Congressman John Lewis

The Interview

Congressman John Lewis

By Pete Eikenberry

EikenberryIn May 1963, the infamous Birmingham, Alabama, Public Safety Commissioner Eugene “Bull” Connor ordered police dogs and men with fire hoses to attack civil rights marchers. As a result, President Kennedy gave a televised address in June calling for passage of a civil rights bill. The bill was passed in February 1964. In March 1965, civil rights leaders embarked upon a march from Selma to Montgomery, Alabama. The march was called to dramatize a voter registration drive – and to influence Washington legislators to pass a voting rights bill. The two leaders of the march were Hosea Williams of Dr. King’s Southern Christian Leadership Conference (“SCLC”) and John Lewis of the Student Nonviolent Coordinating Committee (“SNCC.”) Although the SNCC board had voted not to take part in the march, John Lewis chose to participate as an individual.

On May 20, 2014, Rev. Jerome Robinson (who is married to Sheila Boston, a partner in Kaye Scholer) and I interviewed the now 74-year-old long-time Congressman John Lewis in his offices in Washington. I had worked with the late Hosea Williams when I was a civil rights volunteer lawyer in Grenada, Mississippi, in July and August 1966; I wished to talk to Congressman Lewis about Mr. Williams for a writing project I am undertaking. On March 7, 1965, now known as “Bloody Sunday,” John and Hosea led the march across the Edmund Pettus Bridge in Selma in the face of hostile troopers commanded by Sheriff Jim Clark. In May 2014, Mr. Lewis recalled that day to Jerome and me as follows:

On Bloody Sunday, Hosea was so dignified; he was so peaceful and so quiet. At one point, he asked me when we were walking across the bridge crossing Alabama River, can I swim? I said, “Nope, what about you?” He said, “Yes, a little,” and we never said another word to each other; it was just a silent walk until we came on the high point on that bridge and then we looked down below; Hosea said, “You see the guys with the gas masks? John they’re going to gas us.” When we got within “hand” distance, the Major said, “This is an unlawful march, it will not be allowed to continue; I’ll give you two minutes to return to your homes or to your church.” Hosea said, “Major give us a moment to kneel and pray,” but the Major said, “Troopers advance!” Then we saw these guys putting on their gas masks, and they just came at us.

Roy Reed of the Times reported the incident on March 7, 1965, as follows:

About 525 marchers had left Browns Chapel and walked six blocks to Broad Street, then across Pettus Bridge and the Alabama River, where a cold wind cut at their faces and whipped their coats. They were young and old and they carried an assortment of packs, bedrolls and lunch sacks.
The troopers, more than 50 of them, were waiting 300 yards beyond the end of the bridge. Behind and around the troopers were a few dozen possemen, 15 of them on horses, and perhaps 100 white spectators…. The marchers had passed about three dozen more possemen at the other end of the bridge. They were to see more of that group.
The troopers stood shoulder to shoulder in a line across both sides of the divided four-lane highway. They put on gas masks and held their night sticks ready as the marchers approached marching two abreast, slowly and silently. The troopers rushed forward, their blue uniforms and white helmets blurring into a flying wedge as they moved. The wedge moved with such force that it seemed almost to pass over the waiting column instead of through it. The first 10 or 20 marchers were swept to the ground screaming, arms and legs flying, and packs and bags went skittering across the grassy divider strip and on to the pavement on both sides.
***
A cheer went up from the white spectators lining the south side of the highway. The mounted possemen spurred their horses and rode at a run into the retreating mass. The marchers cried out as they crowded together for protection, and the whites on the sideline whooped and cheered…Suddenly there was a report, like a gunshot, and a gray cloud spewed over the troopers and the marchers. “Tear gas!” someone yelled. The cloud began covering the highway. Fifteen or twenty nightsticks could be seen through the gas, flailing at the heads of the marchers.

Among other casualties of March 7, Mr. Lewis suffered a fractured skull, which required his hospitalization for a considerable period of time. On March 9, a Unitarian minister from Boston was beaten to death in Selma. On March 15, President Johnson addressed a joint session of congress calling for passage of a voting rights bill. The Senate adopted the bill on May 25 and the House passed it on July 9 – both by 4-1 majorities. As Andrew Kopkind wrote in the New Republic on March 20, 1965, “Selma’s Sheriff Jim Clark can take much of the credit for the bill not so much, perhaps, as ‘Bull’ Connor takes for passage of the Civil Rights Act of 1964, but a fair sized piece nonetheless.” I said to Mr. Lewis that in 1966 Hosea had told me repeatedly that “Bull Connor was the hero of the Civil Rights movement.” Lewis said that:

President Kennedy was not the first person to say and not the last person to suggest that if we honored people for the contribution they made, that we shouldn’t forget Bull Connor for what he did in 1963, when he let loose the dogs and the water hoses to create the climate, the environment for President Kennedy to come forth and make the speech he made on the night of June 11, 1963. In Hosea’s travels in Alabama and throughout the south and around the country, he said, “We have a man in Birmingham named Bull Connor but he’s no longer a Bull he’s a steer now. Hosea was very, very colorful. He was born in Georgia as you well know, went into the military, came back, studied, and got a job in Savannah where he came under the influence of Dr. King. He became one of the outspoken leaders, some people call him a non-violent “raporizer.” He had the ability, he had the capacity to move a crowd, he loved singing, he loved music, not that he had such a great voice, but he could speak loud and he could sing loud and he was a good organizer. Just the average “Joe,” pulling people off the street, going into a bar, a pool room and said, “Come on, follow Dr. King we got a movement going.” He joined SCLC and became what some people called one of the field hands, one of the individuals that created and moved the crowd or prepared the crowd or prepared the audience for Martin Luther King Jr. to address what some people would say to clean up what Hosea had messed up. When I say mess up, he messed it up in the good sense of the words.

I said to Mr. Lewis, “You said in your book that you rarely did night marches but in Grenada, Hosea led night marches.” Mr. Lewis replied:

Night marches are dangerous. They’re very, very dangerous, so in Nashville we tried doing the sit-ins at lunch time. In 1961 during the stand-ins at theaters, we tried everything possible to have all of our marching, and sit-ins, stand-ups, whatever you want to call it, in open daylight- so you can see. When you have people marching at night, bad things can happen.

I said, “But Hosea wanted to prove that people weren’t afraid; he wanted to show that white people can’t hurt them and to prove that black people should not be afraid. The federal judge required the marchers to go 2 by 2 in squads of 20 in order to award court protection to the marchers. Young women were at the heart of the movement, and when each squad entered the Grenada’s town square, the women’s singing was reinforced and got louder and louder. They sang this song, ‘yahh, yahh, yah, yahdy yah, yahhh’ as the hundreds of whites in the square screamed obscenities and worse restrained by 200 white shirted shot gun wielding state highway patrolman.” Mr. Lewis said:

Hosea had the ability to sort of improvise songs like a lot of people; different participants would just go out in a line and do these little made up songs. I can’t sing; I tell people I sing so low so no one can hear me.

Jerome asked Mr. Lewis how he came to march in Selma, and he replied:

SNCC didn’t want to support the march, and though I was chairman of the organization, I broke with the group after an all-night meeting at a little restaurant in Atlanta. I took the position that I was from Alabama, had been to Selma, and had participated in early organizing and protesting. I had been arrested and gone to jail for that and if local people wanted to march, I’m going to march with them.

Jerome asked, “Did you ask to be head of the line?” He said “No I did not. They drafted me.” I asked, “Did Martin Luther King draft you?” He said:

People like Andy Young because Dr. King was not there that day. They asked me to walk with Hosea because I don’t think they knew about the debate. We were in Atlanta; we stayed up most of that night arguing and debating why we shouldn’t or should; and I then jumped in the car with two other young people from the student non-violent coordinating committee. We got our sleeping bags and we drove to Selma. We got an hour or two of sleep in a so called “Freedom House.”

I got up the next morning, got dressed and went to the Brown Chapel Church and after the service, people started showing up for the march. I was wearing a black trench coat and Hosea was wearing a black trench coat.

I asked, “You had your backpack on or something?” He said “I was wearing a backpack.” I said, “You looked like one of the young people today.” He said, “Mine was not that fashionable …. But Hosea, he was fearless, fearless, fearless. He was strong, not intimidated and it was his mission, it was his calling to get out there and push and pull.” I asked, “Do you think that you arrived at a philosophy of provoking people to violence or you think that sort of happens and it kept happening or you think after a while it became a strategy?” Mr. Lewis said, “No, I don’t think it was a deliberate effort to provoke people to respond with violence but if people were going to be provoked or to respond in that matter, then it was going to help us make our point.”

My own involvement with the civil rights movement in July 1966 followed in time the events of 1963 and 1965 where civil rights marches had led to adoption of civil rights legislation. In June 1966, the Meredith March had come through Grenada, Mississippi and SCLC dropped off 12 organizers including Hosea Williams. They were trying to foment enough activity and response to it to get press coverage that would pressure Congress to enact the 1966 Civil Rights bill. (It would have required juries to be selected at random from voting lists.) In June 1966, Orison Marden, the new president of the ABA and my boss at White & Case, had arranged for me to go to Mississippi at White & Case expense. I spent four weeks full time in Grenada assisting Marion Wright and other NAACP Legal Defense lawyers who were supporting the civil rights demonstrators. Marden spent the summer getting an overwhelming vote from the ABA in support of the bill, but it never passed. During the Meredith March and for a period thereafter, the press focused rather on Stokely Carmichael and the “black power” movement—about which Stokely repeatedly articulated. Stokely at the age of 24 had brought his “slashing black style” as new chair of SNCC replacing the soft spoken John Lewis.

As we left Mr. Lewis in June 2014, I said to him that I felt “so privileged to have been able to participate even in the tiny sliver of time when I was involved,” and he replied that “every day I feel privileged to have participated.” He was very impressive in his humility. Jerome led Mr. Lewis, a staff member, and me in prayer before we took our leave. Mr. Lewis said that we should call upon him or his staff for any help they could give us.

