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by Anthony Paul Farley what is a hoodie? hooded sweatshirts are very warm.  i am almost always freezing.  in fact, i've been cold ever since my childhood trek from jamaica to tanzania to puerto rico to libya to upstate, ny, america's cold northeast shoulder, roundabout age seven.  i have a lot of sweatshirts.  the current one says, "obama 2012," the early ones, from the 70's, 80's and 90's, say, "brockport high school," "university of virginia" or "harvard."  all of this leads to my question: is a hooded sweatshirt the same as a "hoodie?"

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law Over at TheGrio.com Joy-Ann Reid does a take on the Harvard video that may be of interest.  The attacks on Derrick Bell gnaw.  I am tired by the well oiled dissing machines instrumentalization of all things without a sense of propriety (“One shouldn’t speak ill of the dead.”). I never was taught by Derrick Bell (he was at Oregon at the time I was at HLS), but, like many, found his work thought-provoking  (“And We Are Not Saved” in particular) and cause for despair as one gazes into the abyss side of the black experience in America.

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law On March 7, 2012, Politico reported in  "Detainee deaths prosecutor backs secrecy of CIA Files,"(available at http://www.politico.com/blogs/under-the-radar/2012/03/detaineeabuse-prosecutor-backs-secrecy-of-cia-files-116732.html) that John Durham, the Justice Department prosecutor tasked with conducting the investigation  and prosecution of CIA persons with regard to two detainees who were allegedly tortured overseas while in CIA hands during the Bush Administration, preferred certain CIA Inspector General reports be kept secret so as to not compromise his ongoing investigations. In 2008, SALT had worked assiduously to get a prosecutor appointed and received a letter in January 2009 from the office of then Attorney General Michael Mukasey advising of the appointment of John Durham to examine the "torture tape destruction" facts that had come to light.  Later on, Attorney General Eric Holder expanded Durham's remit beyond the torture tapes to focus on cases of unauthorized interrogation techniques done overseas by the CIA.  This remit, of course, severely limited cases to be investigated because it did not call into question the actions of the lawyers providing legal memoranda and the actions done pursuant to those legal memoranda that we have come to know as the torture memos.

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law I just checked the schedule and saw that the oral arguments for the Affordable Care Act challenges are the week of March 26, 2012.  All of a sudden, much of what appeared to be craziness made sense.  No doubt this is obvious to others, but in case it is not obvious I thought I would try to put this down. I have heard some pundits wonder why there is such an attack on women’s right to control their bodies right now.  We see the efforts in states to place burdens on abortion such as we have seen in Virginia stoking the flames of the abortion battles.  We see the efforts to defund Planned Parenthood and limit access to it in other states and at the federal  level.  We also see the recently defeated amendment to the highway transportation  bill introduced by Senator Roy Blunt seeking an exemption to the Affordable Care Act for institutions and corporations who object on religious or moral grounds to providing such a service, with emphasis on contraception on those supporters of the Blunt amendment  and emphasis on protecting women’s reproductive health rights for those opposing the Blunt amendment.  I have noted the strident tone of Rick Santorum on rejecting the JFK vision on separation of church and state, religion’s role in the public square, and opposition to contraception and a similar emphasis by Mitt Romney in his support of the Blunt amendment.

