The Corporate Response to Trump

I have been suggesting that the “public trust and confidence” analogy between public commitment to court processes and fairness and public politics process and fairness might be useful.  The idea is that we need to find the way to talk about political fairness being more important than any particular outcome just like we have done so in the courts.

Here is an additional if somewhat different parallel.

At the same time as public trust in the courts became an issue, so did business and corporate trust.  Here the issue, at least for large cases, was speediness and efficiency.  Here the courts responded with the creation of business courts, designed to focus appropriate resources on big cases for big business.  I think that this initiative is perceived to have worked.  It was not the outcomes that generally worried big corporations, it was the delay and  uncertainty.

Trump’s recent moves to tear up the world financial system can already be seen to be provoking huge angst in these companies — internationally,  not just nationally.

I have long believed that he real reason Nixon fell was not Watergate, but that he and his apparat were holding up corporations for donations, using governmental power and the threat of its use to get campaign contributions.  To return to the public trust and confidence analogy, its not that corporations want fairness and predictability between rich and non-rich, but they depend on it between rich and rich.  They do not want Putinism.

I suspect we  will see a replay in the corporate response here.






Posted in Access to Justice Generally, Anti-Trust, Federal Agencies, Federal Courts, International Cooperation, Judicial Supremacy, Political Support, Supreme Court, White House

Justice Kennedy’s Opinion On “Baking Discrimination” Is Clarion Call for Process Neutrality In The Entire Governmental Sphere

In a brilliant piece in Politico today, Professor Richard Primus argues that the Baking for Gay Marriage Opinion, by rejecting broad First Amendment protections for discrimination, sets up the travel ban case for a similarly positive outcome, not only because of the general principle, but because of the use of in focus statements to show animus by a legal decision maker.

What may ultimately be more important even than this is the potential for the Opinion to show the importance of neutral process by authorized decision makers;

Justice Kennedy also took a capacious view of what sorts of statements by decisionmakers would suffice to show unconstitutional prejudice. Rather than saying the seven-member Colorado Civil Rights Commission had acted solely or even predominantly on a prejudiced basis, Justice Kennedy wrote that the Commission’s process had “some elements of a clear and impermissible hostility” toward the baker’s religious beliefs. One commissioner in the proceeding described religion as having contributed to some of history’s greatest evils, including slavery and the Holocaust. Another commissioner said that “if a businessman wants to do business in the state and…the law’s impacting his personal belief system, he needs to look at being able to compromise.” On its face, the proposition that someone “needs to look at being able to compromise” doesn’t seem like anti-religious intolerance. But Justice Kennedy regarded the statements of these two commissioners, taken together, as exhibiting a prejudiced attitude that the First Amendment prohibits. In Kennedy’s formulation, the First Amendment prohibits “even subtle departures from neutrality on matters of religion.”

I had been thinking a lot recently about the relationship between public understanding of the importance of procedural fairness as compared to at least the Trumpsters’ apparent contempt for the importance of governmental process neutrality.

In the end, we have to persuade such folks that regardless of their own political opinion, they have a deep interest in the neutrality of governmental decision-making.  This case is an ideal example.  By making the case about process fairness, Kennedy showed that such fairness is important to all, regardless of their beliefs.  Its one thing to cheer someone getting shafted.  It another to have it happen to you, with no redress.

Indeed, as the writer explains, Kennedy went out of his way to emphasize the breadth of potential consideration of non-neutral statements to cast the neutrality of an ultimate decision into question:

To be sure, Monday’s case and Hawaii v. Trump are not exactly the same. The prejudice question in the entry-ban case is about prejudice in the process of lawmaking, and Monday’s bakery decision was about prejudice in the application of the law to a specific person. Sometimes that distinction makes a difference. So it seems noteworthy that Justice Kennedy went out of his way in Masterpiece Cakeshop to signal that he does not believe that distinction to be significant. “Members of the Court have disagreed on the question whether statements made by lawmakers [as opposed to adjudicators] may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion,” he wrote. To illustrate that disagreement, Justice Kennedy cited a 1993 decision in which he had disagreed with the late Justice Antonin Scalia on that very point—with Kennedy taking the view that the statements of lawmakers do matter.

So this case could be the bridge to broadening the importance of neutrality in all governmental decision-making.  If it is true that Kennedy understands the general importance of this, then the Solicitor General is going to have a bad few weeks, and hopefully, years.


Posted in Access to Justice Generally, Discrimination, Federal Courts, Freedom of Expression, Immigration, Political Support, Supreme Court

Study Showing Greater Racial Bias By Republican Judges Has to Shatter Our Assumptions

I was getting ready to draft a rebuttal to an article from the New York Times, Would you go to a Republican Doctor, reporting a study that “knowing about people’s political beliefs did interfere with the ability to assess those people’s expertise in other, unrelated domains,” and suggesting that that interfered with rational decision-making.  In one of those “cooperation in meaningless tasks studies” (my term), “people sought and then followed the advice of those who shared their political opinions on issues that had nothing to do with politics, even when they had all the information they needed to understand that this was a bad strategy.”  If you want the detail, look at the article.  In short, people trust those who agree with them politically, even if irrational.

But according to a very different article:

Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants.“Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared to Democratic-appointed judges,” the study found, adding, “These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.”


The study was conducted by two professors at Harvard Law School, Alma Cohen and Crystal S. Yang. They examined the sentencing practices of about 1,400 federal trial judges over more than 15 years, relying on information from the Federal Judicial Center, the United States Sentencing Commission and the Transactional Records Access Clearinghouse at Syracuse University.