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From the President

From the President

Going Strong: FBC’s Past, Present, and Bright Future

By Robert J. Anello

AnelloEven though our organization was founded by individuals born over a century ago, the Federal Bar Council is as relevant today as it was in the 1920s. The challenge and expectation is that our uniquely collegial professional association will be more relevant still in the years ahead.  The Federal Bar Council, with its growing membership, is up to this challenge.

Our Goals

From its founding over 80 years ago, the Council’s principal goals have remained the same: to recognize and support the efforts of the lawyers and judges who bring their intelligence, integrity, and perseverance to the practice of law and to provide an unparalleled opportunity for members to enhance their talents and develop long-lasting relationships that endure throughout their careers.  Remaining at the forefront of developments in our profession while fostering collegiality is crucial to the Council’s ability to bring out the best in the members of our organization.  The Federal Bar Council was founded on these principles in 1932 when it severed its ties with the Federal Bar Association in protest of the Association’s unwillingness to accept black lawyers into its membership.

Our profession is an especially challenging one.  Aside from the normal technological and competitive innovations faced by every business person, legal practitioners must keep abreast of society’s changing needs and problems and the evolution of case law, statutory developments, and professional and ethical requirements. Even the most seasoned lawyers can never declare that they have completed their professional education.

The Federal Bar Council remains committed today as always to providing top-notch continuing legal education, which is enhanced and focused by the Council’s valuable partnership with the Federal Bench.  Through its dedicated staff – under the new leadership of Executive Director Joan Salzman – the Council will continue to strive to serve and bring together the members of the Second Circuit, to hone their skills, and to improve the practice of law in the federal system.

Because of the way in which the Federal Bar Council fosters its relationship with the bench – by actively attending to the issues that our courts are uniquely in a position to observe and identify – the Council is able to maintain a fresh perspective on our community’s needs.  In recent years, members of the Council have partnered with the judiciary on a number of initiatives to preserve the integrity and history of our courts and to address the needs of the under-represented.  This includes the ranks of pro se plaintiffs, immigrants facing deportation or seeking asylum, and criminal defendants and those who have served their sentences who, along with the judges before whom they appear, have recognized the value that mentoring can have on their re-integration to society.  These joint endeavors by practitioners and judges have been championed by the Council’s committees, most noticeably the Second Circuit Courts Committee, the Public Service Committee, and the Committee on Sentencing and Alternatives to Incarceration.  This type of responsiveness allows the Federal Bar Council to be an active participant in the evolution of practice in the federal courts.

The Council’s Committees

The Council has 15 active committees that explore and act upon a vast array of topics.  Remaining attuned to the interests of the membership is an essential way in which the Council maintains its important role.  Last year, the Council formed the Federal Criminal Practice Committee, which brings together judges, prosecutors, and defense attorneys to improve the federal criminal justice system.
To continue to remain relevant to growing areas of federal practice, the Council currently is looking to add committees that focus on bankruptcy and intellectual property.  Law students increasingly are drawn to the field of intellectual property law as specialty hi-tech companies engage in patent wars over ever more complex intellectual products.  Indeed, the number of patent cases initiated between 1980 and 2012 has grown from less than 1,000 per year to over 5,000.  Since the bankruptcy reforms in 2004 and the Great Recession, the federal bankruptcy practice – always a specialty of its own – has grown in importance to the business community and concomitantly to the federal practitioners who serve that community.

The engagement of young lawyers also is a crucial part of the Council’s work.  Their active involvement is the most important way we maintain our relevance into the future.  The Council is aware that the novice attorneys of today are the seasoned veterans of the next decades.  From our First Decade Committee, veteran lawyers learn from and are inspired by our newer members’ passion and novel approaches to the law.  Through our mentoring initiatives, including our Inn of Court program, less experienced members of the bar benefit from our more seasoned practitioners’ experiences and begin to develop their own professional networks.

Honors and Awards

The Federal Bar Council not only engages the Second Circuit’s legal community with interesting events, publications, and lectures, it understands the importance of recognizing excellence in the practice of law. Using the commemoration of the past leaders in the legal community, the Council identifies and recognizes attorneys and judges who demonstrate outstanding qualities through our various awards: the Emory Buckner Award for Outstanding Public Service, presented at the Thanksgiving Luncheon; the Learned Hand Award for Excellence in Federal Jurisprudence, presented at the Law Day Dinner; and the Whitney North Seymour Award for Outstanding Public Service by a Private Practitioner, presented at the Winter Conference.  The Council will add to this tradition of celebrating the past while honoring the present with the inauguration of the Thurgood Marshall Award for Exceptional Pro Bono Service.  The award’s initial presentation will take place at the Federal Bar Foundation’s 50th Anniversary Celebration this upcoming October.  Not only will this award honor the much lauded career of Thurgood Marshall, but it will do so by focusing on recipients in the early phases of their careers.

We work in a profession where developing our craft is a lifetime endeavor.  To excel, we must stay alert to the changing tides, not just in our field, but in other areas that law touches.  As a proud member of the Federal Bar Council and its president for the past two years, I believe that we have understood and met our challenge.  In the past year, we have had an approximately seven percent net increase in membership.  With our new talent and old hands, I am confident that our organization will remain, as always, at the forefront of collegiality, expertise, and change in the practice of law.

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Meet Our New 
Executive Director: Joan Salzman

From the Editor

Meet Our New 
Executive Director: Joan Salzman

By Bennette D. Kramer

kramerJoan Salzman, the new Executive Director of the Federal Bar Council, started on July 21.  We sat down with her the week before she began and spoke about her background and goals for her tenure at the Council.

A Lawyer

Joan’s background is impressive and varied.  She graduated from high school in Hewlett, New York, where she was valedictorian of her class.  She then went to Yale University and graduated magna cum laude, followed by Harvard Law School.  Joan clerked for the Honorable Jose Cabranes when he was a U.S. District Judge for the District of Connecticut.  She was in private practice from 1983 to 1994 at Hughes Hubbard & Reed and Friedman, Wang & Bleiberg.

Joan began 20 years of public service in 1994 when she joined the City of New York Conflicts of Interest Board, rising from Associate Counsel for Enforcement to Deputy Executive Director and Chief of Enforcement.  At the board, Joan participated in trials and all aspects of litigation and directed and managed all agency litigation.  She also formulated policy and commented on and proposed legislation on ethics and financial disclosure.  Among other responsibilities, Joan prepared annual reports and budgets and taught seminars on ethics and international classes for foreign dignitaries and United Nations personnel.

Salzman PhotoIn 2005, Joan joined the City of New York Office of Administrative Trials and Hearings (“OATH”) as an administrative law judge.  OATH was set up in 1979 to enhance the professionalism of ALJs throughout the city and to be New York City’s central administrative tribunal.  It has the authority to conduct administrative hearings for any agency, board, or commission of the city.  The subject matter covered by OATH involves all aspects of city life, including emergency services, construction, the Human Rights Law, low income housing, police seizure of property, city jails, public health, licensing, land use, taxi service, and metropolitan transit.  Joan was initially an ALJ, but during her two five-year terms at OATH she became deputy commissioner and then supervising administrative law judge.  In addition to her duties as an ALJ presiding over trials and settlement conferences, writing decisions on the merits, and supervising the OATH ALJs, Joan worked with senior management and coordinated the policy and projects of the OATH tribunal.  Joan says that the skills she developed at OATH will come in handy at the Council.  She supervised the other ALJs and managed the judicial work and operations.  OATH provided 75 CLE classes throughout the year, so Joan has plenty of experience in dealing with topics and managing CLE credits.  She believes her experience at OATH will help her manage the Council’s staff and myriad projects.  She is used to multitasking.

Joan hopes to create a welcoming atmosphere for the members.  She is excited about participating in events that bring the bench and bar together, such as the Fall Retreat and the Winter Bench & Bar Conference.  As she is getting to know the Council, Joan will attend as many meetings as she can to meet members and see what they are doing.  Through this process, she will determine how she can best contribute to the mission of the organization.

She wants to promote the mission of the Federal Bar Council and enhance professionalism as she did at OATH, where she oversaw many CLE programs.  She looks forward to working with the program committee to present CLE programs that deal with the federal courts and federal practice.

Joan hopes to foster access-to-justice programs at the Council.  She is very interested in the Public Service Committee and its efforts to provide, in keeping with Second Circuit Chief Judge Robert A. Katzmann’s initiatives, volunteers to represent immigrants in various stages of the immigration process.  She is particularly interested in the opportunity for limited representations by volunteer lawyers in connection with discovery or motions that the immigration project offers.

Joan also would like to join Judge Katzmann’s efforts to make courts more open to those beyond the legal community.  In June, Joan arranged and attended the keynote address by one of the ALJs she has worked with at OATH at the 8th Grade graduation ceremonies at P.S. 169 for children with emotional and learning difficulties.  A number of volunteer tutors, including one of Joan’s friends, work with the children.  The speech was very powerful for the children.  The tutors at P.S. 169 lavish attention on the children, and work with the dedicated staff. Joan recruited the ALJ to give the address in response to a request to identify a speaker who is a judge and who could serve as a role model for the students.  Joan envisions bringing those kids into court or judges into the school to teach the children about the courts.

Joan wants to increase the Council membership by reaching out to law firms and lawyers who have practiced fewer than 10 years.  Following the lead of Council President Anello, she also would like to reach a broader cross-section of practitioners through the formation of new committees focusing on such practice areas as bankruptcy and intellectual property.  Also, she wants to increase diversity in the Council’s membership.

In the next several months, Joan expects to meet board members and work with the president and president-elect of the Council to map out her responsibilities.

We all should welcome Joan to the Council and do whatever we can to make her transition into the organization as smooth as possible.

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Justice Breyer Receives Learned Hand Medal at Law Day Dinner

Developments

Justice Breyer Receives Learned Hand Medal at Law Day Dinner

By James L. Bernard

bernardOn April 30, 2014, the Federal Bar Council held its annual Law Day Dinner and presented the Learned Hand Medal for Excellence in Federal Jurisprudence to U.S. Supreme Court Associate Justice Stephen Gerald Breyer.

