Wednesday, March 25, 2015

Chibli Mallat, Philosophy of Nonviolence

This book recently arrived in the Jurisdynamics Network's mailbox —

Chibli Mallat, Philosophy of Nonviolence: Revolution, Constitutionalism, and Justice Beyond the Middle East, available at The following description is adapted from Oxford University Press's cover notes to the book:

In the so-called "Arab Spring" of 2011, people throughout the Middle East peacefully protested long entrenched dictatorships. In a matter of weeks, nonviolent marches deposed the dictators of Tunisia, Egypt, and Yemen. Philosophy of Nonviolence ponders whether the Arab Spring represented a fundamental break in world history. This break, argues Chibli Mallot, is animated by nonviolence as the new spirit of the philosophy of history. In this evaluation of an ongoing political movement, Professor Mallat engages a wide range of abstract and philosophical arguments, while substantiating those arguments in the historical context of the ongoing Middle East revolution.

Thursday, March 19, 2015

Toward a Developmental Finance State

Robert C. Hockett and Saule T. Omarova have posted a draft of their important—hence highly recommended—new article, “Public Actors in Private Markets: Toward a Developmental Finance State,” at SSRN, available here. The abstract:

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of fueling development; and (3) that the state, as the most potent financial actor, both must and often does pursue its developmental goals by acting endogenously – i.e., as a direct participant in private financial markets. In addition to articulating and elaborating the concept of the developmental finance state, this Article identifies and analyzes the principal modalities through which the modern American developmental finance state operates today. Finally, the Article proposes three broad strategic extensions of the existing modalities, with a view to enabling the emergence of a more ambitiously proactive and effective developmental finance state – and thus rediscovering a truly public-minded finance.

As Hockett and Omarova note,

“our polity never has been strictly ‘command-and-control’ or ‘hands-off’ in relation to our economy. Rather, we have always sought means of proactively fostering and furthering economic development and growth, and have done so through government instrumentalities that act in markets as much as they act on them. Our government is more than merely a market overseer and regulator – it is also a direct market participant, acting not only to correct market failures or to provide vital public goods but also to create, amplify, and guide private markets in ways that enhance these markets’ potential to serve important long-term public interests.”

Intriguingly, they characterize the rhetorical strategy of the argument as one that

“identifies, analyzes, and builds upon the distinctly American mode of mixing polity and economy, in hopes of recovering a policy approach that the nation once had and could use again now, after a major financial crisis. The tradition we seek to recover traces its roots directly to ideas originally formulated by the country’s first Treasury Secretary, Alexander Hamilton. We refer to that tradition under the conceptual heading of the ‘developmental finance state.’”

However refreshing the invocation of Hamilton, I’m not sure how significant or even true it is to view this as a “distinctly American mode of mixing polity and economy,” for in the comparative terms of welfare capitalism or capitalist democracy (keeping in mind that such regimes ‘represent different ways of organizing not only the transfer sector, represented by social welfare policy, but also the productive sector of the capitalist economy’), this seems merely to bring the conventional model of the “liberal welfare regime,” exemplified by the United States, closer to a corporatist or even social-democratic model, an alternative characterization that may not prove as rhetorically pliable to a fair- or open-minded assessment of their proposal. In any case, I believe a move in this direction would portend progress on several fronts, not the least of which would involve movement toward satisfying moral and political values that have been used as criteria for assessing the “real worlds of welfare capitalism,” namely, (1) efficiency (of various economic kinds), (2) reduction of poverty, (3) promotion of equality, (4) promotion of social integration and avoidance of social exclusion, (5) promotion of social stability, and (6) promotion of individual autonomy. On this, please see Robert E. Goodin, et al., eds. The Real Worlds of Welfare Capitalism (Cambridge University Press, 1999).

Here is a clear and compelling conceptual outline and working definition of this “developmental finance state:”

“Three propositions form the basis of our argument. First of all, we assert the utmost significance of pursuing socio-economic development as a continuous national project that does not end once a country is sufficiently industrialized and modernized to be considered a ‘developed’ economy. Development is not a particular end-of-history state; it is an inherently dynamic phenomenon. Development is a conscious pursuit of qualitative (not merely quantitative) growth and adaptation to new environments; it is an evolutionary process of national self-definition and reinvention. In today’s world, any ‘developed’ nation that does not strive to develop risks losing its global competitive edge. In this sense, the United States is a developing country, whether or not Americans realize or admit it. We seek to re-introduce this critically important normative concept into the public discourse.

Secondly, we view this conscious pursuit of national development as a fundamentally public-private enterprise. As the ultimate public, collective actor, the federal government is well-positioned to formulate a national developmental strategy. But its successful implementation would require the government to utilize, deliberately and systematically, its ability to participate directly in private market transactions as an endogenous, rather than merely exogenous, actor. Via this explicitly participatory market-actor modality, the government can lead the market from within – thus becoming an integral part of the private market, altering some of the market’s potentially undesirable internal dynamics, and empowering both the market and the nation.

Finally, we deliberately focus on the use of financial techniques and financial instruments as primary methods of the government’s pursuit of developmental goals in its role as a market actor. Finance represents both the lifeblood of the economy and ‘the nerves of the state’ – it is the principal link connecting the state and the market. Finance is a universal productive input; it can be fairly easily moved and re-deployed for a multitude of purposes.

