"Of the various works that I had in progress, which engaged me the longest in contemplation, and at which I worked with the greatest satisfaction, upon which I would have gladly worked my entire life, and which would have placed the seal upon my reputation was my Institutions politiques… my views had been greatly extended by the study of the history of manners. I had come to see that everything was connected radically to politics, and that, no matter what course one followed, no people could be of a nature other than that which its government gave it; and thus this great question of the best possible government seemed to me to be reduced to just that. What is the nature of the right government which will create the most virtuous, the most enlightened, the most wise people, in the end to take this word in its greatest sense. I had thought this question close to another even if it was different. What is the government which by its nature adheres today most closely to the law? And from that, what is the law?"

 — 

–Jean-Jacques Rousseau, Confessions, bk ix (1770)

Jus Cogens or Jus Quit-it?

pro·por·tion·al (pr-pôrsh-nl, -pr-) adj.1. Forming a relationship with other parts or quantities; being in proportion.2. Properly related in size, degree, or other measurable characteristics; corresponding: Punishment ought to be proportional to the crime.3. Mathematics Having the same or a constant ratio.

The Civil War Congress and Tactical Battlefield Decisionmaking

I was doing a bit of research on Congress’s constitutional war powers vis-a-vis the President’s war power as Commander-in-Chief (CiC) and came across the 1862 Additional Article of War (AAW).  This was an act passed by Congress in the midst of the Civil War that criminalized the act of returning fugitive slaves to the South by Union military forces.

True, abolitionist sentiments helped the AAW pass into law, but Congress’s main agenda was to deplete the South of able-bodied fighters more than it was to ensure freedom for slaves.  Especially where the North enjoyed a significant manpower advantage -19 million fighters to the 12 million for the South- the ability to constrict rebel forces by a possible 4 million fighters was of no small strategic interest.

Being the “great emancipator,” one would think Lincoln was supportive of this measure, but not so.  The historical record indicates Lincoln was actually opposed to the AAW, fearing that it would severely undermine his Border-state strategy dependent on garnering support from slave-owning border states. Despite being an ardent believer in robust CiC powers, Lincoln signed the AAW into effect.

Passage of the AAW underscores the breadth of war power Congress has previously enjoyed when it comes to dictating the tactical course of war.  The common notion is that the President’s Article 2, Section 2 CiC enables him to exclusively command the Armed Forces; however, here is a situation where Congress, in the midst of war, commands President Lincoln to subject any Union military member to court martial if he returns escaped slaves to the South.

This despite Lincoln’s concern that southern slave owners, especially in border states like Kentucky, would not be happy with the Act since it further motivated slaves to escape and precluded slave owners from recapturing their property.  For Lincoln, who preferred a gradual emancipation of slaves to quell Southern and border state antagonism, the Act was contrary to his strategic preference in commanding the Union troops during the Civil War.

In light of the Yoo memos claiming inherent and exclusive CiC war powers, the AAW stands in sharp contrast demonstrating Congress’s ability to impede on the President’s command and control of the Armed Forces.

Law Enacting an Additional Article of War

CHAP. XL.–An Act to make an additional Article of War.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That hereafter the following shall be promulgated as an additional article of war for the government of the army of the United States, and shall be obeyed and observed as such:

Article –. All officers or persons in the military or naval service of the United States are prohibited from employing any of the forces under their respective commands for the purpose of returning fugitives from service or labor, who may have escaped from any persons to whom such service or labor is claimed to be due, and any officer who shall be found guilty by a court-martial of violating this article shall be dismissed from the service.

SEC. 2. And be it further enacted, That this act shall take effect from and after its passage.

APPROVED, March 13, 1862.

Brave New bigLaw World

No bigLaw? It’s nothing to lose your head over.

Good luck to all those 3Ls getting their offers to bigLaw deferred.  To give you a sense of how widespread deferred offers to 3Ls are, consider that 8 out of 9 Gtown Law 3Ls are supposedly getting their start date pushed back to the same start date as the 2010 class at NY-White & Case.  In an unstable economy this is hardly surprising.