In accepting the award, Justice Breyer framed his remarks by asking a question, “Why does Law Day matter?”  He answered the question by asking us all to think about four quotations, from Presidents Jefferson and Lincoln and two from Judge Hand.

Four Quotations

The first was Thomas Jefferson’s opening lines of the Declaration of Independence:  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.  That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”  As Justice Breyer remarked, these two sentences capture every aspect of the American ideal: equality, unalienable rights, and government by the people.

Turning to President Lincoln, Justice Breyer noted that, in a famous letter to Horace Greeley, editor of the New York Tribune, Lincoln wrote:  “If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that.”  Justice Breyer questioned why Lincoln would have made this statement.  He observed that, at the time, America was an experiment like no other.  There was, to President Lincoln, nothing more important than preserving the nation.  When President Lincoln then delivered the Gettysburg Address, he opened, “four score and seven years ago,” not by looking back to the Constitution, which preserved slavery, but to the Declaration of Independence.  And he closed the speech returning to this theme of preserving the nation at all costs, “that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth.”

Justice Breyer observed that Judge Hand, in his Spirit of Liberty speech in 1944, asked the question, “What is the spirit of liberty?” In answering, he began that it “is the spirit which is not too sure that it is right….”  As Justice Breyer observed, that was an unusual answer.  In trying to understand it, Justice Breyer suggested one has to understand the time in which it was said.  Our nation was fighting a war with dictators who were certain of themselves and their cause, Korematsu was working its way up to the Supreme Court, and part of what Judge Hand was saying was that we cannot be too sure the great experiment that is this nation will last unless we maintain it by reaffirming our ideals and never being too self-confident we have all the answers.

In this vein, the speech expresses skepticism of the very institutions Judge Hand spent his life serving: “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts.  These are false hopes; believe me, these are false hopes.  Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.  While it lies there, it needs no constitution, no law, no court to save it.”  Justice Breyer observed that in these words, Judge Hand recognized what others from around the world who visit with Justice Breyer often ask when trying to better understand how to build a successful judicial system, “Why do people do what you say?”  The answer, Justice Breyer remarked, lies in what Judge Hand said in 1944.  Because people believe in it.

Justice Breyer closed his remarks by reminding us, as Judge Hand had done in 1944, that to establish a rule of law, we must communicate not to other lawyers and judges, but to the public why respect for the rule of law, and the spirit of liberty it embodies, is so critically important.

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Foundation to Celebrate Golden Anniversary on October 2

FBC News

Foundation to Celebrate Golden Anniversary on October 2

By Thomas E. Bezanson

xThomas_E_Bezanson.jpg.pagespeed.ic.caOFZ_8GiLMark your calendars and join in the celebration of the Federal Bar Foundation’s Golden Anniversary on October 2 at the historic Alexander Hamilton Custom House at 1 Bowling Green.  Guided Tours of the National Museum of the American Indian and of the Custom House Building will be available from 5:00 to 6:00 p.m., followed by a cocktail reception from 6:00 to 8:00 p.m.

This signal event will inaugurate the Federal Bar Council Thurgood Marshall Award for Exceptional Pro Bono Service, which will be presented to the first honoree, Alan E. Schoenfeld of WilmerHale.  It would be difficult to conceive of a more inspiring name for a pro bono award than that of Thurgood Marshall who, as a litigator, Second Circuit Judge, Solicitor General, and the first African-American Justice of the Supreme Court, championed civil rights and equality under the law for one and all.  The Federal Bar Council will make this significant award annually to those dedicated lawyers who best exemplify a commitment to pro bono legal services within the Second Circuit.  The Thurgood Marshall Award will focus primarily on young lawyers, such as Alan Schoenfeld, to give richly deserved recognition and encouragement for their dedication to pro bono services.

The Custom House presents a fascinating and inviting venue for our celebration.  The U.S. Customs Service, established in 1789, is the oldest federal agency.  On the site of the first Custom House, the Alexander Hamilton Custom House was built in 1900-1907 by the architect Cass Gilbert, who trained at MIT and McKim, Mead and White and who also designed the Woolworth Building and the U.S. Supreme Court.  This beaux arts building displays on its exterior monumental sculptures by Daniel French and in the rotunda murals by New York artist Reginald Marsh.  The National Museum of the American Indian is located on the first three floors and houses exhibits covering 12,000 years of history of indigenous cultures throughout the Americas.

Founded in 1964, the Federal Bar Foundation has established a 50-year record of achievement in serving the Second Circuit legal community’s bench, bar, and public.  Recently, the Foundation was proud to announce that it is funding the Federal Bar Council’s two-year fellowship for the Immigrant Justice Corps, supporting the country’s first fellowship dedicated to meeting the need for high quality legal assistance for immigrants seeking citizenship or fighting deportation.  The Foundation also continues to support the Public Service Committee’s Asylum Representation Program, which screens Immigration Court cases that have been identified as potentially meritorious cases for pro bono representation.  Of course, among other activities, the Foundation remains committed to supporting the CLE programs and conferences of the Federal Bar Council, the U.S. Attorney’s Office’s Student Internship Program, the Federal Courts Visits Program, and the publication early next year of the “Courthouses of the Second Circuit.”

The Foundation’s celebration of its Golden Anniversary promises to be an inspiring and collegial event, and we look forward to seeing you there.

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Jeffrey A. Meyer 
Appointed U.S. District Judge for the District of Connecticut

New Appointments

Jeffrey A. Meyer 
Appointed U.S. District Judge for the District of Connecticut

By James I. Glasser

James GlasserOn February 24, 2014, the Senate confirmed Jeffrey A. Meyer as the 37th U.S. District Judge appointed to serve the District of Connecticut.  At his investiture, Judge Meyer commented on the judicial robes he had just donned. Not only is the robe itself emblematic of the neutrality and impartiality required in judges, but the various robes he wore in the first few months of his tenure were lent to him by judges who preceded him and were meaningful to him in different stages of development as a lawyer. In fact, the robe that his wife, Linda Ross Meyer, placed over his shoulders during the ceremony was worn by the Honorable James L. Oakes, for whom Judge Meyer had clerked after law school.  For Judge Meyer, the robe is a symbol of the deep tradition of the bench and the many important relationships that brought him to, and prepared him for, his new position as a U.S. District Judge.

Judge Meyer’s confirmation marked an important moment in the essential process of filling appointments to the federal bench, which in the recent past had been stymied by Congressional impasse.  Invoking its new cloture rules, the Senate ended a Republican filibuster and proceeded to a confirmation vote with a majority, rather than the previously required supermajority.  The Senate voted 91-2 in favor of Judge Meyer’s confirmation, filling a vacancy that had existed in the understaffed district court since the tragic and untimely death of Hon. Mark R. Kravitz in late 2012.

The Senate was well justified in its expression of confidence in Judge Meyer.

U.S. Senator Richard Blumenthal, who recommended Judge Meyer to President Obama for nomination, celebrated his confirmation, noting that Judge Meyer is “truly a lawyer’s lawyer and a prosecutor’s prosecutor – and now he will be a judge’s judge.” During Judge Meyer’s tenure as an Assistant U.S. Attorney I had the pleasure of working with him.  He habitually was well-prepared and knowledgeable about the applicable law and all relevant facts.  Equally important, Judge Meyer was always scrupulously fair and treated all with respect, including those he was charged with prosecuting.  As the Chief of Appeals, Judge Meyer’s intellect and legal acumen was apparent as he improved the quality of the “red briefs” and conducted moot courts that were both challenging and demanding.  After being prepared for an argument by Judge Meyer, the real thing often seemed like the proverbial “walk in the park.”  His keen intellect and passion for justice and fairness will be evident to all litigants who appear before him.

Background and Education

Born in 1963 in North Tarrytown (now known as Sleepy Hollow), New York, to Edward and Patty Ann Meyer, Judge Meyer was destined for a life in law and public service.  His father, whom Judge Meyer often has called his role model, first took office as a New York assemblyman when Judge Meyer was only seven years old and now is serving his fifth term as a Connecticut state senator.  Judge Meyer credits his father’s life in public service and his role in shaping policy as his reason for choosing a career in law. After 50 years of public service, Judge Meyer’s father announced earlier this year that he will not seek reelection and will be retiring from the state senate.

Judge Meyer received his bachelor’s degree in 1985 from Yale University and his J.D. in 1989 from Yale Law School, where he began his own commitment to public service. While a law student, he counseled homeless clients as a student director of the Yale Law School Homelessness Legal Services Clinic and received the Thomas I. Emerson Prize for his distinguished paper on homelessness in Connecticut, entitled, “Establishing a Right to Shelter: Lessons from Connecticut.”  The city of New Haven awarded Judge Meyer the Elm-Ivy Award in 1989 in recognition for his service to its homeless community.  This is an award that honors those whose efforts strengthen the ties between Yale University and its hometown.  Judge Meyer returned to Yale’s clinical programs in 2010 as a visiting professor of the Yale Law School Supreme Court Advocacy Clinic, through which he has helped represent pro bono clients in more than two dozen matters before the U.S. Supreme Court by petitioning for certiorari, opposing certiorari, crafting merit briefs, and mooting others for arguments before the Court.

Professor Harold Koh, Sterling Professor of Law at Yale Law School, spoke at Judge Meyer’s investiture and described a nearly 30-year friendship that began when Judge Meyer was his student. Professor Koh remarked on Judge Meyer’s brilliance and referred to him as the most accomplished international lawyer serving as an Article III judge today.  He praised Judge Meyer’s commitment to public service, dedication to the less fortunate, fundamental decency and, not least, his boyish good looks – referring to him as “Captain America.” Professor Koh expressed confidence that Judge Meyer’s career in the judiciary will be marked by intellectual rigor, empathy, and fearlessness.