Moreover, the increasing financialization of the American economy in recent decades makes finance a particularly potent lever of economic and political power. Therefore, we view financial markets as the strategic arena in which America’s future developmental trajectory will be decided. These three elements, inspired by and building upon Hamiltonian ideas, define the contours of what we tentatively call here a developmental finance state model. A ‘developmental finance state’ can be defined as a state that pursues specific developmental goals through direct participation in private financial markets as an endogenous market actor.”

I hope this proves sufficient enticement for you to read the article. 

Tuesday, March 17, 2015

California Supreme Court grants posthumous law license to Hong Yen Chang


“A descendant of the wife of Hong Yen Chang was researching a book about an ancestor when she learned that her great-grand-uncle Chang had received a law degree but never practiced in California. She contacted another relative, who spoke to a historian at the State Bar of California. The California Supreme Court had denied Chang a law license because he was Chinese.

‘The family was troubled that it happened, but we didn't ever imagine there was anything we could do about it,’ said Rachelle Chong, a prominent lawyer and Chang’s great-grand-niece. Twenty five years later, she received a note from a UC Davis law professor. His students were going to try to overturn the decision that denied Chang admission to the California bar.

That reversal finally came Monday, when the California Supreme Court closed a chapter in the state’s history of anti-Chinese laws and decided unanimously to give Chang a posthumous law license. In a nine-page ruling, the state’s highest court repudiated its 1890 decision denying Chang a license because ‘persons of the Mongolian race’ were not entitled to citizenship. ‘More than a century later, the legal and policy underpinnings of our 1890 decision have been discredited,’ the court said in Monday’s unsigned decision. ‘Even if we cannot undo history,’ the ruling said,’ we can acknowledge it and, in so doing, accord a full measure of recognition to Chang’s pathbreaking efforts to become the first lawyer of Chinese descent in the United States.’

The project to award Chang a license posthumously began in 2011 with UC Davis law professor Gabriel Chin, who specializes in the law and race, immigration and criminal law. The 1890 California precedent has long been ‘notorious among Asian American legal scholars,’ Chin said. ‘It is a particularly bitter and shocking decision.’

Chin asked his students try to find a way to address that ignominious ruling. They researched the legal issues and the history and filed a petition with the state bar, which oversees lawyer licensing. The bar was sympathetic but did not have the authority to admit Chang posthumously.

The students bided their time.

When the California Supreme Court decided last year to give a law license to a Mexican immigrant who had no green card, the students’ confidence grew. They also were encouraged by the makeup of the top court. Three of the justices, including the chief justice, are Asian American. One is Latino, another is African American and two are white women. ‘I believed we had a really strong case,’ said Steven Vong, co-president of UC Davis Asian Pacific American Law Students Assn., which brought the case.

The law firm of Munger, Tolles & Olson offered to represent the students for free. Jeffrey Bleich and two other San Francisco-based lawyers with the firm filed a motion with the court late last year. As a former president of the state bar, Bleich said he was particularly offended by the treatment of Chang. ‘I thought it was important to start addressing a stain on California’s judicial history and make amends to the Chinese people,’ he said.

The 1890 California ruling had denied Chang a law license under the federal Chinese Exclusion Act, which Congress passed at California’s urging and which the U.S. Supreme Court upheld. It barred citizenship for the ‘Mongolian race’ and imposed a 10-year ban on Chinese immigration.
Because citizenship or eligibility for citizenship was required for a California law license, Chang had to be excluded, the court said in its infamous ruling. ‘Courts are expressly forbidden to issue certificates of naturalization to any native of China,’ the court ruled.” [….]

The entire article from the Los Angeles Times is here. 

In an earlier post on this case from last year I discussed posthumous justice for apartheid-era lawyers in South Africa:

[....] Following the 1994 elections in South Africa, a “Restoration of Enrolment of Certain Legal Practitioners Bill” had been in the works, aimed at figures like Bram Fischer, Shun Chetty and Lewis Baker who were disbarred or struck off the roll of attorneys for various reasons that arose out of their activist political opposition to apartheid. On October 28, 2002, the Reinstatement of  Enrolment of Certain Deceased Legal Practitioners Act was passed into law by the Parliament and later signed by the President. The Bill reads as follows:
*   *   * To provide for the reinstatement of the enrolment of certain deceased legal practitioners who were struck off the roll of advocates or attorneys as a result of their opposition to the previous political dispensation of apartheid or their assistance to persons who were opposed to the said apartheid dispensation; and to provide for matters connected therewith. [....]

Monday, March 16, 2015

The State & Capitalist Science and Technology

“The state, largely in the form of the federal government, has had an important background role in providing the environment in which the biotechnology industry could be created. Numerous state interventions made the formation of the biotechnology industry possible. Federal government funding of NIH [National Institutes of Health] and NSF [National Science Foundation] research built the basic scientific knowledge from which commercial biotechnology developed. The entire history of molecular biology is that of federal funding of ‘basic’ research that was meant to create the technical base necessary to understand and cure diseases.” Martin Kenney, Bio-technology: The University-Industrial Complex (Yale University Press, 1986): 241.
“It’s no surprise that Apple’s tremendously successful line of products—iPads, iPhones, and iPods—incorporate twelve key innovations. All twelve (central processing units, dynamic random-access memory, hard-drive disks, liquid-crystal displays, batteries, digital single processing, the Internet, the HTTP and HTML languages, cellular networks, GPS system, and voice-user AI programs) were developed by publicly funded research and development projects.” – From Tony Smith’s article, “Red Innovation,” in the latest issue of Jacobin (Spring 2015). Smith, a professor of philosophy at Iowa State University, is the author of, among other books, Technology and Capital in the Age of Lean Production: A Marxian Critique of the “New Economy” (SUNY Press, 2000).

