Salt Blog

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law (Update:  Other than Romney and Obama, I am avoiding using names of others here to respect their privacy.  I sent a copy of this post to some of my old HBS classmates and one…

By Marjorie Cohn and Jeanne Mirer The Bush administration detained and tortured suspected militants; the Obama administration assassinates them. Both practices not only visit more hatred upon the United States; they are also illegal. Our laws and treaties prohibit torture. The Constitution…

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law “It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national…

By Olympia Duhart This article originally appeared in the Huffington Post on June 19, 2012. At its core, A Streetcar Named Desire is a story about culture clash and self-deception. The 1947 play by Tennessee Williams is driven by a conflict between those divided…

By Benjamin G. Davis This commentary first appeared in the Toledo Blade on June 17, 2012. On Sept. 11, 2001, I lost a friend from high school who had gone to the World Trade Center in New York City that day to make a speech.

The tragic case of Adnan Farhan Abdul Latif hit a dead end when the US Supreme Court issued an order refusing to hear his case last week. Latif, a Yemeni man, has been imprisoned at Guantanamo Bay since January 2002, after being detained while traveling to seek medical treatment.

On top of the alarming influence of non-transparent money in politics, we need to pay more attention to the influence of undisclosed money in scholarship about law and public policy. Many prominent law scholars get funded by outside non-academic interests for speeches and writing, without much scrutiny of the possible impact on substance. Richard Epstein, for example, consulted for the pharmaceutical industry while serving on a university ethics committee and writing scholarship arguing against tighter conflict of interest rules in health research --- though unlike many scholars he is relative willing to proclaim his market success. A new book, Predator Nation, by Charles Ferguson (Director of the Inside Job documentary on the financial crisis) includes a fascinating chapter about conflicting interests of scholars influential in economic policy.

The New York Times recently declared, “American legal education is in crisis.” One cause, the editorial argued, is legal education’s traditional preference for theory over practice: “In 2007, a report by the Carnegie Foundation for the Advancement of Teaching explained that law schools have contributed heavily to this crisis by giving ‘only casual attention to teaching students how to use legal thinking in the complexity of actual law practice.’” Widely publicized calls to reform legal education have come from Best Practices; its blog; and other blogs, e.g., "Room for Debate – The Case Against Law School."

Judicial vacancies restrict access to the federal courts, make litigation more expensive, and insidiously undermine the credibility of government. And a confirmation process that prevents qualified candidates of an elected president’s party from taking office sways the judiciary further to the right despite an election where voters said civil liberties, clean air, privacy, reproductive rights, social justice, and corporate accountability were important issues for our federal government to maintain and safeguard. The Alliance for Justice has created a fantastic resource to help educate voters and civic leaders about the state of judicial nominations. The Judicial Selection Project has a running count of vacancies in the district and circuit courts, along with profiles of all of the current nominees. It’s a great lesson in the advise & consent function of the Senate, or at least what can go wrong with it.

Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law I am moved to write about several aspects of the current conflict in this space as part of what I perceive as my duty as a professor of international law and an American citizen living and working in Toledo, Ohio.  What I have to write may take some time and be over several posts, but I will endeavour to give the same name and give the different aspects of these posts.  I would be happy if people would feel free to link to these articles if they find them of interest. I. Military Commissions Generally With the arraignment this morning of KSM and the other alleged 9/11 plotters, the next act of the military commission endgame plays out with the whole world watching. We are asked to watch and see the quality of the system and judge for ourselves (Brig Gen Mark Martins Remarks May 4, 2012 http://www.lawfareblog.com/2012/05/live-blogging-tomorrows-arraignment-in-united-states-v-ksm-et-al/#more-7092).  There are those who have watched past proceedings who assure us they were fair (Benjamin Wittes, Will Military Commissions Survive KSM? The Washington Post, May 4, 2012, http://www.washingtonpost.com/opinions/ksm-trial-will-put-military-commissions-to-the-test/2012/05/03/gIQAXeE0zT_story.html) and there are those who have worked in them who  challenge their fairness (Morris Davis, Khalid Sheikh Mohammed Gets His Way, Salon, May 2, 2012, http://www.salon.com/writer/morris_davis/).  Is it true that  "Quietly and gradually, the commissions have become a real court?"

Americans are often said to have a love-hate relationship with rural America.  On the one hand, many wax nostalgic about the good old days, simpler times, the bond of "rural community" that many of our grandparents once lived, even if most of "us" grew up in the city.  Plus, most everyone enjoys a bit of time spent in "nature," and some even realize--the urban ag craze aside--that most of our food is grown "in the country."  On the other hand, urbanites often hold rural people in disdain, mocking them for their attachment to place, their regressive politics and culture and, yes, even for their nostalgia. One particular aspect of the "love" (more precisely, nostalgia) with which we may regard rural America is the tendency to think that bad things associated with cities--most notably crime--are largely absent in smaller towns, in nonmetropolitan areas.  That's hardly accurate, as I've discussed here and here.  I wonder, though, if these rural myths are the reason that even more shocking crimes--crimes involving, for example, racial or ethnic animus--don't get national attention.  For crimes like these, I would think that urban Americans might be anxious to publicize the crimes, to hold these acts up as justification for the "hate" (that is, disdain, contempt) part of the relationship.