Professional Career

Meyer,JeffreyAfter graduating from Yale Law School in 1989, Meyer served as a law clerk to three federal judges: Hon. James L. Oakes of the Second Circuit, Hon. Donald R. Ross of the Eighth Circuit, and Supreme Court Justice Harry A. Blackmun.  With his stellar academic background and coveted Supreme Court and appellate court clerkships, Judge Meyer could have landed any job.  He elected public service as a staff attorney at Vermont Legal Aid, where he represented clients who were subject to civil commitment proceedings on grounds of mental illness. That early experience stuck with Judge Meyer. In his response to the Senate Judiciary Committee’s nomination questionnaire, Judge Meyer counted among his 10 most significant litigated matters one of his first cases as a staff attorney at Vermont Legal Aid, in which he argued before the Vermont Supreme Court that his client had the right to receive mental health treatment on a voluntary basis rather than have it forced upon him through involuntary civil commitment.  The Vermont Supreme Court sided with Judge Meyer and ruled that once a patient requests voluntary treatment, the state must show that voluntary treatment is not feasible before it may order involuntary treatment.  In re R.L., 657 A.2d 180 (Vt. 1995).  In our discussion, Judge Meyer described his work for Vermont Legal Aid as “a tremendously formative period” because he experienced “what it was like to represent the powerless and because it was humbling losing virtually every case.”  Judge Meyer also commented that it was extremely enlightening to discover and appreciate the role mental health plays in both the legal system and important client interactions.

Following his tenure at Vermont Legal Aid, Judge Meyer spent two years in private practice before returning to public service as an Assistant U.S. Attorney for the District of Connecticut.  During his nine-year tenure at the U.S. Attorney’s office, Judge Meyer prosecuted 12 criminal jury trials and countless others cases ranging from complex environmental crimes, to official corruption, to civil right violations, to wire fraud, to gun and drug cases.  From 2000 to 2004, Judge Meyer served as Appeals Chief for the U.S. Attorney’s Office and argued numerous appeals before the Second Circuit.  Judge Meyer considers a complex money laundering case that he tried with colleague Mark Califano to be among the most significant matters he has litigated.  The case involved a Connecticut family’s laundering of large sums of money generated by a major Florida narcotics trafficker.  Following an 11-week trial, the jury returned guilty verdicts on all counts against all five defendants.  All convictions and sentences were affirmed on appeal.  For his work on the case, Judge Meyer and his colleague were awarded the Department of Justice’s Director’s Award in 1999.
Hugh Keefe, who defended one of the defendants in the money laundering case, said that he and his fellow defense counsel dubbed Judge Meyer “The Computer” during the prosecution.  “During the trial day an esoteric or complex issue of law would arise and two hours after court adjourned we would be copied on a succinct six page memorandum of law authored by Jeff clearly setting out the issue and persuasively presenting the controlling law.  That happened after every trial day.  In addition to besting us daily on the law, Jeff Meyer was terrific in the courtroom. He is the complete package as a litigator and will bring those same tremendous skills with him to the bench.”

Ronald Apter, now assistant general counsel at The Hartford, was a law school classmate and later worked with Judge Meyer for nearly a decade in the U.S. Attorney’s Office.  Apter said if he was going to appear in a case he would want to be before Judge Meyer.  The combination of his intellect, legal, and life experience, and his ability to listen and “hear the parties,” will make him a truly great judge.

Reflecting on his tenure in the U.S. Attorney’s Office, Judge Meyer said that he considers his prosecutorial experience the perfect preparation for his new position.  He specifically mentioned the value of time spent in court and lessons learned from role models in the U.S. Attorney’s office and from the judges of Connecticut’s district court.

Judge Meyer left the U.S. Attorney’s office in 2004 to serve as senior counsel to the U.N.’s global investigation, led by former Federal Reserve Chairman Paul A. Volcker, into fraud and corruption arising from the United Nations Oil-for-Food Program in Iraq.  As senior counsel, Judge Meyer led teams of lawyers investigating poor oversight and investigating and tracking more than $1.5 billion of illegal kickbacks paid to the Iraqi regime.  Judge Meyer was the principal author of the committee’s final reports (totaling more than 2,000 pages), which served as the basis for a book that Judge Meyer later co-authored with Mark Califano concerning the scandal.  When Volcker led a 2007 investigation into the World Bank’s anti-corruption safeguards, he again tapped Judge Meyer to assist in the investigation and to assist in compilation of the panel’s final report.  “Working for the U.N. was a remarkable opportunity to travel the world and to learn about the legal systems of other countries” Judge Meyer declared.  He described his work for Volcker’s commission as “a truly unique investigation into an international body that had been free from self-scrutiny with the regrettable result of exposing shortfalls in its ability to protect itself against significant corruption.”

In 2006, Judge Meyer joined the faculty of Quinnipiac University School of Law in Hamden, Connecticut, where he taught diverse courses including professional ethics, international law, environmental law, and criminal procedure.  In addition to his teaching responsibilities, Judge Meyer supported several student societies and joined students on trips to Nicaragua and Guatemala to organize conferences on human rights, domestic violence, and mediation. These trips reflect Judge Meyer’s continuing interest in South and Central America; he spent a year as a Fulbright Scholar in Ecuador after his college graduation, and is fluent in Spanish.  In 2010, Quinnipiac University awarded Judge Meyer the Excellence in Teaching Award – the university’s most prestigious academic honor.  Upon Judge Meyer’s confirmation, Jennifer Brown, dean of the Quinnipiac University School of Law, said, “Jeff has enriched our curriculum, mentored students, and supported scholarship in ways that have made Quinnipiac a better place.  We are pleased and proud to know that Jeff will bring that same rigor, dedication, and compassion to his work as a federal judge.”

In addition to his other commitments, in 2011 Judge Meyer represented Dr. William A. Petit, Jr., whose wife and two daughters were viciously murdered in a 2007 home invasion in Cheshire, Connecticut.  Representing and advising Dr. Petit on a pro bono basis, Judge Meyer advocated for legislative reform to allow victim impact statements in death penalty cases, and sought to prevent the mid-trial repeal of Connecticut’s death penalty statute.  The Connecticut legislature ultimately repealed Connecticut’s death penalty law, but for future cases only.  The murderers of Dr. Petit’s family still are on death row.  Judge Meyer told me that representing Dr. Petit and sitting through the trials of both defendants in that case gave him tremendous insight into victims of crime and the importance of recognizing victims’ rights in the adjudicative process.

Judge Meyer met his wife Linda while clerking in the Supreme Court; she clerked for Justice Sandra Day O’Connor when he clerked for Justice Blackmun.  Following her clerkship, Professor Linda Meyer taught at Vanderbilt Law School. Since 1994, she has been teaching at Quinnipiac Law School. In addition, Professor Meyer teaches “Western Civilizations,” a college-level course, at Niantic Prison for Women.  Next year, in addition to her law school courses, Professor Meyer will teach a new course at Amherst College in Children’s Literature and the Law.  Judge and Professor Meyer have two children, one in college and the other in high school.  In their precious free time they enjoy hiking, kayaking, playing tennis and being entertained by their dog and cat.

Taking the Bench

Judge Meyer took the oath on February 28, 2014, and has had a full docket from that moment forward.  Indeed, the interview for this article took place while Judge Meyer was simultaneously conducting two trials – a jury trial and a bench trial.  Judge Meyer loves trial work and the give-and-take in the courtroom and looks forward to the challenges.  Judge Meyer commented that the first several months have been “stunningly challenging” but the remarkable generosity of Judges Underhill, Eginton, Fitzsimmons, and Garfinkel, his judicial colleagues in the Bridgeport courthouse who have given freely of their time and counsel, has helped him immeasurably.

Referring back to the symbolic importance of the judicial robes and the judges who were important to him in his formative years as a lawyer, Judge Meyer shared with me and finds no small irony in the fact that he now occupies the chambers of the very first federal judge he ever met, Judge T. F. Gilroy Daly.  Judge Meyer recalled being before Judge Daly while working as a student with Yale Law School’s Homelessness Legal Services Clinic in a matter that resulted in a favorable settlement requiring the government to fund much needed improvements to the blighted Father Panik Village housing project in Bridgeport.  Judge Meyer has come full circle and is now presiding over the courtroom where he began his legal career.

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The Trial of Anthony Burns and the Coming of the Civil War

Legal History

The Trial of Anthony Burns and the Coming of the Civil War

By C. Evan Stewart

C  Evan Stewart Picture Although we do not like to admit it, the Founding Fathers wrote slavery into the U.S. Constitution.  In some places it is somewhat obscure (e.g., Article I, Section 2: “other persons” (i.e., slaves) are to be counted as 3/5ths of a person for purposes of Congressional representation and federal taxation); in others, it is more explicit (e.g., Article IV, Section 2, Clause 3: “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”).  This latter provision came at the insistence of Pierce Butler and Charles Pinckney of South Carolina, who proposed to the Constitutional Convention on August 28, 1787 that a clause be added to require “fugitive slaves and servants be delivered up like animals.”  The following day Butler moved to have the following language added to the Constitution:  “If any person bound to service or labor in any of the United States shall escape into another state, he or she shall not be discharged from such service or labor in consequence of any regulation subsisting in the state to which they escape, but shall be delivered up to the person justly claiming their service or labor.”  The substance and sentiment of Butler’s language ultimately was embodied in Article IV, Section 2, Clause 3.

The Fugitive Slave Acts of 1793 and 1850

Because Article IV, Section 2, Clause 3 provided no enforcement mechanism, Congress passed the Fugitive Slave Act of 1793, which President George Washington signed into law on February 12, 1793.  By that legislation, slave-owners/catchers were allowed into every state and all territories owned by the United Sates, and upon written or oral proof to an official therein, permitted to reclaim their “property.”  The legislation also made it illegal to “knowingly and willingly” interfere with slave-owners/catchers and/or to “harbor or conceal … a fugitive from labor,” with punishment thereof by payment of $500.

The 1793 law was not vigorously enforced in the Northern states, much to the consternation of the staunch advocates of the South’s “Peculiar Institution.”  In fact, many Northern states passed “personal liberty laws,” designed to inhibit federal enforcement of the 1793 law.  In New York, for example, Governor William Henry Seward helped enact numerous protections for fugitive slaves, including a right to a jury trial, a requirement that state lawyers intervene on the fugitive slave’s behalf, and the right of the governor to name agents to go to Southern states to negotiate for and free blacks captured and sold into slavery.