Locke (John, not Alain LeRoy) & Slavery

“Two facts are clear: (1) There is nothing in [seventeenth-century English philosopher John] Locke’s theory that lends an iota of legitimacy to the contemporary institution of slavery in the Americas; and (2) African slavery in the Americas was a reality and Locke himself was implicated with it… [i.e., he ‘invested money personally both in plantation enterprises and in an enterprise (the Royal African Company) that had a monopoly in the slave trade’].”—Waldron, Jeremy. God, Locke, and Equality: Christian Foundations of Locke’s Political Thought (Cambridge University Press, 2002): 206.

Tuesday, March 10, 2015

Unreasonable if not Irrational Restrictions on Speech during Incarceration

 Pentonville Prison, London (1965)
“Some of the greatest works of literature and social commentary—everything from Don Quixote, to O. Henry’s stories, to Martin Luther King Jr’s, Letter from a Birmingham Jail—were written in whole or in part while their authors were incarcerated. In many prisons and jails today, however, speech is burdened by regulations that make little sense. Examples include the following:

  • A federal prison employee prevented a prisoner in Colorado from receiving books by President Obama, citing national security concerns.
  • A Wisconsin prison banned all materials related to the fantasy role play game Dungeons & Dragons, concerned that the game would promote gang activity.
  • A jail in South Carolina prohibited all publications with staples on the ground that staples could be used in makeshift tattoo guns. At the same time, the jail allowed prisoners to purchase legal pads that contained staples from the jail’s commissary.
  • Jail employees in Virginia used scissors or a hobby knife to cut out biblical passages from letters a mother wrote to her incarcerated son. The letters given to the son had holes where the biblical passages had been.
  • In Wisconsin, a prison forbade a prisoner from ordering the Physician’s Desk Reference.
  • Some jails ban all newspaper and magazines. Others prohibit letters sent to prisoners, and allow only postcards.
  • A purge of books in religious libraries maintained by federal prisons resulted in works by Maimonides, the medieval Jewish philosopher, being pulled from the shelves.
  • A prison allowed magazines such as Playboy and Maxim, but prohibited works by John Updike as salacious.”

I can’t speak with authority to the proposed solutions, but for the rest of this important article, please see David M. Shapiro, “Lenient in Theory, Dumb in Fact: Prison, Speech, and Scrutiny” (February 20, 2015). Northwestern Public Law Research Paper No. 15-08.

See too: (1) In a different vein, see this guest post from several years ago at The Faculty Lounge: “The Bard of Avon in Prison.” (2) The Atlantic: “Why Shakespeare Belongs In Prison. (3) From Louisville, Kentucky, “Shakespeare Behind Bars.” (4) My bibliography on “punishment and prison.” 

Tuesday, March 03, 2015

Yes, indeed: Bush White House and DOJ Officials Conspired to Approve Torture

An alleged CIA prison near Kabul, Afghanistan: Trevor Paglen via Wikimedia Commons.

From David Cole at Just Security
[….] The overall picture that the documents paint is not of a rogue agency, but of a rogue administration. Yes, the CIA affirmatively proposed to use patently illegal tactics — waterboarding, sleep deprivation, physical assault, and painful stress positions. But at every turn, senior officials and lawyers in the White House and the Department of Justice reassured the agency that it could — and should — go forward. The documents reveal an agency that is extremely sensitive to whether the program is legally authorized and approved by higher-ups — no doubt because it understood that what it was doing was at a minimum controversial, and very possibly illegal. The documents show that the CIA repeatedly raised questions along these lines, and even suspended the program when the OLC was temporarily unwilling to say, without further review, whether the techniques would ‘shock the conscience’ in violation of the Fifth Amendment. But at every point where the White House and the DOJ could have and should have said no to tactics that were patently illegal, they said yes.

From the start, the administration crafted its policies to give the CIA leeway. In February 2002, for example, even before the CIA detainee and interrogation program had formally begun, President Bush issued a memo declaring that while the Geneva Conventions do not apply to al Qaeda and Taliban detainees, US Armed Forces would nonetheless as a matter of policy treat detainees humanely. At the time, critics, myself included, focused on Bush’s caveat that ‘military necessity’ might justify inhumane treatment. But one of the documents reveals that the administration also intentionally drafted the memo to exclude the CIA. (To his credit, Marty Lederman may have been the first to identify the significance of the focus on the Armed Forces, but that was not until many years later in January 2005.) A declassified February 2003 memo drafted by CIA General Counsel Scott Muller reports that Justice Department lawyer John Yoo told Muller in January 2003 ‘that the language of the [February 2002] memorandum had been deliberately limited to be binding only on ‘the Armed Forces’ which did not include the CIA.’ Yoo also confirmed that in drafting his memo authorizing the CIA program, he had considered the intent and effect of the February 2002 memo, and concluded that it posed no bar.

