Of the few pleasures in law school, I enjoy learning about the America of old. And comparing it with the country we are today.

 

For example, reading one case recently, I realized that at the turn of the 20th century, the Mississippi legislature made it a misdemeanor crime to trade cotton futures. Ole' Miss determined it was against the public interest to engage in Wall Street-style gambling on Mississippi's main economic engine.

 

Go figure. A legislature stood up to the monied interests of its day. If only we could have found a legislature to outlaw trading of credit default swaps, and other exotic securities that are now toxic, we could have prevented the housing bubble, and maybe saved ourselves from this recession.

 

It's not like human history has not seen the negative impact of bubbles and futures trading before. But it was a surprise to me when I apprehended this gem about futures' regulation in my Conflicts of Laws class.

 

Conflicts, of course, is the study of what happens when the right thing changes from state to state, and how courts determine which law to apply when a contract made in Connecticut by people from Delaware and Michigan, to be paid in California is breached in Ohio, when it should have been performed in Illinois.

 

Each state has its own interests, and courts have to weigh these against Constitutional considerations, and most consider the area of conflicts to be hopelessly confused. It’s pretty much a coin flip, even where seemingly simple things like land transactions don’t always go by the rules of the state where the land is.

 

Generally, I find conflicts to be the study of how corporations manage to evade lawful restrictions on their aggregations of capital and pursuit of profit. Fauntleroy v. Lum, 210 U.S. 230 (1908), the case focused on illegal cotton futures trading, is run of the mill, and the bad guy wins.

 

Written by Mr. Justice Oliver Wendell Holmes, that giant of American jurisprudence, Fauntleroy v. Lum holds that despite the illegal status of cotton futures trading in Mississippi, a man can win money on illegal cotton futures in Mississippi, go to Missouri to win a judgment against the debtor, then return to Mississippi and have a court enforce that judgment.

 

Holmes reasoned that the full faith and credit clause of the United States Constitution demanded Mississippi to enforce the judgment even though trading on cotton futures is illegal in Mississippi and against its interests.

 

The guy who did it in Mississippi and won, and went to a court in Missouri to enforce his winnings against a Mississippi resident can do so, with impunity.

 

Mississippi's interest in preventing activities that could destroy its economy is subservient to Missouri's interest in having a stable judgment that will be honored in all 50 states, at least according to Holmes and the Supreme Court of 1908. I reckon that the Roberts Supreme Court would do the same today.

 

It is an unpalatable decision at best, and one that subverts the power of sovereign states. It should be expected from a Constitution written to place the rights of property and slaveholding on the same plane as civil rights, if not a higher plane than civil rights.

 

More on Futures Trading...

 

The Class of 2010 at the University of Connecticut School of Law graduates 212 days from today, Friday, October 23, 2009. But who's counting?

 

Me. At the end of this semester, I will have to complete only seven credits to obtain the 86 required to earn my juris doctor. I am done with it.

 

Everyone says fear the bar exam, but actually, I look forward to it.

 

More frighteningly, I fear the future of the legal profession. My fears don't come from the collapsing economy that has shuttered the doors on many a law firm. Nor do my fears mimic those of the dozens of studies and articles written about how law school fails to prepare lawyers for the legal practice and the disconnect between the court room and the classroom.

 

The grim picture that I see for the law is based on my observations from attending classrooms in two different law schools, one private, Quinnipiac University, and one public, UConn.

 

The history of American law has never thrilled me, given the fact that our best and brightest judges (who are usually lawyers) decided in favor of slavery in Dred Scott, segregation in Plessy v. Ferguson and judicial control over elections in Bush v. Gore.

 

And some scholars, like civil rights expert Prof. Derek Bell, who gets short shrift in the legal classroom, even maintain that the supposed high points of American jurisprudence, like Brown v. Board of Education, can be read as a further defense of property over people. After all, Brown gave us the reform doctrine of "with all deliberate speed."