One state’s personal liberty law was litigated up to the U.S. Supreme Court:  Prigg v. Pennsylvania, 41 U.S. 539 (1842).  In Prigg, the Court (via seven separate opinions) struck down Pennsylvania’s statute as unconstitutional, as well as being trumped by the 1793 law under the Supremacy Clause.  At the same time, however, Justice Story’s “majority” opinion observed that states were under no obligation to use any of their own resources to enforce the 1793 law.  To many Southern “Fire-Eaters” that dictum constituted a breach of faith to the South, rendered its “property utterly insecure,” and (at a minimum) violated the “spirit” of the Constitution.  By the late 1840s, according to Senator John Calhoun, “the attempt to recover a slave, in most of the Northern States, cannot now be made without the hazard of insult, heavy pecuniary loss, imprisonment, and even of life itself.”

Those concerns (and the ever-increasing Underground Railroad) led to the Fugitive Slave Act of 1850.  It was part of an omnibus set of bills Senator Henry Clay designed (and Senator Stephen Douglas later skillfully guided through Congress) to deal with the huge swatches of land acquired as a consequence of the Mexican-American War.  As a part of the Compromise of 1850 (which was hailed by many as the “final” answer to controversies over slavery), the Fugitive Slave Act required all law-enforcement offices throughout the country to arrest an alleged runaway slave (failure to do so brought a fine of $1,000); forbade anyone from helping an alleged runaway slave (with punishment of six months in jail and a fine of $1,000); forbade a runaway slave from testifying on his or her own behalf; barred jury trials; and required only that the owner swear under oath as to his ownership of the runaway slave.  Debate over the statute was heated and intense.  In his famous Seventh of March Speech, Senator Daniel Webster – pleading for compromise between the two sections – declared that on the issue of fugitive slaves, “the South is right, and the North is wrong.”  Ultimately, the 1850 Act passed the Senate by a vote of 27-12 (with 20 Senators registering as not voting) and it passed the House by a vote of 109-76 (with 42 Congressmen registering as not voting).  President Millard Fillmore signed the bill into law on September 18, 1850.

Once in place, the 1850 Act played out in various states throughout the North in a way that made Harriet Beecher Stowe’s Uncle Tom’s Cabin chillingly real:  in Ohio, the cases of Margaret Garner, Rosetta Armstead, and George McQuerry; in Syracuse, New York, the case of Jerry Henry; in New York City, the case of Stephen Pembroke; in Wilkes-Barre, Pennsylvania, the case of William Thomas; the “Christiana Massacre” in Southeastern Pennsylvania (three blacks were killed, as well as the white owner-claimant); in Boston, the cases of William and Ellen Craft, Shadrach Minkins, and Thomas Sims.

But none of these incidents was as significant to the fate of the nation as the case of Anthony Burns.

The “Trial” of Anthony Burns

Anthony Burns was a Virginia born slave who, against state law, learned to read and write; he was also a lay minister in his slave community.  Hired out by his master, Charles Suttle, to another man, William Brent, in Richmond, Burns was able to save some money doing odd jobs and ultimately stowed away on a boat to Boston in February of 1854.  After working as a cook and a window cleaner, Burns was able to find a steady job in a clothing store.

Unfortunately, Burns wrote a letter back to one of his brothers, who still was enslaved in Richmond.  Suttle came into possession of the letter and went into state court in Virginia to start the process of recovering his slave.  On May 16, 1854, the Virginia court declared that Suttle had demonstrated “satisfactory proof” that Burns was his slave and was a fugitive.  Suttle and Brent then set sail for Boston to re-claim Suttle’s “property.”

On May 24, 1854, Suttle appeared before Edward Greely Loring, who in addition to being a Massachusetts state probate judge and a Harvard Law School professor, was also a commissioner for the federal district court in Boston.  Faced with the Virginia court determination and Section 10 of the Fugitive Slave Act of 1850 (said determination constituting “full and conclusive evidence of the fact of escape, and that service or labor of the person escaping is due to this party in such record mentioned”), Loring issued an arrest warrant for Burns.  He was apprehended outside his shop and “escorted” by a large group of men to the courthouse.  Brought upstairs to the jury room, Burns was confronted by Suttle and Brent:

Suttle: “How do you do, Mr. Burns?  Why did you run away?
Burns: “I fell asleep on board the vessel where I worked and, before I woke up, she set sail and carried me off.”
Suttle: “Haven’t I always treated you well, Tony?  Haven’t I always given you money when you needed?”
Burns: “You have always given me twelve and one-half cents once a year.”

After this exchange, Suttle and Brent confirmed to the U.S. Marshal that Burns was in fact the fugitive slave they sought.  Burns then was compelled to spend the night in the jury room, with a hearing as to Suttle’s claim on his “property” to take place the following day before Loring.

By the next morning (May 25), news of Burns’ arrest had spread throughout Boston.  Already outraged by Congress’s passing of the Kansas-Nebraska Act on May 22 (which opened up those territories to the possibility of slavery, in violation of the Missouri Compromise of 1820), many prominent abolitionists showed up in Loring’s courtroom, including well-known attorney Richard Henry Dana.  Initially, Burns seemed intent not to put up a fight; but after Dana’s intervention on his behalf and Loring’s advising him of his right to counsel and that he did not have to make any decisions right away, Burns said he would like more time; Loring then declared, “Then you shall have it.”  The hearing date, first set for the next day (May 26), was ultimately re-set for Monday, May 29.
On Friday evening (May 26), a large crowd (between 2,000 and 5,000) gathered in Faneuil Hall to hear protest speeches (e.g., “if [Anthony Burns] leaves the city of Boston, Massachusetts is a conquered state.”) Whipped into a frenzy, several hundred people left Faneuil Hall and headed to the courthouse determined to free Burns.  Using a battering ram, protesters breached the building.  In the melee that ensued, a temporary deputy federal marshal was killed.  Ultimately, the protesters were driven off, with eight men arrested.

After the events of Friday night, Boston’s mayor ordered the state militia to guard the courthouse.  The U.S. Marshal also brought in two separate contingents of Marines to assist. He thereafter sent a telegram to President Franklin Pierce, telling him what had happened, but that 
“[e]verything is quiet now.  The attack was repulsed by my own guard.”  President Pierce’s response:  “Your conduct is approved.  The law must be executed.”

At 11:00 a.m. on May 29, the rendition hearing (i.e., the legal process for judging whether a fugitive slave would be returned to his or her master) began.  Brent was the first witness, testifying first about his knowledge of and experience with Burns in Virginia (inexplicably, he swore he had last seen Burns in Richmond on March 20 – a physical impossibility that opened up an evidentiary door for Burns’ defensive team).  He then was asked to recount the May 24 colloquy between Burns and Suttle.  At that point Burns’ counsel objected, citing Section 6 of the 1850 Act, which prohibited any testimony of an alleged fugitive slave at a rendition hearing.  Suttle’s counsel’s responded that confessions and/or admissions uttered outside a courtroom did not constitute “testimony.” Loring overruled the objection, but noted he might reconsider his decision at a later point.  After Brent related the two mens’ exchange, his account was corroborated by a second man who had been present in the jury room.  Suttle’s counsel thereafter put into evidence the Virginia court determination and then rested.

When it was the defense’s turn, a second lawyer, Charles Ellis, made an incendiary opening argument (“if you send [Burns] hence …, he goes to the  block, to the sugar or cotton plantation [and] to the lash”), attacked the bona fides of the Virginia proceeding under the 1850 Act, and contended that the Massachusetts court was not in a position to give “full faith and credit” to that proceeding (per Article IV, Section I of the Constitution).

The following day (which happened to be the same day President Pierce signed the Kansas-Nebraska Act into law), Ellis resumed his offensive, now re-arguing about the admissibility of the May 24 exchange between Burns and Suttle.  He also contended that to be a “fugitive,” a slave had to intend consciously to escape, and (even assuming the admissibility of the May 24 exchange) the only evidence in the record was that Burns’ escape was inadvertent.  Ellis concluded by making a full, frontal assault upon the constitutionality of the 1850 Act itself (unfortunately, most of his arguments had been previously vetted and rejected by the Massachusetts Supreme Judicial Court in In re Sims, 7 Cush. (61 Mass.) 285 (1851)).

The defense then called William Jones, a free African-American, who testified that he had worked with Burns cleaning windows in early March; this, of course, contradicted a key portion of Brent’s testimony.  Jones’ testimony about Burns being in Boston in early March then was corroborated by eight other witnesses.  Suttle’s lawyer subsequently tried to rebut the testimony regarding Burns’ location with some additional witnesses, but was not very effective.

In their closings, both parties’ counsel made impassioned pleas, repeating many of the same legal points previously argued to Loring.  Suttle’s lawyer, among other things, praised the city of Boston, glad “that order was supreme; that Faneuil Hall, cradle of law and liberty, was closed today against treasonable and insane speech.”  Dana, closing for Burns, appealed to Loring’s better angels:

You recognized, Sir, in the beginning, the presumption of freedom.  Hold to it now, Sir, as to the sheet-anchor of your peace of mind as well as [Burns’] safety.  If you commit a mistake in favor of the man, a pecuniary value, not great, is put at hazard.  If against him, a free man is made a slave forever.  If you have, on the evidence or on the law, the doubt of a reasoning and reasonable mind, an intelligent misgiving, then, Sir, I implore you, in view of cruel character of this law, in view of the dreadful consequences of a mistake, send him not away, with that tormenting doubt on your mind.  It may turn to a torturing certainty.  The eyes of many millions are upon you, Sir.  You are to do an act which will hold its place in the history of America, in the history of the progress of the human race.  May your judgment be for liberty and not for slavery, for happiness and not for wretchedness; for hope and not for despair.

At 9 a.m. on June 1, with Boston under martial law, Loring entered a packed courtroom to read his decision.  Suttle and Brent, however, were not present – they had repaired to the U.S. revenue cutter Morris, which had been sent to Boston to assist in the rendition of Burns (President Pierce had directed the Secretary of War, Jefferson Davis, and officials in Boston that “any expense deemed necessary” be used to enforce the 1850 Act).  Loring dismissed all of the constitutional arguments raised because of the Sims precedent, which bound him (thus, it was not his job, he opined, to strike down a constitutional law that some/many considered “so cruel and wicked”).