The declassified documents also reveal that Condoleezza Rice, National Security Adviser, and John Bellinger, her lawyer, both of whom many years later sought to restrict use of the CIA’s techniques, were personally and intimately involved in the initial approval of the tactics. In April 2002, shortly after Abu Zubaydah was captured, Bellinger arranged the first meeting on the subject of enhanced interrogation, and told OLC that the State Department should be kept out of the loop. His boss, Rice, gave policy approval to the tactics in July 2002, pending legal sign-off by the Department of Justice, which came one week later, in the now infamous August 1, 2002 memo drafted by Yoo and Bybee. The documents do not reveal what Rice was told by Bellinger, her counsel, about the legality of approving waterboarding, extended sleep deprivation, and the like, but there is no sign that he told her the tactics were illegal. If he had done so, it would have been very difficult for her to approve the tactics in the face of such advice.

In December 2002, Bellinger twice confirmed to CIA General Counsel Muller that ‘use of the type of techniques authorized by the Attorney General had been extensively discussed and was consistent with the President’s …. February Memo.’ On January 13, 2003, in a meeting with Muller, White House Counsel Alberto Gonzales, Counsel to the Vice-President David Addington, Yoo, and Defense Department General Counsel Jim Haynes, Gonzales and Addington also reaffirmed that the February 2002 memo about humane treatment did not apply to the CIA. And three days later, in a meeting with Rice, Secretary of Defense Dnnald Rumsfeld, Secretary of State Colin Powell, Vice-President Dick Cheney, and Haynes, Muller yet again raised the possible inconsistency between ‘what the CIA was authorized to do and what at least some in the international community might expect in light of the Administration’s public statements about ‘humane treatment’ of detainees.’ According to Muller, ‘Everyone in the room evinced understanding of the issue. CIA’s past and ongoing use of enhanced techniques was reaffirmed…. Rice clearly distinguished between the issues to be addressed by the military and CIA.’

In July 2003, after Jim Haynes wrote a letter to Sen. Patrick Leahy (D-Vt.) contending that US policy “is to treat all detainees and conduct all interrogations, wherever they may occur, in a manner consistent with [the Constitution],” the CIA again raised concerns about whether the administration’s public commitment to humane treatment could be squared with its program – understandably, as its tactics were the very opposite of humane, and would plainly be unconstitutional if applied to anyone protected by the Constitution. Another declassified document shows that CIA Director George Tenet sent a memo to Rice requesting express reaffirmation of the CIA’s program.  Later that month, Tenet met with, among others Attorney General Ashcroft, DOJ lawyer Patrick Philbin, Rice, Gonzales, Bellinger, and Cheney to review the program. Ashcroft, backed by a full explication by Philbin, “forcefully reiterated the view of the Department of Justice that the techniques being employed by the CIA were and remain lawful and do not violate the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment.” When Ashcroft was told that Khaled Sheikh Mohammed had been waterboarded 119 times, Ashcroft replied “that he was fully aware of the facts and that CIA was ‘well within’ the scope of the [OLC] opinion.” Cheney, Rice, and Ashcroft all confirmed that the CIA was “executing Administration policy.”

After the Abu Ghraib photos were released in April 2004, the CIA again sought reaffirmation of its program. In fact, in May 2004, Tenet suspended the interrogation program, and expressly requested the NSC Principals and the Attorney General to approve of the CIA’s tactics yet again. The next month, the Washington Post published the August 2002 OLC memo, the first written approval of the torture tactics, which until then had remained a secret. As soon as that memo became public, then-OLC head Jack Goldsmith withdrew it; what everyone went along with in private was not sustainable once exposed to the light of day. Yet at a meeting in July 2004 with Rice, Ashcroft, Gonzales, Bellinger, and Deputy Attorney General James Comey, Rice said that the CIA’s techniques were in her view humane, and Ashcroft reaffirmed their legality (apart from waterboarding, which the DOJ was then reevaluating). The next month, Daniel Levin, the new head of the OLC, authorized the use of the waterboard for a particular detainee (although the CIA did not ultimately use the waterboard in that instance).

In December 2004, as has been previously reported, Levin issued a new memo on interrogation techniques, to replace the withdrawn August 1, 2002 memo. Its rhetoric was designed to sound more reasonable than the initial memo, but it included a critical footnote, stating that the OLC did not believe any of its conclusions regarding previously approved interrogation techniques would be different under the new standards. In other words, nothing material had changed. The OLC was still saying yes. About six months later, still another OLC head, Stephen Bradbury, wrote two memos opining that none of the CIA’s techniques were cruel, inhuman, or degrading, nor would they violate the Constitution if employed against detainees in the United States.

In short, the declassified documents reveal that the CIA was very nervous about the legal authority for its interrogation program – even after DOJ and White House officials had repeatedly given the program their blessings. It is almost as if the CIA had a guilty conscience; it knew what it was doing was wrong, so it had to be repeatedly reassured that it was okay. Above all, it seems, the agency wanted to make sure it had legal cover.