By Hugh Mundy During its October 2011 term, the Supreme Court issued two well-publicized decisions severely curtailing the already tenuous Fourth Amendment rights of the accused and incarcerated.  First, in Howes v. Fields, the Court held that prisoner interrogations held “in private” about “events occurring outside the prison” do not require Miranda warnings.  In addition, in Florence v. Board of Chosen Freeholders, the Court sanctioned jailhouse strip searches of arrestees without reasonable – or any – suspicion of criminal activity.  Even as the Court further eviscerated the Fourth Amendment rights of those in custody, two other rulings, Maples v. Thomas and Martinez v. Ryan, extended the Sixth Amendment right to counsel for incarcerated litigants.  Still, unlike the obvious damage to prisoner’s rights wrought by the Fourth Amendment cases, the utility of the Maples and Martinez for inmates seems murky at best. In Maples, the Court held that a death row inmate established good cause to excuse his failure to move for post-conviction relief after his lawyers missed a filing deadline in state court. While the case made headlines as Maples’ pro bono attorneys hailed from the prestigious New York firm of Sullivan & Cromwell, its precedential value appears limited.  Indeed, in determining that Maples demonstrated good cause for his delinquency, the Court narrowly tailored its ruling to the unique case facts surrounding the botched appeal.  Those “unusual and extraordinary circumstances” included a “mail room mix-up” at Sullivan & Cromwell, a failure by Maples’ local counsel to file a notice of appeal, and an admission by Maples’ trial attorneys that they “were stumbling around in the dark” during the sentencing phase of his trial.  In a concurring opinion, Justice Alito noted that Maples was entitled to relief due to the “perfect storm of misfortune” that engulfed his appeal. Martinez, by contrast, received comparably little media attention.  The case may have been overlooked because it deals, in large part, with complicated state procedural rules governing access to federal habeas corpus review.  As a result, the opinion is not easily reduced to sound-bites or headlines. 

This morning NPR broadcast a report on the millionaire contributors to the various Super PACS which will only fuel the vitriol of this presidential election cycle. The list of contributors, those who have given a million or more and to which PAC, is available on line. Robert Smith, the NPR reporter, focused on Steven Lund, who had set up a phony corporation to hide the fact that he had given $1 million to Restore our Future, the Super PAC supporting Mitt Romney. I could have easily slipped into cynicism, believing that Citizens United (2010) was indeed the death knell of our democracy. I could have slipped deeper into despair thinking that the U.S. Supreme Court might overturn Citizens United, but not before the Super PACS had done their damage and gotten Obama out of office. At first I tried to elicit Stephen Colbert’s satire, his Super PAC, Making a Better Tomorrow, Tomorrow. But even Stephen’s wicked humor didn’t help. That’s all I could conjure was a scene of depressed and disappointed would-be voters who might just sit out this election. I was recognizing the symptoms: cynicism, passivity, and victimhood. These are self-government’s deadly enemies.

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law http://youtu.be/S5puAN1PGQw Well, I went home with the waitress The way I always do How was I to know She was with the Russians, too I was gambling in…

Guest blog by Professor Craig L. Jackson, Thurgood Marshall School of Law, Texas Southern University Crosspost from Jurist  http://www.jurist.org/forum/2012/04/craig-jackson-judicial-review.php Did I miss something? Joe Scarborough begins my Tuesday morning with a rant and rave about President Obama's statement yesterday regarding judicial restraint and the Supreme Court litigation over the Patient Protection and Affordable Care Act. It was apparently egged on by an editorial in Tuesday's edition in the Wall Street Journal. What the president said was: "[f]or years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this court will recognize that and not take that step."

In January 2012, the United Methodist Church took a stand against private profits generated from imprisoning American citizens. The UMC board of trustees that oversee the investment of company employees in the churches' pension fund voted to discontinue any investment in companies that generate or derive profit from the management and operation of prison facilities. Recognizing the perverse incentives attendant in profiting from mass incarceration, the United Methodist Church decided to "vote with its feet (or $$)" by moving its money. According to the UMC website and author Heather Hahn: "Private prison companies are big business. But, is it moral for United Methodists to make a profit from the incarceration of people? The United Methodist Church’s pension agency has pondered that question since May [2011]. The Board of Pension and Health Benefits announced Jan. 3 [, 2012] its decision to prohibit investments in companies that derive more than 10 percent of their revenue from the management and operation of prison facilities.

Over at the Volokh Conspiracy, I was struck by a comment on a posting of Professor Richard Sander of UCLA Law School about "The Problem of "Science Mismatch"" discussing his ongoing Mismatch Effect work encouraging cascading blacks down to lower ranked schools. The comment was on what benefit comes from this research and replied, "The obvious benefit is that we would stop discriminating against Asians and whites, and those blacks that were admitted would not have the rest of the world assuming that they only attended Harvard/Yale/Stanford because of racial preferences."

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.