David Foster Wallace died six years ago today, on September 12, 2008. The author of novels such as Infinite Jest, The Pale King, and essay collections such as A Supposedly Fun Thing I’ll Never Do Again hanged himself in the garage of his California home. DFW was 46.
David Foster Wallace was a lawyer’s writer, if ever one could use that label without intending insult. DFW was not a lawyer, though he famously became friends and collaborators with legal writing expert Bryan Garner. Garner’s co-author Justice Antonin Scalia is also said to be a fan. Countless attorneys who haven’t cracked a novel in years will brighten at the mention of DFW. Analytical, language-obsessed, and neurotic, he may have captured the modus operandi of many lawyers as well as any novelist or essayist could.
David Foster Wallace, especially for a fiction writer, was logical, analytical. He never quite left behind the mindset of the analytic philosophy student he once was. Wallace’s senior thesis in modal logic was published posthumously. His senior thesis in English became his first published novel, The Broom of the System. He wrote lit for STEM geeks and logic nerds . . . including the many STEM geeks and logic nerds who later ended up in law. (Myself included.)
This week, a Louisiana court became the first federal district court to uphold a state ban on same-sex marriage since the U.S. Supreme Court’s decision in U.S. v. Windsor. Judge Martin Feldman of the Eastern District of Louisiana granted the state’s motion for summary judgment in Robicheaux v. Caldwell. Finding that the claims of same-sex couples did not implicate a fundamental right triggering heightened scrutiny of the state law, he applied rational basis review to the challenge. Judge Feldman rejected arguments that sexual orientation warrants intermediate or heightened scrutiny based on the Supreme Court’s ruling in Windsor, as well as Equal Protection arguments against the Louisiana ban based on sex discrimination.
“Many states have democratically chosen to recognize same-sex marriage,” he writes. “But until recent years, it had no place at all in this nation’s history and tradition. Public attitude might be becoming more diverse, but any right to same-sex marriage is not yet so entrenched as to be fundamental. There is simply no fundamental right, historically or traditionally, to same-sex marriage.”
American attitudes about LGBT people have changed. The fight for same-sex marriage has come far, fast. African Americans, women, disabled people, and members of other disenfranchised groups should envy the speed with which the LGBT community has achieved so much success. Not only have laws changed, but popular moral sensibilities have changed as well. In 2008, opposing marriage equality would put you in the company of most California voters. In 2014, expressing moral opposition to homosexuality can get you in big trouble. You can even face retroactive stigma — Brendan Eich, the former CEO of Mozilla who was ousted in 2014 because of his support of California’s Prop 8 in 2008, can attest to that.
A Sixth Circuit ruling earlier this week is a victory for critics of federal hate crime legislation, as well as the defendants in the case, a group of Amish men and women who forcibly cut the hair and sheared the beards of their Amish victims. The defendants, members of the Bergholz Amish community, admitted to a series of attacks against other Amish with whom the defendants had longstanding feuds. In the Amish community, men wear long beards and women grow long hair as signs of piety and view voluntarily cutting one’s own hair as a sign of contrition. Cutting another person’s hair is a forceful condemnation of the victim. Prosecutors had argued that the defendants assaulted their victims because of their religious identity. The case is the first appellate case involving a religious hate crime brought under The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. The statute prohibits “willfully caus[ing] bodily injury to any person . . . because of the actual or perceived . . . religion . . . of [that] person.”
In one of the instances at issue, Martin and Barbara Miller’s children and their children’s spouses cut Barbara’s hair and sheared Martin’s beard. The children insisted at trial that they attacked their parents to punish them for “bad parenting.” The kids thought Martin and Barbara were cruel, punitive, and spiteful as a father and mother. The kids did not argue that Martin and Barbara’s “bad parenting” justified assaulting them. The kids only argued that they didn’t attack their parents because their parents were Amish, or even because they believed that their parents’ bad parenting was a sign of them being lousy at being Amish. Rather, they attacked their parents because they believed that their parents were lousy at being parents.