But the documents also underscore an equally important point, one not sufficiently emphasized by the SSCI Report and the coverage of it: the CIA was only one part of this conspiracy to commit war crimes. The scheme had the participation and express or tacit assent of many others, from President Bush and Vice-President Cheney and the NSC Principals on down to Justice Department lawyers John Yoo, Jay Bybee, Patrick Philbin, Daniel Levin, Stephen Bradbury, DOD General Counsel Jim Haynes, Counsel to the Vice-President David Addington, and Counsel to the National Security Adviser John Bellinger. Not one of these people said no. Had any one of them done so, the program might well have been stopped in its tracks. Yet most of them have gone on to lucrative, prestigious, and/or powerful positions in private practice, the academy, or other government positions. Where is the accountability for their part in the CIA’s grievous wrong. 

*   *   *

And here’s a link to my bibliography, Torture: Moral, Legal, and Political Dimensions. 

Sunday, March 01, 2015

Monroe H. Freedman (April 10, 1928 – February 26, 2015)

I’m saddened by the death of Monroe Freedman. 

“For 42 years as a professor and dean at Hofstra Law, Monroe instilled in thousands of students the responsibility of lawyers to zealously represent their clients and also to stand for social justice.

Nationally he was known as the father of modern legal ethics for his successful effort to introduce the field into the mainstream of the legal academy. For this, he received the American Bar Association’s highest award for professionalism, in recognition of ‘a lifetime of original and influential scholarship in the field of lawyers’ ethics,’ and his peers have called him ‘the conscience of our profession.’”

From today’s obituary notice in the The Washington Post:  

“Monroe H. Freedman, scholar of legal ethics and civil liberties, dies at 86” 

[….] Mr. Freedman became a nationally renowned expert on civil liberties while serving as a law professor at George Washington University from 1958 to 1973 and later at Hofstra University in Hempstead, N.Y.

He became even better known for his contributions to the emerging field of ethics, in which he addressed the sometimes conflicting responsibilities of a lawyer toward clients and toward the court. ‘He was a towering figure in the legal academy and especially in legal ethics,’ Georgetown University law professor Abbe Smith, who taught alongside Mr. Freedman and published books with him, said in an interview. ‘He was universally regarded as the founder of modern legal ethics as an academic field.’

Mr. Freedman wrote textbooks on the subject, and his landmark 1966 article, “The Three Hardest Questions,” remains a mainstay of the study of legal ethics to this day. The article, which appeared in the Michigan Law Review, outlined three central obligations that every defense lawyer is bound to uphold: understanding all the facts of a case; preserving the confidentiality of a client; and being candid and forthcoming to the court.

There are times, however, when these legal principles can be in conflict, producing what Mr. Freedman called a ‘trilemma.’ The trust between a lawyer and client, he argued, is a fundamental cornerstone of the legal system and is essential to discovering the truth. But what is the lawyer’s responsibility if a client says he will not testify honestly on the witness stand?

Which legal obligation is more important — confidentiality or candor? Mr. Freedman suggested that a defense lawyer’s primary duty is to be his client’s best advocate. The judicial system, after all, rests on the presumption that defendants are innocent unless the prosecution can prove otherwise. A defense attorney’s first responsibility, in other words, is to maintain the confidence of his client’s private discussions, not to declare the client guilty.

Lawyers have wrestled with such thorny questions for centuries, Smith said, but until Mr. Freedman’s groundbreaking study, ‘no one sat down and thought about these things and wrote them out.’ [….]

While teaching at GWU’s law school in the early 1960s, Mr. Freedman chaired the American Civil Liberties Union of the Nation’s Capital, advised civil rights groups and was an early champion of women’s rights. He was the volunteer counsel to the Mattachine Society, one of the country’s first gay-rights organizations.

… Mr. Freedman sometimes adopted other unpopular stances. He participated in antiwar protests during the Vietnam War, raised questions about the fairness of federal juries and even challenged civil rights leaders to expand their views of liberty beyond the issue of race. ‘When a man fights for civil rights only when he is directly involved,’ he said in a speech at Howard University in 1963, ‘his real concern is himself, and not the Constitution, the Bill of Rights or his fellow man. Negro civil-rights leaders, like everyone else, should be civil libertarians, regardless of race or color.’

In 1973, Mr. Freedman became the law school dean at Hofstra, only to resign four years later in a dispute with the university’s leadership. He remained on the faculty, however, and lectured widely throughout the country. He was the first executive director of the U.S. Holocaust Memorial Council, from 1980 to 1982.” [….] For the entire article, see here.

I was fortunate to have occasionally corresponded with Monroe on a variety of topics. At the Legal Ethics Forum we had a few spirited debates related to the Israeli-Palestinian conflict, but that was perhaps the only issue on which we did not see eye-to-eye. When Monroe was once scheduled to give a lecture abroad he wrote to inquire what I knew about the differences between the adversary and inquisitorial legal systems (not very much), so I sent him some articles I thought he could tackle in a short span of time. But that was not representative of our cyberspace relationship, as it was more often yours truly on the learning end, especially with regard to our criminal justice system: the legal right to counsel, the abuse of prosecutorial discretion and the inordinate power of the American prosecutor generally, and, relatedly, the “elusive quest for poor people’s justice” (the subtitle of Karen Houppert’s 2013 book, Chasing Gideon). And I was honored to be among those who routinely received Monroe’s articles by post. Finally, I’m blessed to count among my law books a copy of his text on lawyers’ ethics (co-authored with Abbe Smith), as well as his co-edited work, How Can You Represent Those People? (Palgrave Macmillan, 2013). Inside the latter, Monroe penned a very kind and supportive note that is a fitting memorial token of all the reasons I will sorely miss this remarkable human being.