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law Over at lawfareblog.com, the presentation of the guilty plea by Majid Khan in the military commission is done.  Reading what he admits to is terrible to read - he is accused of, admits to, and is convicted of, many many awful things. Along with the transcript of the hearing  before Military Judge Pohl and the documents for the case there is a press statement by Chief Prosecutor Mark Martins dated February 29, 2012 in which he states, among other things (it is available at http://www.lawfareblog.com/2012/02/majid-khan-arraignment-5-prosecution-remarks-to-the-press/#more-6176): "In conclusion, I will note that astute observers familiar with international terrorism prosecutions in the federal courts have predicted that military commissions would need to decrease the level of legal uncertainty in order to develop into a more effective part of our national security and justice institutions.  I submit that what you have seen today is just that.  Today, you saw in open court an intelligent defendant accused of serious violations of the law of war.  He has been well-advised by a zealous and competent team of three defense counsel, having regular access to that defense team.  He faced overwhelming and admissible evidence of guilt, resulting from thorough criminal investigation and prosecution work.  And he decided to plead guilty to his crimes, to accept responsibility for his actions, to face up to a long sentence of confinement, and to fully acknowledge the lawfulness of his detention to date as a belligerent despite previous denials.  Experienced criminal justice practitioners will tell you that this requires predictability in outcomes, both as to what the system will determine with regard guilt or innocence and on what charges, and as to what the system will adjudge as a sentence on those charges.  Such predictability was achieved here, and the agreed-upon outcome upholds the interests of the people of the United States, the security interests of our nation and other nations, and the interests of justice. The reforms incorporated into the 2009 Military Commissions Act, resulting from action by all three branches of our government and review by our federal courts, have reduced the legal uncertainty of the system and made it more predictable in its outcomes.  While appreciating the criticisms leveled by concerned Americans and international partners, we believe that these reformed military commissions are fair and that they serve an important role in the armed conflict against al Qaeda and associated forces.  There is increasing evidence that the American people support this view, and we aim to be worthy of their trust. Your military exists to fight our nation’s wars, not to police its streets.  We do not lobby for missions, and we did not lobby for this one.  But we will carry out this assignment, as customary with other assignments, with integrity, dedication, and skill, and availing ourselves of expertise from across the federal government. When called upon to try those within our jurisdiction who have violated the laws of armed conflict, we will do so faithfully, transparently, respectful of the various roles within an adversarial system, and in accordance with the rule of law.  Thank you."

An interesting chart appears in this week’s Chronicle of Higher Education, February 24, 2012. Although giving to colleges and universities is up again, 8.2% in 2011, amounting to $30.3 billion, 86% of that giving went to just 25% of schools.

On my office door is a cartoon by Luckovitch for the Atlanta Journal-Constitution. It’s a church wedding. The minister, at the altar, is calling down the aisle to the couple. “One step forward, two steps back, now three forward, one back . . . .” In one of the pews, someone is saying “Gay weddings take forever.” This week’s marriage equality decision in Perry v. Brown (9th Cir. Feb. 7, 2012) is a lot like that. It takes a very small step forward and a large step sideways towards marriage for same-sex couples in California. And it’s a good thing, too.

by andré douglas pond cummings With most banks in “full-delay” mode in connection with foreclosures during 2011, California homeowners can expect a change—for the worst—in 2012 as banks look to aggressively pursue seriously delinquent mortgages this year. The foreclosure rate is expected to rise significantly, based…

Written by Hari Osofsky Last night, President Obama delivered his annual State of the Union Address.  Like last year, he focused on the potential for unity over energy independence, transition to cleaner energy, and energy infrastructure rather than on addressing climate change. He continued to tie that transition to innovation, construction, and jobs. However, the tone was somewhat different.  Unlike last year, where he did not mention climate change directly, he openly acknowledged partisan divisions with respect to climate change and even energy while trying to find bipartisan ground.  The President also spent time discussing the expansion of offshore drilling and natural gas as positive rather than just emphasizing the need to shift towards cleaner sources. I liked the realism of this shift.  One of the reasons I spent time in the aftermath of the BP Deepwater Horizon oil spill exploring the complexity of offshore drilling and oil spill regulation, and principles for moving forward and addressing environmental justice concerns, is because I believe that the desire for energy independence and security will compel us to keep drilling deep in at least the short-to-medium term.  Similarly, I think that natural gas is an important transitional energy source because we are not ready to shift dramatically to cleaner sources in the near term. I do think it's important, though, to think beyond our present constraints.  I live in the Midwest, with its massive wind capacity, and was particularly heartened by two experiences I had during my Climate Change and Clean Energy capstone course last semester.  First, when John Dunlop of the American Wind Energy Association visited us, he emphasized that between on-shore and off-shore wind, we have capacity to more than meet our energy needs and that intermittancy is more manageable than it is often portrated as being.  Second, when we went on a tour of the MISO, the Midwestern regional transmission organization, the operator answering our questions emphasized that they try to get as much wind online as possible.  This effort is not motivated by any type of environmental mandate, but out of their mission of reducing cost and maximizing reliability--the wind is cheaper than the more polluting sources.  I hope that we can move beyond bipartisanship to use law as a tool for the energy transformation--through a combination of conservation, efficiency, and transitioning sources--that would be a win-win for this country. I include the most relevant portion of the State of the Union below:

The Durban Conference of the Parties (COP17) of the United Nations Framework Convention on Climate Change (UNFCCC) is finally over two days after talks were scheduled to conclude. These extra two days were very productive, resulting in some good news on the big picture of treaty negotiations that needs to be contextualized in the big picture bad news for addressing emissions in the timeframe scientists say are needed.