Assaulting your parents in a way that is particularly hurtful to their religious values is a good way to make clear that you won’t be attending the next family picnic, but is it a good way to commit a federal hate crime?
In Ferguson, Missouri, outrage over the shooting death of teenager Michael Brown roils on. Attorney General Eric Holder visited Ferguson yesterday, promising Brown’s family and the concerned public that a federal investigation would ensure justice. If Darren Wilson, the white police officer who shot and killed Brown, willfully deprived the young black man of his constitutional rights to be free from unlawful deadly force, Wilson could be convicted under federal civil rights law, in addition to any possible state charges.
Much of the outrage over Brown’s death is rooted in the belief that Wilson responded to Michael Brown as he did because of Brown’s race. The case calls up a painful history of racist white men murdering black men under color of law. I don’t dispute the existence of that history, and I humbly acknowledge that, as a white woman, I will never feel the same pain associated with that history that black men and women will. Even so, I wonder about what in this particular case leads so many observers to conclude that racism obviously caused Wilson to shoot and kill Brown — not simply to conclude that Wilson was unjustified in his use of force for non-race-based reasons, or to be suspicious of the circumstances surrounding the use of force.
How could we distinguish a set of facts where a white police officer improperly kills a black teenager without racial bias from one where a white officer improperly kills a black teenager because of racial bias? Do we have a picture of criminal violence by a white officer against a black teenager that is wrong, but not wrong for any reasons that involve race?
This week, a Texas campaign ad and a Pennsylvania death penalty appeal each illustrate what happens when lawyers lose sight of for what — and whom — they claim to be working.
Wendy Davis, in the final throes of her Texas gubernatorial race against Attorney General Greg Abbott, launched a controversial campaign ad a few days ago. The ad accuses Abbott of “siding with a corporation over a rape victim,” spotlighting a 1998 Supreme Court of Texas case brought by a woman seeking damages from a vacuum manufacturer after a door-to-door salesman of the vacuums allegedly raped her in her home. A background check should have revealed that the man had a criminal history. Abbott was then a justice on the Texas court. He dissented from the majority’s decision in favor of the woman. Davis’s ad ignited heated debate, with even her supporters questioning the propriety of the ad. Abbott’s campaign called the ad “despicable.”
Meanwhile, on the other side of the country, the United States Supreme Court on Monday issued a highly unusual order in a Pennsylvania death penalty case. The Court asked the Pennsylvania Supreme Court Disciplinary Board to investigate and take appropriate actions against Marc Bookman, an attorney who filed a petition for review of Michael Eric Ballard’s death sentence. Ballard slaughtered four people in 2010: his former girlfriend, her father, her grandfather, and a neighbor who tried to help the family when he heard screams coming from the home. Ballard was sentenced to death in 2011. In November 2013, the Pennsylvania Supreme Court upheld the sentence. On June 23 of this year, SCOTUS denied Bookman’s petition to review Ballard’s case, but the Court then ordered Bookman to file additional responses about his relationship to Ballard. Apparently not satisfied by Bookman’s replies, the Court referred the case to the state disciplinary authority.
So, what’s the problem in either of these situations? Why the controversy? And what do they have in common?
The Wisconsin Supreme Court recently issued two rulings upholding 2011 Wisconsin Act 23, a state law requiring voters to present photo identification at polling places. The court ruled that mandating ID does not place a substantial burden on voters, nor does it create an unreasonable regulation on elections. The Seventh Circuit is still considering a challenge to the same law, however. In April, Judge Lynn Adelman of the U.S. District Court for the Eastern District of Wisconsin ruled that the law unduly burdens some voters, particularly low-income ones, and violates the Voting Rights Act. This week, Wisconsin Attorney General J.B. Van Hollen filed motion to lift the injunction created by Judge Adelman’s earlier ruling.
Wisconsin’s court battles reflect the nationwide debate about voter ID laws. Proponents of the laws argue that abuse is rampant, ID laws make a clear statement that corruption is intolerable, and requiring photo identification is a minimal burden.