Loring then turned to sole issue that remained:  was Burns in fact a fugitive slave.  Acknowledging the “complete and irreconcilable” conflict between witnesses “whose integrity is admitted,” Loring looked instead to Burns’ own words on May 24 and found that they constituted a legal admission that had not been the result of “hope or fear.”  As such, Loring ruled that Burns was the fugitive slave identified by the Virginia court and ordered that he be returned to Suttle.

The Return to Virginia and Bondage

At 2:30 p.m. on that same day, Burns was escorted out of the courthouse on foot by a group of the Boston Lancers, a U.S. Army company of infantrymen, two Marine companies, an artillery group that had a nine pound cannon filled with grapeshot, approximately 100 U.S. Marshals and deputies, and the entire Boston police force.  The streets, which had been closed to traffic for over two hours, were jammed with 50,000 people yelling, among other things, “kidnappers,” as Burns was led to the wharf.  At one point, some of the military were pelted with cayenne pepper, vitriol, and cowitch (an extract from a plant that causes skin rashes and extreme itching).  As the crowd surged forward, a horse was killed by one of the military personnel and an order was given to fire on the crowd.  Thankfully, the order was quickly cancelled and the unruly protestors were pushed back without any fatalities (but with many having sustained severe injuries).

Burns, who was dressed up in elaborate finery given to him by his jailers, finally reached the wharf.  Taken first to a steamer, the John Taylor, he later was transferred to the Morris and the trip to Virginia began.

Back in Richmond, Burns spent four months in a tiny cell, with his hands and feet bound.  Ultimately, he was placed up for auction, where he was sold to David McDaniel, a slave trader from North Carolina.  Once relocated to North Carolina, Burns was identified to a friend of McDaniel’s wife as the slave who had been at the center of the great controversy in Boston.  This news made its way back to Amherst, Massachusetts, where a minster, G.S. Stockwell, thereupon contacted McDaniel about purchasing Burns.  McDaniel was amenable, at a price of $1,300.  Stockwell then reached out to Leonard Grimes, a Boston based minister who had earlier tried to purchase Burns’ freedom during the trial.  This ultimately led to an agreement for the deal to be closed in Baltimore on February 27, 1855.  Not without difficulties along the way, Grimes met McDaniel (with Burns in tow) in Baltimore that day and $1,325 was exchanged (McDaniel demanded an extra $25 for his expenses).  Grimes then left with Burns on a train headed north (but only after having to put up a $1,000 bond to the railroad, which feared liability for transporting a fugitive slave).

Free at last, Burns received a scholarship to study at Oberlin College.  Ultimately, he resumed his religious career, becoming a minister, first in Indiana, and later at a black Baptist Church in Ontario, Canada.  Burns died in 1862, at the age of 28 years old.

Postscripts

•    Three individuals were tried for the May 26 death of the temporary deputy federal marshal at the Boston courthouse.  One man was acquitted; the two others kept getting hung juries.  Ultimately, the federal government got the message that no Boston jury was going to convict any of these individuals and the charges were dropped.

•    At Harvard, Judge Loring (whose Southern law students had vowed to protect him from physical harm) was stripped of his appointment by Harvard’s Board of Overseers.  An effort also was made to remove him from his position as a probate judge (based upon his conduct as a federal commissioner, acting under the authority of the Fugitive Slave Act of 1850).  Richard Henry Dana led the effort to defend Loring, arguing that judicial independence was at stake and that Loring had “been considerate and humane” in executing a law held by Massachusetts’ highest court to be constitutional.  A majority of the Massachusetts legislature’s committee charged with this inquiry, however, ruled that Loring’s handling of Burns’ case had “outrage[d] the sense of the people.”  Both the Massachusetts’ house (by a vote of 206-111) and senate (by a vote of 27-11) voted for removal.  Governor Henry Gardner, however, rejected the legislature’s action.

•    At the same time Governor Gardner was rejecting the legislature’s attack on Loring, that body enacted the most radical personal liberty law of any Northern state (the terms of which ensured that no Southern claimant could ever prevail in a Massachusetts court).  One add-on provision, unmistakably directed at Loring, dictated that no Massachusetts state judge could also serve as a commissioner for the federal courts.  When Loring ignored that provision and continued in both offices, a new initiative was launched to remove him.  The two legislative bodies again voted that Loring had to go; and with new Governor Nathaniel Banks in place, removal was effected on March 19, 1858.  Less than two months later, however, President James Buchanan nominated Loring to the federal Court of Claims, and the Senate approved his nomination on May 6, 1858, by a vote of 27-13.  Loring served on that court until he retired in 1877.

•    Needless to say, people in the South and North tended to react to these events very differently.  With respect to the Burns trial, the Worcester Spy opined:  “[T]he law of God, written in the people’s hearts and the law of man, written in the Constitution, were against the rendition of [Burns] to slavery; but the law of Virginia, sustained by the bayonets of the military… was in favor of it, and of course, everything had to give way before the omnipotent edict of the Slave Power.”  The Richmond Examiner, however, took a different tack:  “[S]uch an execution of the Fugitive  Slave law as that which we witness in Boston is a mockery and an insult[; it must] awaken the South to a sense of its position and the necessity of an independent and exclusive policy…. A few more such victories, and the South is undone.” 
Of Governor Gardener’s refusal to strip Loring of his judicial post, the Worcester Spy wrote that it “detaches him from the support of his own citizens of Massachusetts [and] attaches him to the proslavery citizens of Virginia.”  The Daily South Carolinian, however, praised the governor’s “heroic acts [which] stand out in bold relief [as] a beautiful contrast to the black fanaticism which pervades the body politic of his State”; the Fayetteville Observer added that “we are happy that the authorities in Massachusetts are not all traitors and madmen.”
Of Loring’s ultimate removal in 1858, the Richmond South opined:  “to her eternal disgrace, Massachusetts is the first State in the Confederacy whose Legislature, too cowardly to assert its fancied rights against the national government by secession or otherwise, wreaks its vengeance against the individual sworn to execute the law, and endeavors to set the interests of the man in opposition to his official duty.”  Surprisingly, many house organs of the Republican Party also criticized Loring’s removal.

•    Beyond the media, individuals in the South quickly perceived that the intense furor the Burns case fueled in the North (e.g., the new “personal liberty law” passed by the Massachusetts legislature in 1855) would make enforcing the Fugitive Slave Act of 1850 going forward near impossible, at best; this made the idea of secession much more palatable, even to Union-loving men in the South.  At the same time, the words of Amos Adam Lawrence, a Conscience Whig in Massachusetts, captured the sentiments of many in the North: “We went to bed one night old-fashioned, conservative, compromise Union Whigs & waked up stark mad Abolitionists.”

•    For those who want to know more about Burns and related matters, see A. von Frank, The Trials of Anthony Burns (Harvard 1998); G. Barker, The Imperfect Revolution:  Anthony Burns and the Landscape of Race in Antebellum America (Kent State 2010); E. Maltz, Fugitive Slave on Trial:  The Anthony Burns Case and Abolitionist Outrage (Kansas 2010).  For those interested in the legal issues surrounding the Fugitive Slave laws, see H. Hyman & W. Wiecek, Equal Justice Under Law (Harper & Row 1982); B. Holden-Smith, “Lords of Lash, Loom, and Law:  Justice Story, Slavery, and Prigg v. Pennsylvania,” 78 Cornell Law Review 1086 (1993).

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Reflections on Watergate After 40 Years: Part II

Legal History

Reflections on Watergate After 40 Years: Part II

By Pete Eikenberry

Eikenberry Immediately after the Watergate burglars were arrested and the D.C. police referred the matter to the FBI, the Justice Department became responsible with the FBI as its investigative arm.  The White House responded with a strategy of noncooperation, active obstruction, and outright lies to hamper the FBI’s investigations.  Nixon championed “stonewalling.”  The FBI reported to White House Counsel John Dean, who often sat in on FBI interviews of witnesses.  In interviews with officials from CREEP (the Committee to Reelect the President), its lawyers sat in.  Sixty interviews were conducted at CREEP by FBI investigators, who made assumptions that Attorney General Mitchell and other high officials would not stoop to lying.  Yet many of those interviewed had been counseled to lie.
As the result of the facts revealed in the senate committee’s and the special prosecutor’s investigations, it cannot be disputed that the following illegal activities were conducted out of the Nixon White House or by CREEP, often with the president’s active participation and at least with his acquiescence:

1.    The president misused the IRS to harass people on his “enemies list”;
2.    The president attempted to use the head of the CIA to call off the FBI
        investigations of the Watergate burglary on purported national security
        grounds;
3.    The president encouraged the creation of the “Houston Plan” to open
        mail, do surveillance and infiltrate dissident groups;
4.    The president instructed his staff to “stonewall” the Watergate burglary
        investigations by the FBI, the independent prosecutor, and the congressional
        committees;
5.    The president blocked compliance with congressional subpoenas; and
6.    The president made or authorized misleading statements to the public.

Dean has just published his third book, The Nixon Defense: What He Knew and When He Knew It, with a near complete transcription of the Watergate tapes, more than doubling the number of conversations previously transcribed.  On July 28 of this year, in reviewing Dean’s book and depicting the era, Times reporter Robert Dallek wrote that former President Ford and many commentators “… considered Watergate the worst threat to America’s democratic institutions since the Civil War.…” Dallek further wrote:

Watergate was an attempt to shape a presidential election by other than constitutional means, violating the most sacred of American institutions going back to the start of the Republic: the elevation of someone to the presidency by popular choice.

In his book, Dean quoted a Joseph Kraft column from the 1970s that had been published in the Washington Post: “The president and his campaign manager have set a tone that positively encourages dirty work by low-level operators” and Nixon had a “special tolerance” for “using unethical means for partisan purposes” and for bending “the law for political advantage.”

