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Monday, December 3, 2007

Drafting Lawyers?

What to Do With All the Baby Lawyers
Andrew Cohen, Washington Post, December 3, 2007

This front-page article is a classic dog-bites-woman story: about a law student who, after much self-absorbed agonizing, decided to take a high-paying job as an associate at a big law firm instead of taking a public interest position. For generations law students have faced this choice, and typically have made this decision. Still, the story gives me another opportunity to rant against a system of supply and demand that is so warped and twisted it ought to be the subject of a congressional investigation -- a system, you should be reminded, that costs you money. The co-conspirators are law students, law school administrators (who charge outrageous amounts of money for tuition), law firm recruiters (who pay outrageous amounts of money for starting salaries for baby lawyers) and the schmillions of clients out there who accept outrageous litigation costs.

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Wow, what a curious set of thoughts. Having practiced law for many years and taught at a private law school for more years, I agree with some of what Mr. Cohen writes. He is correct, I believe that law school tuition is unnecessary high. In preparing for testimony before a state bar commission on "access to justice," I did a study on tuition increases at my own law school since my student days. Over the period of the study, the consumer price index had quadrupled but tuition had increased ninefold. The quality of the professional education had not increased significantly. Indeed, a pretty good argument could be made that it had decreased because the faculty had become ever more 'eggheaded.' The faculty were not interested much in the practice of law; it was in large measure to escape the onerous demands of the practice of law that they sought refuge in the law school. The curriculum came to include more and more esoteric and liberal arts type courses that may well have been interesting, but realistically were of rather little value as preparation for the practice of law. Tuition kept going up because of the availability of educational loan money, the students' willingness (probably the wrong word in many cases) to incur very large debts, and the university's practice of skimming off a good share of the law school's profits to support things like the graduate program in the theology department. And let us not forget the American Bar Association's role in the steady increase of law school revenues. The ABA entered into a consent decree with the US Justice Department (before it became corrupted) that (if I recall correctly) essentially admitted a form of price-fixing in its accreditation activities. In sum, there is much to be pretty disgusted about in American legal education.

On the other hand, how are these systemic problems helped by conscripting all law school graduates for two years of required service in 'the public sector'? Do you equate, Mr. C., working for the government with working for, e.g., the Salvation Army? And how many conscripted new law grads would do what many new law grads have done for years, i.e., get a job in government that will give them a leg up in getting a job with those law factories you abhor? A stint with the IRS or SEC or EPA can be turned to good use working for a big firm on behalf of big money corporate interests. Lastly, why do you ignore that substantial sector of the legal practice that serves non-corporate clients, the solo practitioners and small firm lawyers who help people with 'personal plights'? Surely the most legally underrepresented sector of American society is not units of government or not-for-profit institutions, but rather middle class and working class citizens who are hard-pressed to afford the services of any competent lawyers. They are the ones paying those inflated prices for products and services that you complain about, Mr. C. How about some help for them while you're conscripting young lawyers?
Posted by: P. Bosley Slogthrop | December 3, 2007 04:46 AM

Thursday, November 1, 2007

Tortured Words

Bush Backs Attorney General Nominee
President Bush today demanded that Democratic lawmakers stop pressing his attorney general nominee for his views on a harsh CIA interrogation technique and called for a prompt Senate confirmation vote in the interests of battling terrorism.
- By William Branigin and Dan Eggen

