American “Justice”: Far Behind the Salem Witch Trials

The Obama Administration’s decision — released the Friday afternoon before Labor Day — that no one will be held accountable for the systematic policy and use of torture would be more nauseating if it were not so predictable.  I cannot add to Lemieux, Serwer, Drum, Sullivan, and Greenwald, and you should read them.

American political culture is at a particularly childish moment.  Our leaders cannot prosecute what they did in our name, and they cannot even acknowledge it.  Oh yes, President Obama did stop the policy, and he deserves credit for that, but it was all part of sweeping things under the rug: let us look to the future, not the past.  After all, looking to the past means looking at something unpalatable, and that is not allowed.  As Richard Hofstadter noted, “American use their history as an excuse for an orgy of self-congratulation.”  If anything, the Republicans are far, far worse: to the extent that they don’t want to sweep this under the rug, it is because they are proud of their crimes.

But it was not always this way.  Edmund Morgan, the world’s greatest living historian, recently published a book of essays entitled American Heroes, a work whose title appears to be the only flawed thing about it.  One (previous unpublished) essay is entitled “The Courage of Gils Cory and Mary Easty.”  Cory and Easty were residents of Salem in the 1690’s, wrongfully accused of witchcraft, and instead of turning states’ evidence and accepting a lesser punishment, they vigorously maintained their innocence, knowing that death would result.  They particularly condemned the use of “spectral evidence,” in which a person could be convicted of witchcraft simply by another person saying that he or she “was being tormented by a specter in the shape of the accused.”  Usually, courts refused to accept this evidence, knowing how unreliable it was.  But so terrorized was Salem by the prospect of witchcraft that the rule book was thrown out.  Cory and Easty, Morgan argues, were two of the most courageous people in American history.

Here is where modern times have truly become shameful.   Morgan relates that “there was another kind of courage displayed in connection with witchcraft trials that would be hard to find a parallel today”:

Five years after the trials, in 1697, the General Court of Massachusetts decided that the trials had sent innocent people to their deaths.  January 15, 1697, was appointed as a day of public fasting in which the people of the colony should ask forgiveness of God for what they had done.  And on that day Samuel Sewall, one of the judges, stood up before the congregation of the church to which he belonged, with bowed head, while the minister read a statement that Sewall had written, begging forgiveness of God and man for the part that he had played in the witchcraft trials, asking that ‘the blame and shame of it’ be placed on him.  On the same day the jury that had sat in the trials published a wirtten expression of their “deep sense of sorrow” for their decisions, “whereby we fear we have been instrumental with others, though ignorantly and unwillingly, to bring upon ourselves the guilt of innocent blood.”

What a moving and noble reaction from a people that was imperfect and knew it.  They could not bring back the dead, but they could restore the victims’ property, they could hold themselves accountable, and they could admit that they were wrong.  And from contemporary America: nothing.  We have instituted Regress in History. 

Morgan writes: “Can any modern people point to a similar willingness to remedy injustice, even after the event?”  In today’s United States, at least, we know the answer.

Sheldon Adelson: A Shande Fur de Goyim

The phrase is Yiddish, and it means “a disgrace in front of the Gentiles.”  Abbie Hoffman famously used it in the Chicago Seven trial to describe the (Jewish) judge.  Whether it was true for the judge is open to question, but right-wing anti-Zionist Sheldon Adelson is working hard to make it apply to him.

Not content with making the Republican Party his wholly-owned subsidiary, Adelson is now trying to prohibit anyone from criticizing him.  He has brought a lawsuit against the  National Jewish Democratic Council for defamation: NJDC repeated a public claim, made by a plaintiff against Adelson, that Adelson approved of prostitution in his gambling properties in Macau, China.  NJDC has struck back, and is not intimidated:

“Referencing mainstream press accounts examining the conduct of a public figure and his business ventures — as we did — is wholly appropriate,” NJDC said in a statement. “Indeed, it is both an American and a Jewish obligation to ask hard questions of powerful individuals like Mr. Adelson, just as it is incumbent upon us to praise his wonderful philanthropic endeavors.”

The statement called Adelson’s lawsuit a “strategic lawsuit against public participation,” or SLAPP, a term used for legal maneuvers aimed not at obtaining justice but silence.

“We know that we were well within our rights, and we will defend ourselves against this SLAPP suit as far and as long as necessary,” NJDC said. “We simply will not be bullied, and we will not be silenced.”

It seems quite absurd that repeating a claim made in a public lawsuit is actionable.  Adelson’s strategy appears to be just to wear down his opponents with litigation fees — a strategy perfected by, among others, the Church of Scientology.