For the affected this means no lined up job in the short-term, no health care, but a cool $40k for your troubles.

Not bad right?  But as the ABA Journal points out, even non-profit law jobs are rejecting those looking to make the jump from private to public interest.  Often it is because resources and positions are stretched too thin in non-profit law.  The inequity in pay between once private practice bound attorneys and established non-profit attorneys, who make around $60k/yr, can also be a source of latent office animosity.  And if you’re an attorney or a 3L without much substantive non-profit work because you envisioned a career in private practice, landing a non-profit gig becomes even more difficult.

That said, I hardly feel bad for these folks.  If you’re smart enough to get into a fancy-pants firm you’re probably smart enough to figure out what to do in this interim part of your life.  So it was un-planned?  That’s just when life gets a bit interesting.

AIG and Legal Chutzpah

Crying….all the way to the bank

It’s probably a good idea not to wear your Man U. soccer jersey around town if you live in the states. The soccer club is famously sponsored by A.I.G., which has earned the wrath of politician and commoner alike.

But is the criticism warranted?  Using $165 million in taxpayer money to pay bonuses in these harsh economic times sounds absurd on it’s face. It’s an even more audacious attempt when considering that the money will pay off AIG officials whose business acumen lost the company $99 billion in FY 2008.  Meanwhile, the millions of taxpayers who are literally paying for their poor decisions are losing their jobs.

AIG claims that their hands are tied and that they are contractually obligated to make these “retention payments” under Connecticut law.  The argument goes that these are employees who hold very complicated derivatives positions and constitute the very brain power required to pull off sophisticated transactions as the company continues to grow out of their financial black hole.  The failure to make these payments, and presumably retain their services, would mean that companies doing business with AIG could forgo paying them billions since the quality of their services would be diminished.

Not so fast though AIG.  Connecticut Attorney General Richard Blumenthal doesn’t think the bonuses would be subject to Connecticut law and could therefore be revoked.

NPR has a money interview that you can listen to with Steven Thel, a professor with Fordham Law School and former SEC enforcement lawyer who breaks down why AIG’s legal claims lack any serious merit.  Guaranteed bonuses unconditioned on performance are not unheard of, but $165 million paid to 370 people seriously undermines the legitimacy of these contract clauses.  Where is the moral hazard, after all, when an analyst or executive can decide how to spend trillions when they will always receive a bonus at the end of they day no matter how much they’ve lost?  Such a system inherently invites greater risk taking and reckless speculation, the very type that led AIG knee-deep into toxic subprime and credit default swap investments that bailout funds are now needed to cover.  Especially since it appears that AIG knew it would have to “unwind their derivatives” - or take a complete bath on their billions in losses - these clauses were designed to ensure that AIG could maintain their talent edge.  It’s as if AIG decided to pay out bonuses to individuals whom they knew would lose them money.

President Obama has instructed Treasury to pursue “every legal option” to prevent these bonuses from being paid out.  It’s worth checking out Glenn Greenwald’s posts on what these options might entail.

For their part, the House is taking steps to dissuade AIG and any other firm who has accepted a minimum of $5bn in bailout funds from paying out any bonuses.  A House bill set for vote today would impose a 45% excise tax on the company and the individual receiving the bonus for a 90% net bonus tax.

This measure falls 10% too short though. If this fight is about principle, why should a single cent of American taxpayer money be paid in bonuses to any AIG employee?  To this extent, law professor Sandy Levinson over at Balkinization explains why Congress could actually impose a 100% tax:

But why isn’t the “legal avenue” broad enough to drive a Mack truck through? Congress could pass an act literally in the next week stating that a) no contracts between banks or other financial entities receiving any federal bailout money and their employees relating to bonuses be implemented; and b) that all bonuses received by employees of banks and other financial entities receiving any federal bailout money since, say, Dec. 1, 2008 (this would apply to Merrill Lynch just fine) be taxed at the rate of 100%. If a state did the former, there would be a Contract Clause problem. But the Contract Clause prohibiting the “impairment” of contracts applies, textually, only to state governments, not to the national government.