John Dean’s Role

Dean was promoted from a deputy to Attorney General Mitchell to White House Counsel at age 31.  Dean drove a Porsche sports car and was a flashy dresser with Gucci loafers.  As counsel, Dean was asked to advise Nixon on personal matters such as estate planning and he performed conflicts of interest reviews of situations affecting White House staff members – for whom he also did immigration and divorce work.  Although he crossed the line to commit multiple felonious acts in being a loyal soldier to his commander-in-chief, Dean began to have questions about what was going on around him and reviewed the federal criminal code.

As early as April 8, 1973, less than seven months after Dean had assured President Nixon that nothing would come out to harm him before the ’72 election, Dean had retained a criminal lawyer and was meeting with prosecutors.  After the meetings, he testified before Wright Patman’s senate committee for seven hours wherein he described the roles of the various White House and CREEP officials in the Watergate cover-up and details of the incidents of misconduct.  For instance, he described cash payoffs to Watergate burglars to keep them quiet and gave detailed recitations of conferences at the White House in which President Nixon had participated.  As a team player, Dean was corrupted by the circumstances of the power of the White House.  As a witness, Dean was prodigious in his memory and precise in his recitation of detail.  Dean revealed that President Nixon had stated that a particular conversation was taped and urged the committee to obtain the tape if indeed such a tape existed.

The Tapes Are Revealed

But for Dean surmising at a senate hearing that conversations in the Oval Office might have been taped, the truth may never have been known and Nixon may have ridden out the controversy.  After Dean’s testimony, the senate staffers repeatedly asked interviewees about whether conversations were taped.  On July 13, 1973, Alexander Butterfield, a former aide of Chief of Staff H.R. Haldeman, confirmed the existence of the tapes.  Thereafter, the senate committee and Special Prosecutor Archibald Cox subpoenaed the tapes.  Although a court ruling by federal Judge John Sirica denied enforceability of the senate’s subpoena, Judge Sirica ordered the tapes produced to Cox – a ruling that was largely affirmed on appeal by the D.C. Court of Appeals.

Nixon’s Continued Resistance

President Nixon’s lawyer promised Judge Sirica that Nixon would follow the law as to any order regarding the tapes.  However, Nixon attempted to moot the court order to produce the tapes by having the special prosecutor fired.  In events thereafter depicted as the “Saturday night massacre,” Attorney General Richardson and his first deputy William Ruckelshaus resigned rather than carry out Nixon’s mandate to fire Cox.  Subsequently, Solicitor General Bork – third in line at the Justice Department – fired Cox.  Richardson and Ruckelshaus had urged Bork not to resign so as to give the Justice Department continuity of leadership in those difficult times.  Bork did fold the Special Prosecutor’s role into the Justice Department – but the Special Prosecutor’s staff and files stayed intact with the mission unimpeded.  Nixon, in thus seeking to shield the tapes from discovery, created a public relations nightmare and gained no ground.

The Truth Comes Out

The truth came out to prosecutors and Senate committee staff after Judge Sirica imposed long conditional sentences for Watergate burglars and others who ended up before him to coerce their cooperation.  John Doar’s detailed recitation to the members of the house Judiciary Committee of “statements of information” with citation to the relevant White House tapes led to three articles of impeachment adopted by a vote of 27-11. The president had no option to stay in office and was permitted to resign. He was pardoned by successor President Ford.  The house committee’s non-partisan vote and President Ford’s pardon helped avoid partisan turmoil.  The resignation led to general acceptance by the public of the process as a legitimate transfer of power from a president who had corrupted the office of president by his self-protective lies and illegitimate obstructions.

Some Conclusions

Bork apparently got a “bum rap” in being criticized for agreeing to dismiss Cox – since the prosecution was carried out without a hitch under Bork’s overall administration.  I give Bork an unequivocal pass.

Dean was a young man corrupted by the power of the president.  Probably there have been more than a few young associates who failed to stand up in less than ethical situations before them after being coerced by firm partners with substantially less power.  Dean has made it his life’s work to reveal as much as he can about what happened during his tenure as presidential counsel, has counseled stricter ethical standards for lawyers and has repeatedly attempted to proactively compensate for his misconduct.  I give him a conditional pass for utilizing his life to be a force for good after having paid his debt to society.

Whether Judge Sirica overstepped his constitutional bounds in coercing Watergate burglars and others to cooperate is a fair question for scholars.  Yet all judges are human beings, permitted to use their discretion in the circumstances of each case, with the remedy of appeal and impeachment available for overstepping. Judge Sirica exercised his discretion to discover the truth about circumstances of how presidential power was abused and corrupted to benefit the political ends of Nixon and his colleagues.  I give Judge Sirica a conditional pass for doing what he thought was right under the circumstances.  Presumably, if he had engaged in a pattern of repeated coercion in other matters as well, he would have experienced numerous reversals and sharp criticism by the D.C. Court of Appeals.

It is clear that ethical standards especially as to conflicts of interest have been clarified and strengthened after so many lawyers fell in line with President Nixon without seemingly being aware that their loyalty ran to the office of the president, not to President Nixon.  I find the question of whether more women in the White House would have made a difference unanswerable; many of the lawyers who have stood up on questions of torture, indefinite imprisonment in Guantanamo, or government “Big Brothers” activities have been women. The lack of women lawyers at the White House from 1972 to 1974 does not seem to be the crucial ingredient which, if it had been remedied, could have prevented Watergate.

The Supreme Court’s Decision

U.S. vs. Nixon established the precedent that a president’s claim of confidentiality could be “constitutionally based.”  However, the Court found that where a claim of presidential privilege was based “solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.”  The Court found that separation of powers justified a “presumptive privilege” but a wholesale claim to privilege would “upset the constitutional balance” and “gravely impair” the independent role of the judiciary.  The Court cited to “rule of law” and “due process” concepts to conclude that “the generalized assertion for privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”  The Court required the tapes to be produced for “in-camera inspection.”  The Nixon litigation resulted in an important constitutional precedent for the assertion of executive privilege by a president – but one that did not help that president.

Why Did Impeachment Force Nixon to Resign?

In the history of the United States, impeachment is not time honored, and there is very little precedent for this extreme remedy.  The proceedings against President Nixon were remarkably effective, with a 27-11 bipartisan vote in the Judiciary Committee recommending three articles of impeachment for adoption by the full house.  Perhaps the impeachment would never have been seriously considered had not Spiro Agnew been indicted for corruption and forced to resign on October 10, 1973.  Had Agnew been available to serve as president, presumably there would have been very little political appetite to pursue impeachment.

Once Dean hinted of tapes leading to the presence of tapes being revealed and the courts required the tapes to be produced, the evidence against Nixon became overwhelming.  The careful and non-inflammatory lawyering by John Doar and Special Counsels Archibald Cox and Leon Jaworski led to general bipartisan acceptance of the evidence.   Judge Sirica’s conditional sentences led to a parade of witnesses who made telling revelations of White House misconduct.  All of these circumstances together resulted in a perfect storm that made impeachment not only palatable but inevitable.  Nixon had no alternative but to resign and a precedent was set for some measureable limitation on the power of a president.  If not self-evident before, the president now is demonstrably not above the law.

Conclusion

The splendid bipartisan aura that led to a generally non-disruptive transfer of power from a corrupt sitting president may well be unmatched for decades.  Lawyers, judges, legislators, and journalists and all who participated are to be commended.

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Confessions of a 
Digital Curmudgeon

Technology Corner

Confessions of a 
Digital Curmudgeon

By Steven M. Edwards

edwardsI don’t want to sound like I’m out of touch, but there are certain things about the digital age that just don’t appeal to me.

Take selfies.  I don’t understand why people want to take pictures of themselves.  When others take pictures of me, they are never accurate.  Instead of being tall and thin with a full head of hair, I appear in photographs to be somewhat short and stout, with hardly any hair at all.  If the pictures that others take of me are so bad, even when they are taken by professional photographers, I can’t imagine how much worse they would be if I were to venture into the self-made world of selfies.  I prefer the picture that I have of myself in my mind’s eye.  I feel better about myself that way; more self-confident.  If I had to confront the selfie-me every day, I might just stay home.  With a self-image of someone like Gregory Peck, I can go out into the world and walk and talk like Gregory Peck – self-assured, urbane, smooth, and really cool.

Blogs

I also don’t understand why people are interested in blogs and other services that express frank opinions of them on the Internet.  I, for one, have never Googled myself.  I don’t want to know what everyone thinks of me.  I know what I think of me, and that’s good enough.  What others think of me will either be (1) consistent with what I think or (2) contrary to my opinion.  If they are consistent, I will not learn anything by Googling myself.  If they are different, I will be tempted to change who I am.  I don’t want to change who I am.  I have spent a lifetime developing my own, unique Jeffersonian personality.  I’m not going to change my personality the way someone might change a product as a result of test marketing.  I have always followed the credo of that great American philosopher, Davy Crockett (or was it Fess Parker): “Be sure you’re right and then go ahead.”  As a result, I have often disagreed with others and gone my own way, and more often than not I have been right (although I don’t have many friends).  If you followed the herd, you might have been in favor of burning people at the stake or owning other human beings in another era.  Things like that are probably going on today; most of us just don’t know what they are.  I would like to think that I would be capable of saying, no, this is wrong.  I fear that as a result of the intense personal scrutiny that people receive on the Internet, we are all going to evolve into the same person someday.  That would be bad.

Another thing that bugs me about the Internet is the number of ways that exist for receiving information.  There is email, Facebook, Twitter, LinkedIn, Instagram and probably others that only people under 40 know about.  I like getting lots of information, but it would be nice to receive it through one pipeline.  I barely have time to get through my emails each day, so I have foresworn other forms of digital communication.  I don’t want people to be able to claim that they have put me on notice of something by tweeting it.