Here’s what will really be interesting — and potentially disgusting.  If a “public figure” sues someone for defamation, then he has to prove that a statement was made with “reckless disregard” for the truth.   While I haven’t seen the complaint, however, I wouldn’t be surprised to see Adelson claim that he is private figure: he’s just a businessman minding his own business, and these terrible awful people have defamed him.  Yes, he has made campaign contributions, and set up his own SuperPAC, but so what?  He is just exercising his First Amendment rights as a citizen.  Surely that can’t make him a public figure.

In other words, someone who has vowed to spend “whatever it takes” to defeat President Obama, has personally bankrolled much of the Gingrich Campaign, and is now spending tens of millions for Mitt Romney (and has personally lobbied Romney to free Jonathan Pollard), in now trying to intimidate and bankrupt his political opponents.  And he will use the First Amendment to avoid all public accountability.  And the Supreme Court will probably buy it.

So yes: that is being a shande fur de goyim.  There are some other Yiddish phrases I could also use to describe Adelson.  But maybe the commenters can come up with them.

By the way: elections matter.

Mobilizing Legal Forces for the Good

Although nonprofit organizations can make a big impact, they tend to have tiny or nonexistent legal teams. Even for the lucky few charities with a lawyer in-house or close by, it’s impossible for one attorney to know enough about all the different areas of law to be able to address all the organization’s needs.  Fortunately, there is plenty of good will in the legal profession for good causes. Pro bono legal services are quite literally yours for the asking. Here’s how.

And here’s more.

The Arizona Immigration Case: Three Key Questions

Under current doctrine, the SB 1070 case came out the right way.  I hate Section 2(B) – the infamous “papers, please” provision – but it isn’t unconstitutional for state officials to enforce federal law (even federal civil law, which includes immigration) and then turn offenders over to federal officials.  Generally speaking, it isn’t an issue, especially in immigration contexts.  Why should state and local law enforcement worry about chasing after federal civil offenders such as, say, tax evaders?  And police departments are morons if they want to risk local cooperation by inquiring about immigration status.  But this is Arizona.

The touchstone is that this case was a “facial” challenge, which under current doctrine means that in order to succeed, plaintiffs have to show essentially no circumstances under which the application of the law would be constitutional.  I think that that standard for facial challenges is terrible, but this group of yahoos isn’t going to revisit it any time soon.

Thus, the new phase is developing an “as-applied” challenge to the law.  That means answering three key questions:

1)  What will the feds do when Arizona cops start presenting them with hundreds of Latinos to incarcerate?  This is an important place to pin down the administration: if and when Arizona police start giving you just immigration suspects, tell them to release them.

2)  What kind of monitoring, both DOJ and private, needs to be done in order to present the as-applied challenge to SB 1070?

3)  What precisely will plaintiffs need to show to enjoin application of Section 2B?  Arizona has something like one-third Latino population.  I would guess that virtually all of the white and Indian population are citizens. (I don’t about Asians.). So if all the people turned over to the feds are Latino, is that good enough?  What if it’s two-thirds?  Will Arizona police need to write specific guidelines?  If they don’t, is that good enough?

This battle is just beginning.

Sauce for the Goose Department: Samuel Alito

From Justice Alito’s angry dissent in the Supreme Court’s decision invalidating general and mandatory life sentences without parole for juvenile murderers:

Nothing in the Constitution supports this arrogation of legislative authority.

That’s right, Sam.  We certainly don’t want to usurp legislative authority.  Oh, no.  So of course we would never dream of invalidating the Affordable Care Act, right?  Right?

A couple of more serious comments:

1)  Alito would no doubt answer that in the health care cases, the issue is whether the federal government has the authority in the first place.  You can’t usurp authority from a government that doesn’t have it.  But that was also the case with the issue of mandatory life-without-parole sentences for juveniles: if the Eighth Amendment applies, then the state government does not have the authority to impose those sentences.  All of which is to say that “judicial activism,” the hobbyhorse that conservatives have used to complain about judicial decisions since Brown v. Board of Education (and yes — they vehemently complained about that one), is essentially a meaningless trope.  For Alito to use it so casually shows that he’s almost as bad a judge as Scalia, which is going some.

2)  Consider just how narrow the Court’s ruling was in this case.  The Court very pointedly did not say that life-without-parole sentences for juveniles are unconstitutional: it said that imposing such sentences as a matter of course, legislatively determined, without any sort of individualized process, is unconstitutional.  All of the murderers that Alito discusses in his opinion can be locked up for the rest of their lives.  They just need to have someone actually determine that they individually merit such a sentence.  This prospect is so offensive to Alito that he decided to read his dissent from the bench.  Cutting 30 million people off of health insurance, however, is just a day at the office.