 

Prof. Bell further maintains that the U.S. Constitution contains no less than a dozen provisions designed to protect the institution of slavery.While I hoped to learn some of this in a required Constitutional Law class, I didn't.

 

Mind you, my constitutional law professor at Quinnipiac is one of the state's more respected civil libertarians, and in his defense, there is a vast body of constitutional law that needs to be taught, and only so much time.

 

So I had to seek it out, like taking a class of the American Legal History of Race Relations, taught by Connecticut Superior Court Judge Barry Stevens at Quinnipiac. Where the required Constitutional Law class has 70 students or so, Judge Stevens had seven students, some of whom spent the evening
classes instant messaging their friends on facebook.

 

You can't teach consciousness, but you can ban laptops. Even so, it seems that the current educational regime, though, elevates the study of core capitalist legal doctrine above human rights. Property and criminal law are required classes, yet Stevens' class isn't or an analogous human rights law class isn't.

 

Considering that the fundamental issue in the criminal justice system is race, one would think we want law schools to teach about the impact of race on law. Nope.

 

Law School Blues, continued...

Editor's Note: I wrote this as the final assignment for Quinnipiac University Prof. John Thomas' comparative health law class. Prof. Thomas taught the class at Trinity College in Dublin in June 2007. It seems apropos to post now, just keep in mind that while voters have elected new chief executive officials for two of the three countries at issue, the policies at issue have not altered. And apologies in advance for the academic voice.

 

Quarantine and Western Democracies: Comparing Influenza Pandemic Response Plans of Canada, Australia and the United States of America

 

The dangers of a new influenza pandemic cannot be underestimated, according to the World Health Organization.

 

"With the increase in global transport and communications, as well as urbanization and overcrowded conditions, epidemics due the new influenza virus are likely to quickly take hold around the world," the WHO's website states.

 

Broad consensus exists among nations that the planet must not allow a repeat of the 1918 influenza pandemic that killed between 20 to 50 million people. Modern science has demonstrated that influenza viruses mutate every quarter of a century or so and infect people anew.

 

The last major mutation occurred in 1968, and with the Avian Bird flu's appearance in 2003 in Asia, health leaders across the planet pushed countries to formulate their pandemic response plans.

 

Countries generally agree on the hazards and the genetics of the influenza virus, but comparing the detailed response plans among three major Western industrialized democracies demonstrates that no scientific or legal consensus exists on how to slow or stop the spread of the virus within national borders.

 

Between Canada, Australia and the United States – all of which share an English common-law legal background and an Enlightenment scientific heritage – the U.S. stands along in calling for a militaristic response to a pandemic crisis in the form of the community quarantine measure of cordon sanitaire, or garrisoning neighborhoods and preventing people from coming or going.

 

The Canadian plan notes that the unproven science of cordon sanitaire does not justify its usage, whereas the Australian health ministry suggests milder quarantine steps. U.S. President George W. Bush suggested in October 2005 that cordon sanitaire could be enforced through military rule.

 

The rest of the report

Editor's Note: On occasion, law school homework meshes with current events. This reaction paper provides a rare example where what we read in class would not put non-law students to sleep. More often than not, theoretical readings and ancient precedent lack the thrill of a Grisham novel. While this isn't "The Firm," I found the topic worth sharing. For those curious about what a law school assignment reads like, enjoy. I should also note that this was a graded assignment, and before publishing this, I received permission from my professor to do so. The casebook referred to is Mass Media Law Cases and Materials, 7th Edition by Franklin, Anderson and Lidsky.

 

Richmond Newspapers, Inc. v Virginia, 448 U.S. 555 (1980) claims that "the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility and emotion." As a prong of the holding guaranteeing newsgatherers the right to attend trials, the Supreme Court opined that distribution of information about criminal and civil trials helps prevent vigilante justice. "Without awareness that society's responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated and may manifest themselves in some form of vengeful 'self-help'." Id. (casebook, 674)

 

This theory sounds remarkably similar to the safety-valve theory of free speech. Justice Brandeis elucidated how free expression creates political stability in his concurrence in Whitney v. California, 274 U.S. 357, 375 (1927). "Those who won our independence [knew] that fear breeds repression, that repression breeds hate, that hate menaces stable governments; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies."