We’re paying tribute to Monroe over at the Legal Ethics Forum, where he was a blogger. And at Dorf on Law, Professor James Sample shares a personal remembrance of his colleague. Update: Also at LEF, Abbe Smith delivered this moving tribute at Monroes memorial.... 

Friday, February 27, 2015

Black History…and the history of the struggles of oppressed peoples everywhere: Paul Robeson—KPFA Interview, February 8, 1958

An inspirational interview with Paul Robeson on KPFA (many thanks to Michael Duff for the link). 

Recommended Reading: 
  • Duberman, Martin Bauml. Paul Robeson. New York: Alfred A. Knopf, 1988. 
  • Robeson, Paul. Here I Stand. Boston, MA: Beacon Press, 1988 (first edition, 1958).

Monday, February 09, 2015

Miasmic Morality: Pusillanimous Pussyfootin’ on Desegregation

In honor of Black History Month:
“Faulkner and Desegregation” 
Partisan Review, Fall 1956 (Vol. 23, No. 4): 568-573
By James Baldwin

Any real change implies the breakup of the world as one has always known it, the loss of all that gave one an identity, the end of safety. And at such a moment, unable to see and not daring to imagine what the future will now bring forth, one clings to what one knew, or thought one knew; to what one possessed or dreamed that one possessed. Yet, it is only when a man is able, without bitterness or self-pity, to surrender a dream he has long cherished or a privilege he has long possessed that he is set free—he has set himself free—for higher dreams, for greater privileges. All men have gone through this, go through it, each according to his degree, throughout their lives. It is one of the irreducible facts of life. And remembering this, especially since I am a Negro, affords me almost my only means of understanding what is happening in the minds and hearts of white Southerners today.

For the arguments with which the bulk of relatively articulate white Southerners of goodwill have met the necessity of desegregation have no value whatever as arguments, being almost entirely and helplessly dishonest, when not, indeed, insane. After more than two hundred years in slavery and ninety years of quasi-freedom, it is hard to think very highly of William Faulkner’s advice to “go slow.” “They don’t mean go slow,” Thurgood Marshall is reported to have said, “they mean don’t go.” Nor is the squire of Oxford very persuasive when he suggests that white Southerners, left to their own devices, will realize that their own social structure looks silly to the rest of the world and correct it of their own accord. It has looked silly, to use Faulkner’s rather strange adjective, for a long time; so far from trying to correct it, Southerners, who seem to be characterized by a species of defiance most perverse when it is most despairing, have clung to it, at incalculable cost to themselves, as the only conceivable and as an absolutely sacrosanct way of life. They have never seriously conceded that their social structure was mad. They have insisted, on the contrary, that everyone who criticized it was mad.

Faulkner goes further. He concedes the madness and moral wrongness of the South but at the same time he raises it to the level of a mystique which makes it somehow unjust to discuss Southern society in the same terms in which one would discuss any other society. “Our position is wrong and untenable,” says Faulkner, “but it is not wise to keep an emotional people off balance.” This, if it means anything, can only mean that this “emotional people” have been swept “off balance” by the pressure of recent events, that is, the Supreme Court decision outlawing segregation. When the pressure is taken off—and not an instant before—this “emotional people” will presumably find themselves once again on balance and will then be able to free themselves of an “obsolescence in [their] own land” in their own way and, of course, in their own time. The question left begging is what, in their history to date, affords any evidence that they have any desire, or capacity to do this. And it is, I suppose, impertinent to ask just what Negroes are supposed to do while the South works out what, in Faulkner’s rhetoric, becomes something very closely resembling a high and noble tragedy.

The sad truth is that whatever modifications have been effected in the social structure of the South since the Reconstruction, and any alleviations of the Negro’s lot within it, are due to great and incessant pressure, very little of it indeed from within the South. That the North has been guilty of Pharisaism in its dealing with the South does not negate the fact that much of this pressure has come from the North. That some—not nearly as many as Faulkner would like to believe—Southern Negroes prefer, or are afraid of changing the status quo does not negate the fact that it is the Southern Negro himself who, year upon year, and generation upon generation, has kept the Southern waters troubled. As far as the Negro’s life in the South is concerned, the NAACP is the only organization which has struggled, with admirable single–mindedness and skill, to raise him to the level of a citizen. For this reason alone, and quite apart from the individual heroism of many of its Southern members, it cannot be equated, as Faulkner equates it, with the pathological Citizen’s Council. One organization is working within the law and the other is working against, and outside it. Faulkner’s threat to leave the “middle of the road” where he has, presumably, all these years, been working for the benefit of Negroes, reduces itself to a more or less up-to-date version of the Southern threat to secede from the Union.