Opponents of voter ID laws contend that voter fraud is rare, but voter suppression is likely. At the Washington Post, Justin Levitt argues that his extensive, nationwide research of election fraud reveals only 31 incidents since 2000. Levitt points out that more than 1 billion ballots have been cast in that time. Allegations of voter intimidation or suppression are common, though what counts as a criminal offense or civil rights violation may be hard to define. Physical threats obviously count. Jim Crow’s shameful legacy of literacy tests and poll taxes obviously do. Willful disinformation campaigns do. Whether insisting on photo identification, which may be more difficult for people in some communities to provide, counts as voter suppression is a much closer call.
Both sides offer up horror stories. True the Vote trumpets allegations of misconduct on one side, while the NAACP insists that election officials continue to suppress minority votes on the other. Mostly the discourse drops to the level of anecdote. Too often, the deciding factor reduces to which seems more plausible to you personally — that people who shouldn’t vote do, or that people who should don’t?
On Tuesday, the D.C. Circuit ruled against Matt Sissel, the Iowa artist and entrepreneur who challenged the Affordable Care Act’s individual mandate on the grounds that the law violated the U.S. Constitution’s Origination Clause. Article I, § 7, clause 1 requires that “all bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.” Obamacare raises government revenue by billions of dollars, but it was drafted in the Senate. Judge Judith Rogers wrote the opinion in Sissel v. HHS for a panel including two newly minted Obama appointees, Judge Nina Pillard and Judge Robert Wilkins.
This ruling comes in the wake of last week’s dueling decisions in Halbig v. Burwell and King v. Burwell. Another D.C. Circuit panel found that Obamacare subsidies were illegal in the 36 states that refused to set up state healthcare exchanges. On the same day, the Fourth Circuit disagreed. In court battles, Obamacare opponents are winning some and losing some.
Convicted murderer Joseph Wood’s execution began at 1:52 p.m. yesterday. He was pronounced dead at 3:49 p.m., according to a statement from Arizona Attorney General Tom Horne. Some witnesses insist that Wood continued to gasp for air at least 600 times after he was supposedly fully sedated. Others argue that he was merely snoring. Everyone agrees that the lethal injection process took a lot longer than the expected. Death by lethal injection typically occurs within ten minutes or so.
America has grown accustomed to long delays in carrying out the death penalty. Inmates sit on death row for years, even decades. As Chief Judge Alex Kozinski wrote, “Old age, not execution, is the most serious risk factor for inmates at the San Quentin death row.” We may be used to delays before denizens of death row get to the death chamber, but we have only recently started to see delays once an execution has actually begun….
On Tuesday, the U.S. Court of Appeals for the Fifth Circuit released the latest opinion in UT v. Fisher, the ongoing battle over the role of race-based preferences in the University of Texas at Austin’s undergraduate admissions policy. Last year, the U.S. Supreme Court ruled that the Fifth Circuit had failed to apply the proper strict scrutiny standard to its earlier review of UT’s admissions scheme. Justice Anthony Kennedy wrote the court “must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” He cautioned that, if a non-race-discriminatory approach could bring about UT’s stated goal of a “critical mass” of campus diversity, “then the university may not consider race.” The Court remanded the case back to the Fifth Circuit. This week, two of the three judges on the Fifth Circuit panel concluded that the use of race was, indeed, necessary.
Judge Emilio Garza’s dissent (beginning on page 44) criticizes the majority opinion for deferring impermissibly to UT’s claims, despite the Supreme Court’s instruction. He writes, “Although the University has articulated its diversity goal as a ‘critical mass,’ surprisingly, it has failed to define this term in any objective manner.” He later writes, “The majority entirely overlooks the University’s failure to define its ‘critical mass’ objective for the purposes of assessing narrow tailoring. This is the crux of this case — absent a meaningful explanation of its desired ends, the University cannot prove narrow tailoring under its strict scrutiny burden.”
How much diversity is a critical mass of diversity? Is this a unit of measure like a team of oxen or a murder of crows? How can a court possibly determine whether a given policy is necessary to achieve critical mass if we don’t know what that is? UT isn’t exactly the International Bureau of Weights and Measures, but a little bit more precision would be helpful.