I recall fondly the good old days when you arrived at the office and there might be five or six memoranda in your inbox.  They were usually prepared with care, and I always read them with care.  I might even prepare a response, but only if I had something important to say – as opposed to “thanks” or “up yours too.”  I would formulate my thoughts carefully and read my  memo over several times to make sure there were no typos and the grammar was correct.  I would try to say something insightful or profound, conscious of the possibility that what I wrote could become part of a historical record that someone, someday might look at to determine whether my colleagues and I were serious people or totally insane.  And after I finished writing this memo, I still had many hours left in the day that I could devote to research, writing, or talking to people about interesting subjects.  Think of that, a conversation – how quaint.

Emails

In the digital age, I sometimes find myself having spent the entire day reading hundreds of emails and having nothing to show for it.  Not only is that bad for the soul, it is bad for billing.  How can you charge a client hundreds of dollars an hour when the description on the bill is simply “reading emails”?  On a big case there can be more than 100 lawyers on an e-mail list, each of whom feels compelled to say something in response to whatever has been said before.  A conversation can go on for an entire day and end with the conclusion “never mind,” but all of the back and forth may end up on the clients’ bills.  I don’t necessarily think this should be avoided.  Just as an infinite number of monkeys with an infinite number of word processors can create Shakespeare, a healthy interchange can lead to enlightenment.   But I sympathize with clients that are frustrated by the process – unless they, of course, are the ones who initiate or perpetuate the exchange.

Another problem I have with the digital age is that half of the time the damn things don’t work.  I can’t begin to tell you how many times I have encountered the phenomenon where everything seems to be going fine but the IT department has made a change or an upgrade and suddenly the system becomes dysfunctional.  The explanation is often that an important bell or whistle has been added, but that often makes no difference to me because I didn’t use most of the functions that previously were available..  All I need is on, off, the ability to receive emails and the ability to type and send emails.  Note that I did not include delete in this list.  I hate to delete things because I never know what is going to be important in the future.  As a result, I have a computer with a super large memory and a program that archives my emails in a chronological order.  I got this system after my assistant caught me punching my computer because it was too slow.  She was coming into my office as I was performing this act and said: “Did you just do what I think you did.”  After rejecting a series of lame excuses – such as “I was taking off my glasses and my hand slipped” – she decided I needed help, of the digital kind.  Now I have all my emails in chronological order going back to 2004, and it’s amazingly easy to find things.  The only exception is emails that have been put in folders; I have difficulty finding them because I can never remember the name of the folder.

You might ask what about ads and junk-mail – but I don’t delete them either.  I find it’s easier to click to the next e-mail than to take the time to decide whether to delete and to press the delete button.  Recently, my IT department implemented a new system where suspected junk-mail is kept in a holding pen, and I must read a description of the item and then decide whether it should be released or embargoed forever.  This process takes me a lot longer than the previous process, and it doesn’t work on my BlackBerry.  As a result of this innovation, I now have to spend more time in the office each day just to get through all of my emails.

I could finish my emails at home, but that presents other problems.  When I click on Internet Explorer, I am often told that this page cannot be found.  That means my router is not working.  I don’t know how to fix a router, but I have learned that it may work if I unplug it and plug it back in.  The means I have to find the plug, but my wife has taught me how to do that.  Now I can solve the router problem in less than five minutes and move on to the challenge of remotely accessing my system.  This requires me to find an access code on my BlackBerry, which can be problematic if my BlackBerry has run out of juice.  Charging up the BlackBerry may take a few more minutes, but once that’s done and I have the secret code, I am ready to roll – unless, of course, a screen pops up and I have to do something else.  For example, my firewall could be out of date, my printer could be out of ink, or I may need an upgrade.  If I press no or cancel, I may not be able to go on to the next step.   If I press yes, my system may crash completely.  It’s hard to know which one is right.  I once installed a new version of Windows, only to find that it was incompatible with something my firm was running.  It took several hours, with the assistance of a help desk, to “de-install” that upgrade.  Most of the time, however, I can usually get on the system in about 15 minutes and read my emails, although that is difficult because the glass on my screen is cracked in several places, a victim of my hand slipping again.

Apple and Microsoft

I thought one solution might be to buy an iPad, but this created more problems than it solved.  My work computer uses Microsoft and the iPad is an Apple product.  Guess what?  They don’t always talk to each other.  People will send me track-changes on a Word document, but I can’t see them because they don’t show up on iPad.  I once went through a whole trial and couldn’t understand why my co-counsel never made any of the changes I suggested to the briefs we were filing.  We eventually realized that I was typing on a PC and he was using an iPad.  I guess the good news is we won the case.  Maybe we would have lost if he had incorporated the changes I was suggesting.

I hope to solve many of my computer problems this fall by getting an iPhone.  I have been warned, however, that I may have trouble because my fingers are too fat for typing on the iPhone.

Another problem with cell phones is they tend to run out of juice.  I was recently on my way to meet my wife and friends for dinner but forgot the name and address of the restaurant.   I couldn’t call because my phone had run out of juice.  I had to go back to the office to look up the address on my computer because there are no pay phones anymore.  As a result, I was a half-hour late for dinner.  It turned out that the restaurant we were supposed to meet at was too crowded, so my wife and friends went elsewhere.   I had no idea where they were and no way of reaching them.  I was about to give up when I spotted a friend in the restaurant and asked to use his iPhone.  I called my wife and found the new location, but that happy ending begs the question:  Why does the advent of iPhones mean we can’t have pay phones anymore?  Did Steve Jobs buy up all the pay phones right before he died?  Being without juice is like being dead.  You can’t communicate with anyone.  To be alive, you need a phone with a charge.   I have juice, therefore I am (take that Descartes, you aging hippie).

Confidential Communications

I am also a little nervous about an iPhone because I wonder how I can whisper something furtively into the mouthpiece without strangers eavesdropping on my conversation.  I still have an old fashioned flip phone, and when I want to tell someone something in secret I can cup my hand over the mouthpiece and have a confidential conversation – maybe even communicate something that’s privileged.  Will that be impossible when I have an iPhone?  Perhaps.  Perhaps I can get rich by inventing a designer cover that runs from a person’s mouth to the iPhone.  It can be called, fittingly, the mouthpiece.

But maybe soon there will be no need for privileged telephone conversations.  Maybe there will be no need for lawyers either.  We can all be replaced by computers.  If we are all taking selfies so we look the same, and we modify our behavior so the blogs like us, and we don’t have time to think or read or write, and we can’t have confidential conversations with our clients anymore, there is no reason we can’t be replaced by computers.  You might ask whether computers can give clients sound legal advice, but clients can be replaced by computers too.  No one will know the difference.

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Jurisdiction in New York Courts

Litigation Practice

Jurisdiction in New York Courts

By Brian J. Farrar

Farrar photoIn the wake of a closely-watched U.S. Supreme Court decision earlier this year that curtailed general personal jurisdiction over foreign corporations, the New York State legislature is considering a bill which would require foreign corporations to explicitly consent to general jurisdiction, as a condition of doing business in the State.

In Daimler AG v. Bauman, 571 U.S. ___ (2014), the Justices considered whether a court can exercise general jurisdiction over a foreign company, based on the fact that a subsidiary of the defendant parent company has ties to the forum state. In a unanimous decision, Justice Ginsburg held that due process requires more than simply a corporate presence in the forum state in order for general jurisdiction to be asserted.

The plaintiffs in Bauman were employees and relatives of employees who worked at a manufacturing plant in Argentina for a subsidiary of DaimlerChrysler, a German-based corporation. The plaintiffs filed suit in California against the parent company, alleging human-rights violations under the Torture Victims Protection Act of 1991. The district court dismissed the complaint, holding that Daimler did not have enough contacts within the state to warrant a California court exercising jurisdiction. The U.S. Court of Appeals for the Ninth Circuit reversed, holding that jurisdiction can be asserted over a multinational company, such as Daimler, that has business contacts in the state and the means to litigate in that location. Considering the absence of any California connection to the alleged violations, perpetrators, or victims at issue in the complaint, the Supreme Court held that “subjecting Daimler to the general jurisdiction of courts in California would not accord with the fair play and substantial justice due process demands.” (Internal quotations omitted).

A New Bill

Concerned with the impact this decision may have on state courts’ ability to exercise jurisdiction over foreign corporations, proposed legislation has been introduced in New York at the request of the Office of Court Administration that would amend the New York State Civil Practice Law & Rules (“CPLR”) and the Business Corporation Law (“BCL”), among others, to require foreign corporations doing business in New York to consent to general jurisdiction. For example, the Senate version of the bill, known as S.7078, and the Assembly version, known as A.9576, would amended Section 1301 of the BCL by adding the following paragraph:

(E) A FOREIGN CORPORATION’S APPLICATION FOR AUTHORITY TO DO BUSINESS IN THIS STATE, WHENEVER FILED, CONSTITUTES CONSENT TO THE JURISDICTION OF THE COURTS OF THIS STATE FOR ALL ACTIONS AGAINST SUCH CORPORATION.  A SURRENDER OF SUCH APPLICATION SHALL CONSTITUTE A WITHDRAWAL OF CONSENT TO JURISDICTION.

The bill further states that 
“[a]uthorized foreign corporations not wishing to continue their consent to jurisdiction may, of course, surrender their authority to do business in New York at any time.”

Senate 7078 made it out of the Senate Judiciary Committee but the legislative session came to a close before the bill was brought to the Senate floor for a vote. Senator John J. Bonacic, who introduced the bill in the Senate, plans to reintroduce it in the upcoming legislative session and push for its passage. If this legislation passes, it could have a large impact on federal litigation and attorneys who counsel corporations are taking notice.

Robert T. Szyba of Seyfarth Shaw LLP, who regularly defends employers in employment litigation venued in New York courts, observes that, “Essentially, foreign corporations will be consenting to jurisdiction in New York for cases otherwise having little or no connection to the forum, since under current law New York would already have jurisdiction in cases having the requisite connection. This exposes these corporations to suit in New York in cases where the facts might be far removed from New York, and exposes New York courts to disputes under foreign laws.”

A Constitutional Question?

If this bill becomes law, a question remains as to whether it can withstand a constitutional challenge in light of the due process considerations raised in Bauman. However, if it passes and survives a challenge, the full impact of this legislation on foreign corporations and New York courts remains a wide-open question.

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