 

Free speech philosopher Thomas I. Emerson in The System of Freedom of Expression (1970) further argued that free expression "provides a framework in which the conflict necessary to the progress of a society can take place without destroying the society." The safety valve, in essence, allows politically marginalized people to channel their fervor to speech, not violence.

 

While the readings on "Access to Judicial Proceedings" offer no evidence of any cross-pollination between the prophylactic purpose of open trials to stem vigilante justice and the safety valve value of free speech as a means for preventing political violence, the cases referenced throughout the reading invite comparison, and indeed, it seems that the two ideas go hand in hand.

 

For example, Press Enterprise Co. v. Superior Court (II), 478 U.S. 1 (1986), explores the "'community therapeutic value' of openness" (CB 687) in criminal trials. Press Enterprise II explains that heinous violent crimes can "provoke public concern, outrage and hostility." The public awareness of justice being done resulting from news coverage of trials increases confidence in the judicial system, and "an outlet is provided for these understandable reactions and emotions." Thus, a free press reporting on the wheels of justice can avert the angry mob certain to arise in the absence of a prosecution. Press Enterprise II then quotes Press Enterprise I for the proposition that openness creates an appearance of fairness.

 

When openness reveals unfairness in the machinations of justice, the cathartic value of observing the judicial process drops, and an obvious injustice can create enough pressure to blow through the safety valve of free speech. The riots following the verdict for the police officers who beat Rodney King attest to this potential exception.

 

Where there is limited openness in judicial proceedings, as seen in the post 9/11-terrorism cases, has the prophylactic function of the court been served? While this may be too broad a question to ask, it's worth sketching an argument that more sunlight in trials for terrorism suspects could reduce violent hate crimes against Muslims and Arabs living in the United States.

 

Click here to finish reading the assignment...

 

The branch of legal critique known as Critical Legal Studies posits that law is merely a linguistic fig leaf to rationalize oppression. I spend hours and hours every day reading decisions that parse words, and every day grow more convinced that Critical Legal Studies is right.

 

One class evidencing this is administrative law – the branch of legal theory which governs agencies like the Environmental Protection Agency, the National Labor Relations Board, The Securities and Exchange Commission, the Federal Communications Commission, etc.

 

Last week, we read a case from 1988 about the legality of a retroactivity formula used by the Department of Health and Human Services to recalculate payments and collections from hospitals for contracts from years past.

 

My professor, brilliant and well-versed, asked me if I thought it rational that DHHS gave the hospitals notice the formula was changing.

 

Sure, I said, it is reasonable to allow such an alteration if the hospitals know in advance formula for past years was changing. But what is crazy, I said, is that the government here is taking money from hospitals. Classmates laughed, more in approval and surprise than mocking of me (which has happened before).

 

And the class discussion returned to the arguments of Bowen v. Georgetown. I sat awestruck by the absurdity of the policy, and the enabling devices created by the law to justify taking money away from hospitals. I didn’t come to law school to learn how to bankrupt health care.

 

If I wasn’t in that class, no one else would have voiced that concern. I employ Critical Legal Studies in class because it says that where there are 5-4 opinions in the Supreme Court, it means that logical minds can arrive at two completely opposing, yet seemingly correct answers to the same legal problem.

 

Therefore, something else, like the ideological bent of the justices, or even what the justices had for breakfast, influences their decisions, and is in reality the real reason for the court’s holding. Pick any 5-4 decision, like, say, Bush v. Gore, and consider that more than legal wrangling with precedent came into play.

The Supreme Court's Fig Leaf, continued...