The concept of critical mass is problematic for many reasons. Its vagueness provides a poor measure for reviewing courts. It packs in several dubious assumptions about the meaning of race. Here’s one more reason why “critical mass” is such a critical mess . . . .
Earlier this week, several prominent LGBT advocacy groups announced that they would no longer support the proposed Employment Non-Discrimination ACT, known as ENDA. If the U.S. House of Representatives passes ENDA, it would create legal safeguards in the workplace for gay, lesbian, and transgendered employees. The National Gay and Lesbian Task Force Action Fund led the move, with the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, Lambda Legal, the National Center for Lesbian Rights and Transgender Law Center later joining NGLTF’s initial statement. The groups fear that the Supreme Court’s recent decision in Hobby Lobby signals a move toward expansive religious exemptions. Consequently, the groups will now focus their efforts on securing rights for the LGBT community like those provided by Title VII of the Civil Rights Act of 1964 and the Constitution’s Equal Protection Clause.
A few months ago, I wrote about ENDA and why conservative Republicans in the House ought to pass the bill. I pointed to a novel D.C. district court ruling allowing a gay man to move forward with his Title VII employment discrimination claim, based on his status as a homosexual male. I described the differences between Title VII’s religious exemptions for employers and the much broader exemptions provided by ENDA. In my earlier piece, I wrote, “Republican Congress members should think twice about refusing to enact legislation that would provide ENDA’s key protection of religious freedom. If they fail to do so, and the push to expand the scope of Title VII in the courts continues, no such protection will exist.”
Instead of prioritizing religious freedom, social conservatives in Congress have held fast to a strident moral opposition to LGBT rights. Instead of pressing for new, democratically enacted statutory rights, many advocates of LGBT equality will increasingly double-down on judicial re-interpretation of Title VII and the Equal Protection Clause. As each side digs in, the other side digs in deeper. Workable compromises seem fewer….
Professor Joel P. Trachtman has developed a unique, practical guide to help lawyers analyze, argue, and write effectively.
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For most attorneys, time spent managing the books is a necessary evil at best. Yet it is undeniably a crucial aspect of running a successful practice. With that in mind, we invite you to view or download a free webinar by Above the Law and our friends at Clio to learn how to better manage your finances.
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Ed. note: The Asia Chronicles column is authored by Kinney Recruiting. Kinney has made more placements of U.S. associates, counsels and partners in Asia than any other recruiting firm in each of the past seven years. You can reach them by email: firstname.lastname@example.org.
Please note that Evan Jowers and Robert Kinney are still in Hong Kong and will stay FOR THE REMAINDER OF THIS WEEK. We still have a handful of available slots for meetings with our Asia Chronicles fans. If we have not been in touch lately, reach out and let us know when we could meet! There is no need for an agenda at all. Most of our in-person meetings on these trips are with folks who understand that improving a legal practice through lateral hiring is an information-driven process that takes time to handle correctly.
Regarding trends in lateral US associate hiring in Hong Kong, we of course keep much of what we know off of this blog. Based on placement revenue, though, Kinney is having one of our most successful years ever in Asia. We are helping a number of our law firm clients with M&A, fund formation, cap markets, project finance, FCPA and disputes openings. These are very specific needs in many cases, so a conversation with us before jumping in may be helpful. As always, we like to be sure to get the maximum number of interviews per submission, using a well-informed, highly targeted, and selective approach, taking into account short, medium and long-term career aims.
Making a well informed decision during a job search is easier said than done – the information we provide comes from 10 years of being the market leader in US attorney placements at the top tier firms in Asia. There is no substitute for having known a hiring partner since he/she was an associate or for having helped a partner grow his or her practice from zip to zooming, and this is happily where we stand today – with years of background information on just about every relevant person in all the markets we serve, and most especially in Hong Kong/China/Greater Asia. So get in touch and get a download from us this week if we can fit it in, or soon in any case!