Faulkner—among so many others!—is so plaintive concerning this “middle of the road” from which “extremist” elements of both races are driving him that it does not seem unfair to ask just what he has been doing there until now. Where is the evidence of the struggle he has been carrying on there on behalf of the Negro? Why, if he and his enlightened confreres in the South have been boring from within to destroy segregation, do they react with such panic when the walls show any signs of falling? Why—and how—does one move from the middle of the road where one was aiding Negroes into the streets to shoot them?

Now it is easy enough to state flatly that Faulkner’s middle of the road does not—cannot—exist and that he is guilty of great emotional and intellectual dishonesty in pretending that it does. I think this is why he clings to his fantasy. It is easy enough to accuse him of hypocrisy when he speaks of man being “indestructible because of his simple will to freedom.” But he is not being hypocritical; he means it. It is only that Man is one thing—a rather unlucky abstraction in this case—and the Negroes he has always known, so fatally tied up in his mind with his grandfather’s slaves, are quite another. He is at his best, and is perfectly sincere when he declares, in Harpers: “To live anywhere in the world today and be against equality because of race or color is like living in Alaska and being against snow. We have already got snow. And as with the Alaskan, merely to live in armistice with it is not enough. Like the Alaskan, we had better use it.” And though this seems to be flatly opposed to his statement (in an interview printed in The Reporter) that, if it came to a contest between the Federal government and Mississippi, he would fight for Mississippi, “even if it meant going out into the streets and shooting Negroes,” he means that, too. Faulkner means everything he says, means them all at once, and with very nearly the same intensity. This is why his statements demand our attention. He has perhaps never before more concretely expressed what it means to be a Southerner.

What seems to define the Southerner, in his own mind at any rate, is his relationship to the North, that is, to the rest of the Republic, a relationship which can at the very best be described as uneasy. It is apparently very difficult to be at once a Southerner and an American; so difficult that many of the South’s most independent minds are forced into the American exile; which is not, of course, without its aggravating, circular effect on the interior and public life of the South. A Bostonian, say, who leaves Boston is not regarded by the citizenry he has abandoned with the same venomous distrust as is the Southerner who leaves the South. The citizenry of Boston do not consider that they have been abandoned, much less betrayed. It is only the American Southerner who seems to be fighting, in his own entrails, a peculiar, ghastly, and perpetual war with all the rest of the country. (‘Didn’t you say,’ demanded a Southern woman of Robert Penn Warren, ‘that you was born down here, used to live right near here?’ And when he agreed that this was so: ‘Yes . . . but you never said where you living now!’)

The difficulty, perhaps, is that the Southerner clings to two entirely antithetical doctrines, two legends, two histories. Like all other Americans, he must subscribe, and is to some extent controlled by the beliefs and the principles expressed in the Constitution; at the same time, these beliefs and principles seem determined to destroy the South. He is, on the one hand, the proud citizen of a free society and, on the other, is committed to a society which has not yet dared to free itself of the necessity of naked and brutal oppression. He is part of a country which boasts that it has never lost a war; but he is also the representative of a conquered nation. I have not seen a single statement of Faulkner’s concerning desegregation which does not inform us that his family has lived in the same part of Mississippi for generations, that his great-grandfather owned slaves, and that his ancestors fought and died in the Civil War. And so compelling is the image of ruin, gallantry and death thus evoked that it demands a positive effort of the imagination to remember that slaveholding Southerners were not the only people who perished in that war. Negroes and Northerners were also blown to bits. American history, as opposed to Southern history, proves that Southerners were not the only slaveholders, Negroes were not even the only slaves. And the segregation which Faulkner sanctifies by references to Shiloh, Chickamauga, and Gettysburg does not extend back that far, is, in fact, scarcely as old as the century. The “racial condition” which Faulkner will not have changed by “mere force of law or economic threat” was imposed by precisely these means. The Southern tradition, which is, after all, all that Faulkner is talking about, is not a tradition at all: when Faulkner evokes it, he is simply evoking a legend which contains an accusation. And that accusation, stated far more simply than it should be, is that the North, in winning the war, left the South only one means of asserting its identity and that means was the Negro.

“My people owned slaves,” says Faulkner, “and the very obligation we have to take care of these people is morally bad.” “This problem is ... far beyond the moral one it is and still was a hundred years ago, in 1860, when many Southerners, including Robert Lee, recognized it as a moral one at the very instant they in turn elected to champion the underdog because that underdog was blood and kin and home.” But the North escaped scot-free. For one thing, in freeing the slave, it established a moral superiority over the South which the South has not learned to live with until today; and this despite—or possibly because of—the fact that this moral superiority was bought, after all, rather cheaply. The North was no better prepared than the South, as it turned out, to make citizens of former slaves, but it was able, as the South was not, to wash its hands of the matter. Men who knew that slavery was wrong were forced, nevertheless, to fight to perpetuate it because they were unable to turn against “blood and kin and home.” And when blood and kin and home were defeated, they found themselves, more than ever, committed: committed, in effect, to a way of life which was as unjust and crippling as it was inescapable. In sum, the North, by freeing the slaves of their masters, robbed the masters of any possibility of freeing themselves of the slaves.