The Arpaio case: when to come down?

Should Sheriff Joe Arpaio be indicted for abuse of office? No doubt.
Before the election? That’s a harder call.

I’m sympathetic with the idea that Joe Arpaio should have been indicted years ago. Now that Arpaio’s prosecutor sidekick has been disbarred for what the a panel of the Arizona court system found to be “evidence … beyond a reasonable doubt” of “a criminal conspiracy,” the odds that there is enough to convict Shurf Joe have shortened enormously. [ Text of Arizona disbarment findings.] That makes me tend to agree with the four prosecutors who just issued a statement calling on Eric Holder to fish or cut bait.

Still, this isn’t a simple problem. Holder works for Barack Obama. Barack Obama is running for re-election, with Arizona in play. Arpaio is a  pillar of Arizona’s Republican establishment, and just pulled a “birther” stunt – covered as straight news by media outlets that should have known better - which might well have been designed to make an indictment appear to be retaliation.

The day Arpaio is indicted, the Shurf himself, with half of Wingnutistan on his side, is going to start howling about politicized law enforcement. And even his enemies have to admit that, on that topic, Arpaio is an accredited expert.

So if Holder has decided to hold the indictment until after Election Day, is that obviously the wrong call? For all we know, the indictment has already been handed up, and sealed. There’s simply no good timing for this sort of case, but just before an election is probably unusually bad timing.


Nonprofit Corporate Governance: The Board’s Role

In the nonprofit setting, misconceptions about corporate governance abound. Are board members primarily fundraisers? Cheerleaders? A rubber stamp to legitimize the actions and decisions of the executives? Do they run the organization to the extent staff is unable? Are they window-dressing to spruce up the organization’s letterhead? If they are rich or famous, must they attend board meetings? How do they know whether they are doing a good job, or when it is time to go? Despite nonprofit and for-profit corporations’ common ancestry and legal underpinnings, nonprofit corporate governance places heightened demands on trustees: a larger mix of stakeholders, a more complex economic model, and a lack of external accountability. This post, excerpted from Lesley Rosenthal‘s Good Counsel: Meeting the Legal Needs of Nonprofits and originally appearing in the Harvard Corporate Governance Forum, explores how substituting a charitable purpose for shareholders’ interests affects the board’s role.

In organizations of all kinds, good governance starts with the board of directors. The board’s role and legal obligation is to oversee the administration (management) of the organization and ensure that the organization fulfills its mission. Good board members monitor, guide, and enable good management; they do not do it themselves. The board generally has decision-making powers regarding matters of policy, direction, strategy, and governance of the organization.
The board of a well-governed nonprofit organization, like the board of a well-governed profit-making company, will do all of the following:

  • Formulate key corporate policies and strategic goals, focusing both on near-term and longer-term challenges and opportunities.
  • Authorize major transactions or other actions.
  • Oversee matters critical to the health of the organization— not decisions or approvals about specific matters, which is management’s role—but instead those involving fundamental matters such as the viability of its business model, the integrity of its internal systems and controls, and the accuracy of its financial statements.
  • Evaluate and help manage risk.
  • Steward the resources of the organization for the longer run, not just by carefully reviewing annual budgets and evaluating operations but also by encouraging foresight through several budget cycles, considering investments in light of future evolution, and planning for future capital needs.
  • Mentor senior management, provide resources, advice and introductions to help facilitate operations.

Similar to for-profit corporations, the power to control and oversee the management of the affairs and concerns of a nonprofit corporation is set forth in its corporate charter. Generally speaking, state law permits both kinds of corporations to self-direct significant allocations of power and responsibility, and then requires them to follow their own corporate governance and operational policies. The familiar fiduciary duties of care, loyalty, and – sometimes – obedience, undergird these requirements in both sectors.

In a well-governed organization of either the for-profit or nonprofit kind, the board does not permit executives to run and dominate board meetings, set agendas, or determine what information will be provided to board members. Under the leadership of an active and functioning board chair, there is adequate opportunity at board meetings for members to receive and discuss reports from not only the chief executive, but also, as appropriate, directly from other executives, in-house and outside professionals, and independent consultants if necessary. Time should be reserved for executive sessions, at which management should be excluded so that its performance may be fully and freely discussed.

Mission is what distinguishes nonprofits from their for-profit cousins: Nonprofits have missions instead of owners or shareholders. While the prime directive for board members of for-profit organizations is to ensure the highest possible value for owners, by contrast, nonprofit board members’ prime directive is mission fulfillment.