Comments
PBosleySlogthrop wrote:
George Bush tells the nation that asking his nominee for the post of Attorney General whether waterboarding is torture or illegal is "unfair." It reminds me of George Orwell's great 1946 essay on "Politics and the English Language." The latter George wrote: "Now, it is clear that the decline of a language must ultimately have political and economic causes: it is not due simply to the bad influence of this or that individual writer. But an effect can become a cause, reinforcing the original cause and producing the same effect in an intensified form, and so on indefinitely. A man may take to drink because he feels himself to be a failure, and then fail all the more completely because he drinks. It is rather the same thing that is happening to the English language. It becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts." Is there anything uglier that the games being played by Mr. Bush, Mr. Cheney and their apparatchiks, now including Judge Mukasey, with the word "torture"? And now what are we to make of the meaning of the word "unfair" when it is used as Mr. Bush uses it, to defend his nominee's inability to answer a simple question that everyone else in the world knows the answer to because the nominee "hasn't been briefed" on the "classified program"? Of course, it's Bush himself who determines who will or will not be briefed and what information will or will not be classified. Apparently Judge Mukasey can't be trusted with information about interrogation techniques before he is confirmed. "Unfair" indeed. It puts me in mind of another great quote in Alice in Wonderland (or Through a Looking Glass): "When I use a word, it means just what I want it to mean . . ." When Alice challenged that words have meanings independent of the speaker's intention, the response was something like "The question is who is to be master, that's all." "Torture" and "unfair" - they mean just what Bush and Cheney want them to mean, that's all. After all, as Bush reminded us, he's "the Decider"!
11/1/2007 8:33:43 PM

Tuesday, October 16, 2007

NeoNixonism and Bush

In the last post, I paraphrased Richard M. ("I am not a crook") Nixon's (in)famous assertion "If the president does it, it's not illegal" in his (in)famous 1977 interview by David Frost. It seemed prudent to review that interview again in light of George Bush's scary assertions of presidential powers. The parallels between Nixon's philosophy of presidential powers and Bush's are rather startling. Especially scary are the implications of the Nixon/Bush thinking in an era of endless war. Nixon, Bush, (and Abraham Lincoln?) claimed extraordinary powers to commit otherwise illegal acts because of the exigencies of war. The Vietnam War and the Civil War, however, were wars involving sovereign nations in the one case and a sovereign nation and its semi-sovereign states in the other. The wars were going to end at some point. There were governmental representatives to negotiate with or from whom to accept surrender. None of that is true of Bush's endless 'WAR ON TERROR.' Under the Bush Doctrine, the extraordinary powers claimed by Nixon and Lincoln would be ordinary powers. Quaere whether this has already occurred in light of the Democratic Congress' unwillingness to consider impeachment of Bush and of the nearly thoroughly Republican federal judiciary. If it has, we can kiss goodbye the notion of civil liberties and 'the land of the free.'

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The following is an excerpt from an interview with former President Nixon conducted by David Frost. It aired on television on May 19, 1977.

FROST: The wave of dissent, occasionally violent, which followed in the wake of the Cambodian incursion, prompted President Nixon to demand better intelligence about the people who were opposing him. To this end, the Deputy White House Counsel, Tom Huston, arranged a series of meetings with representatives of the CIA, the FBI, and other police and intelligence agencies.

These meetings produced a plan, the Huston Plan, which advocated the systematic use of wiretappings, burglaries, or so-called black bag jobs, mail openings and infiltration against antiwar groups and others. Some of these activities, as Huston emphasized to Nixon, were clearly illegal. Nevertheless, the president approved the plan. Five days later, after opposition from J. Edgar Hoover, the plan was withdrawn, but the president's approval was later to be listed in the Articles of Impeachment as an alleged abuse of presidential power.

FROST: So what in a sense, you're saying is that there are certain situations, and the Huston Plan or that part of it was one of them, where the president can decide that it's in the best interests of the nation or something, and do something illegal.

NIXON: Well, when the president does it that means that it is not illegal.

FROST: By definition.

NIXON: Exactly. Exactly. If the president, for example, approves something because of the national security, or in this case because of a threat to internal peace and order of significant magnitude, then the president's decision in that instance is one that enables those who carry it out, to carry it out without violating a law. Otherwise they're in an impossible position.

FROST: So, that in other words, really you were saying in that answer, really, between the burglary and murder, again, there's no subtle way to say that there was murder of a dissenter in this country because I don't know any evidence to that effect at all. But, the point is: just the dividing line, is that in fact, the dividing line is the president's judgment?