The point of all of this is that if AIG really wanted to avoid paying the $165 million in bonuses it could have at least tried not to.  It didn’t, and instead of AIG lawyers pursuing “every legal option” to preclude bonus payments, it is the Obama adminstration having to make the legal case.  I understand the argument that AIG is too big to fail.  It is/was the largest insurer in the world and allowing it to crumble would have thrown global financial markets into even greater disarray.  But the issue of AIG bonuses goes beyond saving it from catastrophy; rather, it is $200 million spent to ensure that it can maintain its own global insurance hegemony.

Confronting the Religious Right to Cover »

The Michigan Supreme Court will be hearing a case this term involving a Muslim woman, Ginnah Muhammad, who has sued a district judge that dismissed her small claims case after Ms. Muhammad refused to remove her niqab for religious reasons. The niqab, not to be confused with the head covering hijab, is worn by a small fraction orthodox Muslims in the United States to cover their entire face.

In response to this specific Muslim woman’s case, the Michigan state legislature passed an amendment that changed Michigan Rules of Evidence 611 to allow district judges more discretion in ordering how parties and witnesses appearing before the court may be dressed. Here’s the key language in the rule:

611(b): Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to:

(1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons.

Staff Comment: This proposed amendment would clarify that a judge is entitled to establish reasonable standards regarding the appearance of parties and witnesses to evaluate the demeanor of those individuals and to ensure accurate identification.

Resolution of the case will require reconciling two fundamental constitutional rights: The Sixth Amendment Confrontation Clause guarantee that defendants have the right to confront witnesses to ensure adequate due process and the First Amendment protection of the freedom of religion. If the court can find an alternative to the amendment that is less burdensome on religious rights and does not “unduly interfere” with the government achieving its state interest in identifying a witness and assessing his or her credibility, the amendment will likely fail.

You can read how the ACLU constructs this argument on behalf of the Muslim appellant, here.

It’s important to keep in mind that the court is really in no position to determine whether the niqab is a justified exercise of religious freedom as long as the religious claims are made in good faith.  It matters little, for example, that a number of prominent Islamic scholars have determined that covering the face is not compulsory in Islam and that Islamic rules of necessity (darura) and public interest (maslaha) make it  permissable to remove religious coverings for official medical and security purposes.

Especially for those not willing to take a culturally relativist position on the matter, the vision of a woman draped in dark cloth with only her eyes exposed to the world is an inherently oppressive one.  But it is precisely to safeguard against common negative predispositions like this one that an individual’s right to freely practice his or her religion is constitutionally protected. Leaving it in a judge’s discretion to order the removal of religious clothing seems to increase the liklihood that a judge’s negative biases leak into a court proceeding in the name of due process, ultimately risking perceptual fairness in the final judicial outcome.  Even more troubling, the ACLU brief points out that Muslim women are less likely to pursue legal avenues in domestic violence cases if forced to testify in a manner inconsistent with precieved religious dictates.  (It’s bad enough that your husband opposes you, but now God?!)  Finally, just as a judge may be concerned with a fact-finder’s ability to effectively adduce the truthfullness of a statement made by a woman fully covered on the stand, it’s also more probable that an orthodox Muslim woman would feel more comfortable and, therfore, is more likely to provide honest and accurate testimony if allowed to wear the niqab in court.

In the end, where the religious practice does not “unduly interfere” with the rights of others or that of the state, a liberal democracy like ours demands its free exercise.

Even Better than American Idol

The names of the six candidates in final consideration by President Obama to replace Justice Souter on the Supreme Court were obtained/leaked to the AP:

Among those Obama is considering are Solicitor General Elena Kagan, Michigan Gov. Jennifer Granholm, Homeland Security Secretary Janet Napolitano and U.S. Appeals Court judges Sonia Sotomayor and Diane Pamela Wood. California Supreme Court Justice Carlos Moreno is also under review by Obama.

Sources familiar with Obama’s deliberations confirmed the names to The Associated Press on condition of anonymity because no candidates have been revealed by the White House. The confirmation amounts to the first time any name has been directly tied to Obama.

Just a hunch, but I think it’ll be Kagan. She seems to be oozing with empathy.