Board independence and board attention are of paramount importance in good nonprofit governance. The independence of the board is key because of the non-distribution constraint – nonprofits exist to serve the public interest, not to benefit owners or other private parties. Business or family relationships between the organization or its executives and a board member or her firm are frowned upon and should be strictly scrutinized under a conflict of interest policy administered by independent directors. Even absent outright business or family relationships, a common shortcoming of nonprofit boards is that they are too small, too insular, or too deferential to the founder or chief executive.

Another frequent error of nonprofit boards is inviting new members because of their marquee name within a certain field of endeavor (e.g., a famous dancer on the board of a dance organization) or their means and inclination to donate, without due consideration to the person’s ability and availability to fulfill fiduciary duties, providing the critical oversight function. The governing body of a nonprofit must be made up entirely of people in a position to govern it—setting the strategic direction of the organization and overseeing management’s execution of the mission. Wealthy or prominent persons— donors, artists, scientists, public officials, and others—with an interest in the organization’s program but lacking the time, availability, or expertise to provide meaningful oversight may serve the organization in a non-fiduciary capacity, such as an honorary or advisory board, donors’ circle, or professional council.

Governance is more complex in charitable nonprofits for a number of reasons. Public charities (501(c)(3) organizations) are intended to serve a public purpose, and the board must bear in mind that broad interest. Depending on its mission, history, and geographic reach, a nonprofit may also have specific stakeholders or different groups of stakeholders, some or all of whom may be represented by categories of board members under the organization’s by-laws. The interests of the organization’s ultimate clients, who may be indigent or otherwise disadvantaged, are another important consideration. The organization’s management and workforce may be paid less than their for-profit peers for similar work – if at all – further complicating the board’s oversight duties. In addition, nonprofit trustees may feel role-strain – or worse – because of real or perceived obligations to interact with, attract – or even be – charitable donors. These additional factors make nonprofit board decision-making arguably a much more complex process than the straightforward mandate of maximizing return.

Moreover, nonprofits’ economic models may be more complex than for-profits’ models, including a dynamic blend of earned revenue (ticket sales for a symphony, fee-for-service billings by a hospital, tuition payments to a university) and contributed income (annual fundraisers, “Friends of” membership groups, end-of-year solicitations, capital campaigns). Wealthier nonprofits with endowments can also count on a stream of revenues from investments. In harsh economic climates, however, there is a high correlation between reduced contributions and weaker investment returns. Compounding the difficulty, hard times on the revenue side often coincide with heightened demand for organizations’ services, particularly social services, increasing expenses and creating cash crunches, trouble balancing budgets, or even persistent deficits. Savvy nonprofits have added “third streams” of revenue to supplement and diversify traditional two sources. Entrepreneurial initiatives may include leveraging real estate or other assets, monetizing treasure troves of intellectual property know-how, or engaging in joint ventures with fellow nonprofits or even commercial entities. In envisioning and evaluating such enterprises, board and management must observe regulatory requirements and consider tax implications. In lean years and in growth years, the board must be deeply engaged in overseeing the organization’s investments, its other sources of revenue and expense, and the planning of new initiatives.

What happens when board members fail? In theory, the mechanism in a for-profit corporation for correcting errant board members is straightforward: if the investors don’t like what the directors are doing, they vote them out of office. But in the absence of investors, nonprofit boards must be self-correcting. No one has ever made a tender offer because a nonprofit was inefficient. Moreover, governmental agencies regulating the sector tend to be small and under-resourced, making it highly unlikely that any but the most obvious misconduct will be detected and corrected from the outside. Unless board members are doing something illegal or are term-limited out of office, they may serve in perpetuity, giving them ultimate power over the organization. In this regard, nonprofit trusteeship is a unique and privileged role.

By a number of measures, nonprofit and for-profit board governance are similar: the board’s oversight role, its decision-making power, its structural place within the organization, and its members’ legal duties. The similarities end, however, where shareholder interest in maximizing returns gives way to mission fulfillment, a multiplicity of stakeholders, more complex business models, and self-accountability rather than external accountability.

What Can the Supreme Court Run?

Not very much, according to Justice Kennedy.  I couldn’t help thinking about the Affordable Care Act cases when reading his opinion for the Court in Florence v. Burlington County, handed down yesterday.  The Court ruled that the Fourth Amendment does not forbid law enforcement from strip searching arrestees even if there is no reason to suspect that they possess contraband, carry disease, or could be violent.  And remember — this is just pursuant to arrest: they obviously can be innocent of the crime charged, as was the petitioner here. 