NIXON: Yes, and the dividing line and, just so that one does not get the impression, that a president can run amok in this country and get away with it, we have to have in mind that a president has to come up before the electorate. We also have to have in mind, that a president has to get appropriations from the Congress. We have to have in mind, for example, that as far as the CIA's covert operations are concerned, as far as the FBI's covert operations are concerned, through the years, they have been disclosed on a very, very limited basis to trusted members of Congress. I don't know whether it can be done today or not.

FROST: Pulling some of our discussions together, as it were; speaking of the Presidency and in an interrogatory filed with the Church Committee, you stated, quote, "It's quite obvious that there are certain inherently government activities, which, if undertaken by the sovereign in protection of the interests of the nation's security are lawful, but which if undertaken by private persons, are not." What, at root, did you have in mind there?

NIXON: Well, what I, at root I had in mind I think was perhaps much better stated by Lincoln during the War between the States. Lincoln said, and I think I can remember the quote almost exactly, he said, "Actions which otherwise would be unconstitutional, could become lawful if undertaken for the purpose of preserving the Constitution and the Nation."

Now that's the kind of action I'm referring to. Of course in Lincoln's case it was the survival of the Union in wartime, it's the defense of the nation and, who knows, perhaps the survival of the nation.

FROST: But there was no comparison was there, between the situation you faced and the situation Lincoln faced, for instance?

NIXON: This nation was torn apart in an ideological way by the war in Vietnam, as much as the Civil War tore apart the nation when Lincoln was president. Now it's true that we didn't have the North and the South—

FROST: But when you said, as you said when we were talking about the Huston Plan, you know, "If the president orders it, that makes it legal", as it were: Is the president in that sense—is there anything in the Constitution or the Bill of Rights that suggests the president is that far of a sovereign, that far above the law?

NIXON: No, there isn't. There's nothing specific that the Constitution contemplates in that respect. I haven't read every word, every jot and every tittle, but I do know this: That it has been, however, argued that as far as a president is concerned, that in war time, a president does have certain extraordinary powers which would make acts that would otherwise be unlawful, lawful if undertaken for the purpose of preserving the nation and the Constitution, which is essential for the rights we're all talking about.

From the third Nixon-Frost interview, The New York Times, May 20, 1977, p. A16.

Chickens Coming Home to Roost?

Spy v. Spy
Andrew Cohen, Bench Conference, Washington Post
So much for keeping secrets. We learned this weekend that there's an internal dispute at the Central Intelligence Agency over the legality of the agency's interrogation and detention programs.

The President, may beets grow in his belly, blew off the anti-torture legislation not only with his "I'm the Decider, nobody tells me what to do" signing statement, but with the secret, made-to-order legal opinions from Gonzales' 'Yassuh boss whatever you say boss" Justice Department. It's hard to feel a lot of sympathy for torturers, even our own, but I confess to having some for the CIA operatives who did what they were told by the White House probably thinking, pace Richard Nixon, that 'if the president orders it, it's OK.' It may be that someday the chickens will come home to roost and someone will be punished for engaging in torture, but I doubt it. The recent action by the federal courts, including the Supremes, in dismissing the suit by the alleged German kidnap and torture victim on the 'state secrets' ground suggests that no one will ever be held to account for the criminal acts ordered by Bush and supported by Cheney, Addington, Gonzales et alia. So it looks like Nixon will ultimately be proved right, albeit 35 years too late to help him. If the President does it, it's OK. So much for the Rule of Law. Bush, like Nixon and France's King Louis XIV, could all say 'L'etat, c'est moi.' And Bush and his henchmen, like the later Louis XV, can add "Apres nous, le deluge." The nation will be paying for his hubris and essential stupidity for many, many years. One is reminded of Thomas Jefferson writing "Indeed I tremble for my country when I reflect that God is just."
Posted by: P. Bosley Slogthrop | October 15, 2007 02:36 PM

Saturday, October 13, 2007

Sun Rises in East, Heat Rises and Pope a Catholic!