The United Nations Framework Convention Convention on Climate Change has begun its annual conference of the parties in Durban. From the start, the news is depressing, and as Lesley McAlister noted in her blog, has a bit of a deja vu quality, and not in a good way. The Chief Economist of the International Energy Agency, Fatih Birol, indicated that we're on track for 6 degrees of warming by 2100 if we don't change our energy use patterns. Meanwhile, Canada, which is failing to meet its Kyoto Protocol commitments, has announced it won't sign on for another commitment period. While there are many nuanced negotiations going on regarding many important issues, which small groups of people fully understand, the progress on some of these topics since last year's Cancun negotiations does not address the fundamental problem: we are nowhere any kind of big picture solution to this problem. This is why the soon-to-be-released casebook I'm writing with Lesley McAlister ends with major climate change and geo-engineering as it's two primary scenarios, and asks our students to try to get us to an alternative future.

"The devastating events of 9-11 brought a tangle of complex issues, dangerous realities, and hard choices. To help meet these challenges, the United States began interrogating detainees. The interrogation settings included the Abu Ghraib Prison in Iraq, the Detention Center at Bagram Airbase in Afghanistan, and Camps Delta, Iguana, and X-Ray at Guantanamo Bay Naval Base. The American Psychological Association (APA) played a key role in supporting detainee interrogations and highlighted psychologists' contributions to this aspect of national security. For example, APA submitted a statement on psychology and interrogations to the US Senate Select Committee on Intelligence explaining that "psychologists have important contributions to make in eliciting information that can be used to prevent violence and protect our nation's security"; that "conducting an interrogation is inherently a psychological endeavor"; and that "psychology is central to this process" (American Psychological Association, 2007b). U.S. officials also saw a central role for psychologists: "Pentagon officials said . . . they would try to use only psychologists, not psychiatrists, to help interrogators devise strategies to get information from detainees at places like Guantanamo Bay, Cuba. The new policy follows by little more than two weeks an overwhelming vote by the American Psychiatric Association discouraging its members from participating in those efforts" (Lewis, 2006). APA promoted support for its interrogation policies in its press releases, its journals, its web site, its Internet lists, its conventions, the APA Monitor on Psychology, and other venues.

by andré douglas pond cummings America’s middle class is disappearing.  The emergence of Occupy Wall Street highlights a growing oligarchy in American society.  An oligarchy is defined by Merriam-Webster as “a government in which a small group exercises control especially for corrupt and selfish purposes.”  While many…

By SpearIt A recent op-ed in the New York Times entitled “Are Law Schools and Bar Exams Necessary” by economist Clifford Winston suggests a number of ideas which are both negligent and flawed.  Despite that I’m usually appreciative of the reports and studies issued by the Brookings Institution, Winston’s home institution, this opinion left lots to be desired.

by andré douglas pond cummings As if from a script of “what not to do in the face of economic crises,” and as identified by nobel laureate Paul Krugman in his “Rabbit Hole Economics” NY Times Op-Ed, the Tuesday, October 11th Republican Presidential debate highlighted a…

By Dr. JoAnne Sweeny  In English, the verb “procrastinate” comes from Latin, as many big English words do.   It combines the adverb “pro,” which implies a forward motion with the word “crastinus,” which means belonging to tomorrow.  As noted by Ann Enquist in her article Defeating the Writer’s Archenemy, researchers have indicated that between 65 and 90 percent of college-level students procrastinate to the extent that  it has negative effects on their academic performance. Procrastination in the legal world is particularly problematic because so much of practicing law is following deadlines.  Whether it’s a memo for a partner or an important court filing, a document that is even one minute late can cost you.  At the very least, procrastination can annoy your client and foster a bad relationship with opposing counsel.  According to ABA Comments to Model Rule 1.3 on Diligence, “no professional shortcoming is more widely resented than procrastination.” Of course, if your students are procrastinators, this information is hardly helpful.  What may be more helpful for law professors is to help their students figure out why they procrastinate to see if there is something they can do about it.  Even an entire class spent on helping students overcome their procrastination is time well-spent. According to the authors of The Mind Gym: Give Me Time, procrastination isn’t about personality, it’s about thinking.  Someone who declares “I am a procrastinator” makes his or her behavior appear to be a personality trait that is as invariable as his or her height or which hand he or she writes with.  In fact, procrastination is a habit that is caused by faulty thinking or beliefs.  Once your students know what their faulty thinking is, they can attack those thoughts and improve their habits. There are several different kinds of beliefs that can cause procrastination.  Try to help your students see which category or categories they fall into:      1.     Perfection Perfectionists believe that everything they do must be exactly right.  That can lead to being unable to finish a project.  Because the project isn’t “perfect,” and probably never can be, it will never be finished.