Any arrestee can be strip-searched for any reason, or for no reason at all.  (Roberts and Alito sensibly warned that they could revisit these holdings, which Kennedy seems to have resisted and which Justice Thomas seems to have rejected).  These searches, explains Justice Breyer in dissent, involve:

a visual inspection of the inmate’s naked body.  This should include the inmate opening his mouth and moving his tongue up and down and from side to side, removing any dentures, running his hands through his hair, allowing his ears to be visually examined, lifting his arms to expose his arm pits, lifting his feet to examine the sole, spreading and/or lifting his testicles to expose the area behind them and bending over and/or spreading the cheeks of his buttocks to expose his anus.  For females, the procedures are simlar except females must, in addition, squat to expose the vagina.

Thes searches include people arrested for outstanding parking tickets, a violator of the dog leash law, women in their menstrual periods, and victims of sexual violence.

Why?  Because Courts can’t run jails:

This case turns in part on the extent to which this Court has sufficient expertise and information in the record to mandate, under the Constitution, the specific limitations and restrictions sought by those who challenge the visual search procedures at issue….

The difficulties of operating a detention center must not be underestimated by the courts…Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face.

So the Court will allow these incredibly invasive searches without any probable cause on the part of police because it cannot run a detention center.  It must defer to local police because it simply lacks the expertise to do anything else.

One might imagine, then, that the Court would pause before disrupting Congress from writing a lengthy and extremely complex health care bill affecting one-sixth of American economy.  The Fourth Amendment commands the Court to supervise “searches and seizures,” but the Constitution does not require the Court to police these sorts of complex socio-economic judgments.  Health care requires perhaps even more expertise than law enforcement.  If the Court can’t write rules for local jails, surely it can’t write rules for the health care system.  Right?



Great Moments in Bad Character Judgment

About a quarter century ago, The New Republic had a contest asking for the record in bad character judgment.  Its own example was someone (perhaps Lincoln Steffens) who had described Stalin as “unassuming.”  It asked whether any of its readers had a better example.  The winner was my friend Gideon Rose, now editor-in-chief of Foreign Affairs: Gideon reported that he had heard Rep. Stephen Solarz of New York, then the chair of the House Foreign Affairs Committee’s East Asia subcommittee, describe North Korean dictator Kim Il Sung as “avuncular.”

Well, now we have a third entry.  From Harvard’s Laurence Tribe, in 2011, on the litigation over the Affordable Care Act:

Given the clear case for the law’s constitutionality, it’s distressing that many assume its fate will be decided by a partisan, closely divided Supreme Court. Justice Antonin Scalia, whom some count as a certain vote against the law, upheld in 2005 Congress’s power to punish those growing marijuana for their own medical use; a ban on homegrown marijuana, he reasoned, might be deemed “necessary and proper” to effectively enforce broader federal regulation of nationwide drug markets. To imagine Justice Scalia would abandon that fundamental understanding of the Constitution’s necessary and proper clause because he was appointed by a Republican president is to insult both his intellect and his integrity.

No one should compare Scalia to Stalin or Kim, but we should consider him insulted.


Revolution From Above

To grasp just how mendacious and incoherent the constitutional argument against the Affordable Care Act is, consider the plaintiffs’ argument today concerning “severability,” that is, whether, if the insurance mandate is struck down, whether the whole Act must be struck down.

The mandate is so intimately tied up in the whole scheme, argued lawyer Paul Clement, that all of the other provisions — community rating, guaranteed issue, the insurance exchanges, risk adjustment, the works — will also have to go.

Now also recall that the supposed argument here is that the mandate exceeds the federal government’s power to regulate “interstate commerce.”  It is not an argument about personal liberty at all: that would be a substantive due process argument, in which the legislature receives enormous deference from the courts.

No one could possibly deny that if the federal government decided to write rules for all insurance companies concerning, say, community rating, guaranteed issue, insurance exchanges, and risk adjustment, that that would constitute regulation of interstate commerce.  That is the quintessential form of regulation of interstate commerce.  And the plaintiffs today have argued that the individual mandate is necessarily bound up with all of these forms of regulations, which is why it cannot be severed.

So here is the conservative argument: something that is necessary for the regulation of interstate commerce is not part of the power to regulate interstate commerce.

This, in short, is a revolution from above.

If the Act falls, it will not be because the Obama Administration did something wrong.  It will not represent a “crisis of liberalism.”  It will not be because the Democratic Party cannot govern.  It will not be cause for any recriminations or hang-wringing.

It will be because five old men have decided that the Constitution does indeed “enact Mr. Herbert Spencer’s Social Statics,” and have decided to force their reactionary views on the rest of the country.

And that is all you need to know.