Perhaps most astonishingly:

“The racial gap by political affiliation is three months, approximately 65 percent of the baseline racial sentence gap,” the authors wrote.

This has profound implications.

Firstly, first think about the fact that almost two thirds of the racial sentencing disparity in a case in the Federal Court is attributable to being a Republican judge.  Now, judging is perhaps the most transparent and discretion-guided element in the system.  What on earth is this number for the other players, who operate more in the shadows, and with less constraints on the behavior.  Moreover, it would be nice to think that the judicial selection process somewhat filters out the more obviously racist judges.

Add to this all the emerging data about correlations between Trump voting and things like authoritarian personality, preference for dominance in society, contempt for science, and racism.

So, put simply and sadly, political attitudes are highly relevant to certain kinds of capacity, and as the judge study shows, appears to have been so for a long time.  In medicine, for example, the doctor’s attitude to human relationships is absolutely critical.  I hope I will be persuaded otherwise, but for now, I do care about my doctor’s world view. — and not just my doctor’s.






Posted in Access to Justice Generally, Bias, Chasm with Communities, Discrimination, Federal Courts | 1 Comment

Excuses for Not Agreeing to Represent Donald Trump

Here are some of the possible excuses:

I have clients who are Democrats — that’s a conflict.

I have clients who are Republicans — that’s a conflict.

I have clients who are Americans — that’s a conflict.

I have clients who are Russians — that’s NOT a conflict, but it might appear to some to be one.

Posted in Humor | 1 Comment

Trump-Olson Retainer and Non-Disclosure Agreement

So, that was quick.  The story that Trump might be represented by Ted Olson, was shot down within hours.

This blog has obtained a document which might explain why this marriage (a subject on which Olson has argued before the Supreme Court) might not have been made in heaven.

Below are extracts from the Draft Retainer and Non-Disclosure agreement apparently submitted to Trump by Olsen.

1.  This agreement for representation is between President of the United States of American Donald J. Trump (alias and hereafter “Moron”) and Theodore Olson, Esquire (hereafter Counsel).

2.  Moron agrees to provide to Counsel any and all information that might be used to support a process of impeachment against Vice President Mike Pence.  Counsel may use this information in his sole discretion.

3  Moron agrees that any breach of this agreement, whether intentional or unintentional, momentary or permanent, material or non-material, will constitute waiver of all Moron’s rights to confidentiality regardless of any and all provisions of low to the contrary.

4.  Moron agrees that Counsel may, as a matter of absolute right, enter into any representation agreement with any entity, including if he so chooses, any investigatory, prosecutorial, or impeachment process, regardless of any and all provisions of law to the contrary.

5.  Moron agrees to attempt to engage in live sex with a man above the age of consent on Fox News in prime time.

Posted in Humor, White House | 3 Comments

Larry Nassar Sentencing Might Stimulate Discussion About Judicial Neutrality

The New York Times Headline sets it up perfectly:

Victims in Larry Nassar Abuse Case Find a Fierce Advocate: The Judge

Now, the spouse of a sexual assault advocate within me cheers this on, but the former public defender within me squirms in my chair.  Moreover, as an advocate for neutral judicial engagement, and as one who believes that such neutrality has broader limits when a decision has been rendered and compliance has become the issue, my antenna are up.

On the one hand, we want judges to speak forcefully as the voice of the community.  On the other hand, without neutrality, that voice is nothing more than the baying of the crowd.

In this case lots of factors have to be taken into account.  This is a sentencing hearing, which at its best is a conversation between the parties enhanced by judicial candor.  The case was resolved by plea.  Moreover, the ultimate minimum sentence was what had already been accepted by the defendant in the plea agreement.  Thus, there is no argument that the defendant in this case was harmed (unless you read the judges comment on a death warrant as incitement to other inmates, which given prison dynamics, it may well function as.)

But, but, but.  There is something unseemly about the overall picture, if only because of “slippery slope” concerns.

So, maybe it is helpful to lay out what is necessary before “judicial advocacy” is appropriate.

No impact on neutrality of fact finding or decision-making.  In this case, there was no real decision-making.  But given judicial discretion in pleas, that may be less usual than we think.

No impact on perception of neutrality of the process as a whole.  Thus, if the judge was the fact finder, or if they entered controversial rulings in the court of the case, and then let rip at sentencing, there might be a perception of lack of neutrality that is ultimately in no one’s interest.

No Impact on perception of neutrality of the general role of the judicial.  This is the hardest and most speculative, given that it may depend on nuanced understanding of the phases of a case.

Any thoughts?




Posted in Access to Justice Generally, Judicial Ethics

Florida Bar Foundation and SRLN gets Kudos For their ATJ Mapping from ESRI, the GIS Company

I have already raved about this product, which brilliantly brings together multiple data to show the ATJ burden and treat from the Hurricane.

So it is great to see that ESRI, a very major GIS-mapping company has honored this project with posting on their Maps Gallery.

I really have only one point:  While the hurricane highlights the power of this tool, really it is just as powerful in every environment.  In particular, the pioneering of the LVI , “Legal Vunlnerbility Index,” both makes the data easier to understand, and makes it much more forceful.

I would challenge every ATJ Commission and every IOLTA program, to use these technologies to demonstrate need and impact.

Indeed, I would love to see a national LVI map.

Here is one of the LVI maps from the project.




Posted in Access to Justice Boards, Access to Justice Generally, Census Bureau, IOLTA, Mapping/GIS, Metrics, Software Developers, Technology