by andré douglas pond cummings To most individuals affiliated with SALT as well as lawyers around the world, a hero, mentor, friend and exemplar has passed away. Professor Derrick Bell, the originator and founder of Critical Race Theory, passed on October 5, 2011 in New York City. Professor Bell was 80 years old. Known as a creative innovator and agitator, Professor Bell often sacrificed his career in the name of principles and objectives that have inspired a generation of scholars of color and progressive lawyers everywhere. Bell resigned a tenured position on the Harvard Law School faculty to protest Harvard's refusal to hire and tenure women of color onto its law school faculty. For the past twenty years, Professor Bell taught at NYU Law School. For my own part, Professor Bell's writings seized my imagination in law school and appeared to me as if "manna from heaven" as a second year law student. Bell's scholarship, including his widely influential books Faces at the Bottom of the Well: The Permanence of Racism and And We Are Not Saved: The Elusive Quest for Racial Justice resonated intellectually with me like nothing I had ever encountered before in my life. His desire to disaggregate legal scholarship from its traditional moorings and introduce legal storytelling, narrative, parables and fiction as a new and bold form of legal writing was groundbreaking and changed the legal academy dramatically. My own tribute to Professor Bell appears in my recent Louisville Law Review article "A Furious Kinship: Critical Race Theory and the Hip Hop Nation." I believe that Bell's groundbreaking narrative style struck a cord with me because I had grown up in Southern California listening to the narrative storytelling of groundbreaking hip hop artists. In "A Furious Kinship" I endeavor to parallel the influence of Professor Bell as the patriarch of Critical Race Theory with the influence of Chuck D and Public Enemy, one of the most important socially conscious hip hop artists and groups to ever emerge. In true Professor Bell fashion, when I had occasion to tell him in person of my vision of this influential parallel of powerful voices, Bell as founder of CRT and Chuck D as originator of socially conscious hip hop, he seemed genuinely delighted by this narrative connection, encouraging me to continue the exploration.

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law I went to my 30th reunion from Harvard Business School two weekends ago, at which I listened to a presentation by a former Bush Administration person about Iraq and Afghanistan.   While the person spoke for…

Written by Hari Osofsky I just spent the weekend in Oregon at a beautiful memorial event for Keith Aoki. The University of Oregon School of Law and Wayne Morse Center for Law and Politics, where he was to have been a visiting scholar this fall, hosted a wonderful…

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law I can not emphasize enough the importance of the Ali Soufan interviews on 60 minutes (Update 9/15: now available online at http://www.cbsnews.com/video/watch/?id=7380678n&tag=contentBody;storyMediaBox) and PBS's Frontline show for understanding the very disturbing revelations on so many levels from this reporting. First, Soufan reveals the manner by which Enhanced Interrogation Techniques began to be used starting with Abu Zubaydah.  He fundamentally contradicts what in September 2006 President Bush said to the American people were the reasons for the use of the Enhanced Interrogation Techniques.  Abu Zubaydah was talking and was being cooperative.  According to President Bush's presentation, Abu Zubaydah's lack of cooperation was supposedly the predicate to the application of the techniques.  That is demonstrated to have been a false statement to the American people. Second, not only were the Enhanced Interrogation Techniques not needed, but the person doing them was had never previously interviewed an Al  Qaeda person.  Ali Soufan carefully does not mention the name of the CIA contractor who was brought in to do the Enhanced Interrogation Techniques but the interviewer states his name as Mitchell.  In an e-mail yesterday I said we needed to ask what was his name.  His full name is James Mitchell per http://tortureaccountability.org/james_mitchell which corroborates much of what Ali Soufan says.  By contrast, Soufan had interrogated numerous Al Qaeda persons in the years before interviewing Abu Zubaydah.  Mitchell was a CIA contract psychologist with no experience interrogating Al Qaeda types.  Mitchell was the subject of a disciplinary action betore the Texas Board of Psychologists for his role in the interrogation program.  That disciplinary action was dismissed recently by that state board.