When Faulkner speaks, then, of the “middle of the road,” he is simply speaking of the hope—which was always unrealistic and is now all but smashed—that the white Southerner, with no coercion from the rest of the nation, will lift himself above his ancient, crippling bitterness and refuse to add to his already intolerable burden of blood-guiltiness. But this hope would seem to be absolutely dependent on a social and psychological stasis which simply does not exist. “Things have been getting better,” Faulkner tells us, “for a long time. Only six Negroes were killed by whites in Mississippi last year, according to police figures.” Faulkner surely knows how little consolation this offers a Negro and he also knows something about “police figures” in the Deep South. And he knows, too, that murder is not the worst thing that can happen to a man, black or white. But murder may be the worst thing a man can do. Faulkner is not trying to save Negroes, who are, in his view, already saved; who, having refused to be destroyed by terror, are far stronger than the terrified white populace; and who have, moreover, fatally, from his point of view, the weight of the Federal government behind them. He is trying to save “whatever good remains in those white people.” The time he pleads for is the time in which the Southerner will come to terms with himself, will cease fleeing from his conscience, and achieve, in the words of Robert Penn Warren, “moral identity.” And he surely believes, with Warren, that “Then in a country where moral identity is hard to come by, the South, because it has had to deal concretely with a moral problem, may offer some leadership. And we need any we can get. If we are to break out of the national rhythm, the rhythm between complacency and panic.”  

But the time Faulkner asks for does not exist—and he is not the only Southerner who knows it. There is never time in the future in which we will work out our salvation. The challenge is in the moment, the time is always now.

Sunday, February 01, 2015

The humanist spirituality of Charles Wilbert White

The humanist spirituality*—or beauty, goodness, and dignity—in the work of the Black artist, Charles Wilbert White (April 2, 1918 – October 3, 1979):

“…The main point is that what really I’ve always tried to do,…which I think most artists have to do, is that I try to deal with truth as truth may be in my personal interpretation of truth and truth in a very spiritual sense—not ‘spiritual’ meaning religiously spiritual, but ‘spiritual’ in the sense of the inner-man, so to speak. I try to deal with beauty, and beauty again as I see it in my… interpretation of it, the beauty in man, the beauty in life, the beauty, the most precious possession that man has is life itself. And that essentially I feel that man is basically good. I have to start from this premise in all my work because I’m almost psychologically and emotionally incapable of doing any meaningful work which has to do with something I hate. I’ve tried it. There’s been a number of tragedies in my life, in my family’s life. My people on my mother’s side come from Mississippi and we’ve had five lynchings in my family, two uncles and three cousins over a long span of years. I’ve lived in the South, have had unpleasant personal experiences, been beaten up a couple of times, once in New Orleans and once in Virginia. My people all lived in rural sections mostly, were all farmers, so, and yet, at the same time I still maintain in spite of, again, my experiences, my family’s experience, tragedies, I still feel that man is basically good. 
The other thing I try to deal with, the third point, is dignity. And I think that once man is robbed of his dignity he is nothing. And I try to take the sense, well I deal with Negro people primarily in terms of image I try to give it the meaning of universality to it. I don’t address myself primarily to the Negro people. They certainly are key, you know, and a major part of the audience that I address myself to, but generally I use an image in a more formal, universal sense than is sometimes understood by critics or people who see it.” 
Excerpt from an oral interview with White conducted by Betty Hoag for the Smithsonian Archives of American Art, March 9, 1965, in Los Angeles, California. 
* For an introductory outline of such a spirituality, please see here. 

Image: Charles White, Trenton Six (1949)

Friday, January 30, 2015

Condorcet’s “inner resolve”

“High priority for the regime was Condorcet’s liquidation. Sentenced to death as an outlaw on 2 October 1793, he asked his wife to divorce him to protect her and save his assets for their daughter. Despite repeated searchers, he eluded his foes and during many months successfully hid with Cabanis’s help, alternately at Mme. Helvétius’s residence and Garat’s. Later he transferred to another hiding place in Paris’s southern fringe, remaining concealed until March 1794. Fending off their depression, Sophie—who according to Hébert had had an affair with Ducos—labored at translating Smith’s Wealth of Nations, Condorcet at his Tableau historique des progrès de l’esprit humain. As the Terror engulfed them in his last months, he refused to give up the courageous optimism infusing his early efforts throughout the revolutionary years. If anyone persevered indomitably under Robespierre’s menace, it was Condorcet.
‘Shall we believe the opinion interpreting equality not as equal access to enlightenment, or equal development of moral sentiments purified and perfected by reason, but instead as equality of ignorance, corruption, and ferocity, can permanently degrade a nation? Shall we believe these men [Marat and Robespierre] fostering this stupid opinion, whose ambitious and jealous mediocrity renders enlightenment odious and virtue suspect, can maintain a durable illusion? No, they can make humanity weep over the loss of some rare and precious men that are entirely worthy of her, they can make their country sigh over the irreparable injustices they wreak, but they will not prevent the Enlightenment’s advance, even if it is checked temporarily; it will resume and accelerate. Certainly it is possible to deceive peoples and mislead them—but not permanently brutalize and corrupt them.’ 
Such a valiant profession of faith required great inner resolve at a time when elimination of the intellectual bloc who forged the Revolution was unrelenting, and paralleled by stringent measures emasculating all political debate, the city sections, clubs, and departmental administrations.—Jonathan Israel, from his chapter on “The Terror” in Revolutionary Ideas: An Intellectual History of the French Revolution from The Rights of Man to Robespierre (2014): 534-535.