory workshop) has voiced this issue, I find myself surprised that we do not see more law professors writing about class (im)mobility in a way that separates the issue from racism. That is, I am concerned that socially conscious progressives see challenges to upward mobility as stemming primarily, even solely, from bias against minorities.  If this is the case, we are failing to see that whites, too, are increasingly victims of the inequality gap and its attendant barriers to upward class migration.

by Lisa R. Pruitt Wealth and income inequality have been getting a lot of attention in recent months--at least in the New York Times. Op-Ed columnist Bob Herbert has been especially persistent about keeping the topic on readers' radar screens; read some of his columns here, here, here, and here. Paul Krugman, Frank Rich, and Robert Frank have had a say, too. Wealth inequality was also the subject of a "Room for Debate" feature a few weeks ago. But geographic analysis of inequality has been little examined in the mainstream media until The Economist Magazine ran a couple of stories about uneven development and spatial inequality in the March 10, 2011 issue. The first "Internal affairs: The gap between rich and poor regions widened because of the recession," analyzes various nations' spatial inequality as measured by income and GDP. This analysis shows that Britain is the nation with the widest geography-based income gap: the per capita GDP is nine times greater in central London than it is in some Welsh regions. The smallest regional spreads, on the other hand, were in Italy and Germany, where "incomes in their most affluent areas are [nevertheless] almost three times those of the poorest." The United States falls at the British end of the spectrum, coming in second for inequality across regions among the nations studied. The District of Columbia, for example, is five times as rich as Mississippi. Further, the situation has worsened in the past few years.

By Olympia Duhart In my legal research and writing class, I spend a great deal of time trying to teach my 1Ls to steer clear of ambiguity in their communication.  At the core, I offer them simple and familiar advice: Say what you mean, and mean what you say. Seems like a lesson Ohio Gov. John Kasich needs to learn. Last week, Ohio State Sen. Nina Turner said the Republican governor made an ambiguous – potentially explosive – comment to her when she offered to help assemble a racially diverse cabinet. The governor’s response to her offer: “I don’t need your people.” For Turner, it was unclear whether Kasich’s comments were dismissive of her constituents (she is a Democrat) or her ethnic group (she is black).  Turner said she was “kind of perplexed” by the governor’s comments. She’s not the only one. The Ohio Legislative Black Caucus has criticized Republicans in the Kasich administration and the Ohio legislature for failing to place people of color in key positions. According to POLITICO, Kasich spokesman Rob Nichols confirmed that the governor did tell Turner he didn’t need her “people.” However, the spokesman said Kasich’s comments were intended to be a rejection of partisan Democrat support.  “What he meant was, ‘Your people are Democrats, we don’t need them on our cabinet,’” Nichols insisted. “He said it referring to partisan Democrats who don’t agree with reducing taxes and reducing spending.” Even if Kasich intended to reject Democratic involvement, such isolationism is disheartening from a governor who represents both Republican and Democrat constituents. With the push to relax the ranting as of late and a call from both sides to build consensus, one would hope a state leader would not be so firmly committed to excluding different views and voices. Then there is that other reading of Kasich’s ambiguous comments.