Ex-Commander In Iraq Faults War Strategy
'No End in Sight,' Says Retired General Sanchez
By Josh White
Washington Post Staff Writer
Saturday, October 13, 2007; Page A01


Retired Lt. Gen. Ricardo S. Sanchez, who led U.S. forces in Iraq for a year after the March 2003 invasion, accused the Bush administration yesterday of going to war with a "catastrophically flawed" plan and said the United States is "living a nightmare with no end in sight."

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Finally, the truth comes out: Bush, Cheney and Rumsfeld, our homegrown axis of evil, were grossly incompetent in leading the United States into an invasion and occupation of Iraq. Surely it is a slow news day for both the Washington Post and New York Times to make this a front page story. Is there any sentient soul in the world who does not realize that the BushCheneyRummy plan (we use the term loosely) was "catastrophically flawed"? Is there anyone with eyes to see and ears to hear who does not realize that the United States is "living a nightmare with no end in sight'? Sanchez Sez: Bears Poop in the Woods!!!

What makes the Sanchez story newsworthy of course is simply the fact that it is the former top military commander in Iraq who is publicly uttering what is obvious to everyone. Sanchez Admits 'Water Runs Downhill"!!! Sanchez will undoubtedly be blasted by the likes of Rush, Sean, Laura, Glenn and the rest of the Fox News crowd. He will be blamed for everything from Abu Ghraib to the embarassing executions of Saddam and the guy who was decapitated by the noose. The Decider will magnanimously stay above the fray while his henchmen and apparatchiks busy themselves calumniating Sanchez the Failure. Nonetheless, the nation and the world know that Sanchez speaks the unutterable truth: the Republican, neocon, Israel-pushed adventure in Iraq is another American failure much like (dare we say it?) Vietnam. Are the generals to blame? Sure. Is the press to blame? Sure. Is the Department of Defense to blame? Sure. Is the State Department to blame? Sure. Are Bush and Cheney and Rumsfeld and their neocon diehard supporters and apologists to blame? Sure. We would need more arms than an octopus and more fingers than Shiva to point out all who are to blame for this catastrophe. Alas, all we need is a mirror to see that we too are to blame for following silently and meekly as the criminals in Washington led the nation into this Slough of Despond.

Wednesday, October 10, 2007

Remember Francoise Duclos? She was communications director for Canada’s then prime minister Jean Chretien. In 2002, she famously though undiplomatically called George W. Bush “a moron.” Mr. Bush, the” War President,” “the Decider,” and now “the commander guy” has spent the last 5 years proving Ms. Duclos right. Alas.
By percyslogthrop-mail | May 4, 2007 9:06:10 AM |
Eugene Robinson’s column Washington Post

I fear Mr. Cohen is engaging in wishful thinking again, as he did two days ago vis a vis Elizabth Holtzman's realism. Messrs. Bush and Gonzales are locked in a death embrace. If Bush were to nominate a person of high competence and integrity as Attorney General, he would leave his administration vulnerable to attacks from within, investigations he could not dismiss as mere 'partisan politics' like the congressional oversight investigations and hearings. Plus, once Gonzales was a goner, protected by neither his office nor the personal fealty of POTUS, he would quickly become fair game for even more attacks from administration insiders and other Republicans than he is enduring now. It wouldn't take long for him to start retaliating and trying to mount some kind of defense of himself and the only likely defensive targets for him would be the political people in the White House and indirectly, the Decider himself, at whose pleasure, as we all know, the US attorneys serve. Perhaps Gonzales would simply fall on his sword and go through the rest of his life with his honesty and integrity thoroughly discredited, but it doesn't seem likely. Witness George Tenet. If he does bite the dust, my bet on the likely replacement nominee is not Comey or Fitzgerald, but that loyal Bushie Michael Chertof. He's screwed up the Department of Homeland Security and the relief effort for Hurricane Katrina; why not give him a shot to continue the good work at the Department of Justice where he used to work. Maybe he could bring back Heckofajob Brownie as his deputy AG.
Posted by: P. Bosley Slogthrop | May 4, 2007 09:58 AM