In China, impasses like this are sometimes resolved violently; specifically, the development agency dispatches ‘relocation [...]]]> An extraordinary article by Andrew Jacobs in the New York Times recently told the story of Qin Rong, owner of the Fish Castle Restaurant in Beijing.  She was told to clear out by a state-affiliated development agency that had purchased the land out from under the restaurant.  Her landlord knew about the pending sale at the time she entered her 3 year lease, but didn’t tell her.  She still had two years left on her lease but was willing to go – if the developer would fully compensate her for the renovations she had made to the building.  The agency said no.  She refused to budge.  That’s when things got crazy.  

In China, impasses like this are sometimes resolved violently; specifically, the development agency dispatches ‘relocation men’ who either reach agreement with, or beat the hell out of, the tenant.  Knowing what was coming, Qin Rong hired an ex-relocation man who had switched sides to help protect her and her business.  Apparently she hired the right guy, Lu Daren.

When 60 – yes, 60 – thugs showed up and dragged Lu Daren and other holdout tenants out onto the street, a pitched battle ensued, and the thugs left.  Police investigated but refused to intervene.  For the next few weeks, without heat or electricity, Lu Daren, Qin Rong, and the restaurant employees slept inside the Fish Castle, while thugs occasionally circled outside.  The standoff ended when the agency agreed to renegotiate.  The parties reached an agreement for full payment, and the Fish Castle was abandoned.  

To some, this story may sound like Kelo in China: a mom and pop business driven out by developers supported by the state.   But there are a lot of critical differences.  Among them: the crux of the Kelo opinion was not that under a set of particular circumstances private property rights must give way to the interest of the state, but rather that in the United States, local political institutions provide a forum for resolving local land use decisions of general application.  Qin Rong, and others angered by the actions of the development agency, had no political means of redress; they could not throw the bums out, so to speak.  The result was violence, as it often is in the absence of a peaceable means of redress. 

In many ways, both the reaction in the United States to Kelo, and the battle for the Fish Castle in Beijing, have proven the Supreme Court correct: political fora provide adequate means of redress for people angered by local land use decisions of general application; it is only when such institutions are unavailable that alternative means — whether judicial review or occasional self-defense – are required.

My current submission strategy

Many of us are trying to put the finishing touches on articles during the winter teaching break. And, according to ExpressO, a number of highly-regarded reviews that have been closed to submissions are opening themselves again in the very near future.  Therefore, I think it’s safe to say a tsunami of footnotes is bearing down upon many law review offices.

For the relatively new, untenured among us – oh say, for instance, me – this is an especially important moment, and it’s important to get it right.  The pressure can make us a little loopy.  Last week I sat listening to the lovely Christmas carol In the Bleak [...]]]> A little inside baseball discussion for the professoriate: it seems that law review submission time is upon us. 

My current submission strategy

Many of us are trying to put the finishing touches on articles during the winter teaching break. And, according to ExpressO, a number of highly-regarded reviews that have been closed to submissions are opening themselves again in the very near future.  Therefore, I think it’s safe to say a tsunami of footnotes is bearing down upon many law review offices.

For the relatively new, untenured among us – oh say, for instance, me – this is an especially important moment, and it’s important to get it right.  The pressure can make us a little loopy.  Last week I sat listening to the lovely Christmas carol In the Bleak Midwinter, and when it got to the verse, “What have I to offer, poor as I am?” the image that flashed in my mind was me, face smudged with dirt, sending out a crinkled copy of my current draft article.

Me, immediately following article submission

A wonderful professor of mine – then untenured, now safely ensconced in the tenured embrace of the Ivy league – once dressed for Halloween as ‘Notenuratu,’ a vampire-like creature whose cape was covered with pages of his draft articles. 

But how, exactly, does one get the submission process right?  It’s a question that I suspect takes up a lot of chat time among us junior scholars.   Do you have a submission strategy?  Want to share it?  Pretty please?

Very bad news (AP Photo)

In 1990, he also mis-stated the city of his birth on application for a U.S. social security number.  Now, that may sound as trivial as Jeffrey Dahmer tearing a tag off his mattress, but it’s not quite so meaningless.

Joint [...]]]> Anwar Awlaki is very bad news.  He is a cleric who has a history of advising people who later commit mass murder.  He met with three of the hijackers before the thousands of murders of 9/11; he was a confidant and e-mail correspondent with Nidal Hassan, who murdered and maimed dozens of soldiers at Ft. Hood; and it is now suspected that he was the recruiter of Umar Farouk Abdulmattulab, who yesterday attempted to murder 300 people over the skies of Detroit.

Very bad news (AP Photo)

In 1990, he also mis-stated the city of his birth on application for a U.S. social security number.  Now, that may sound as trivial as Jeffrey Dahmer tearing a tag off his mattress, but it’s not quite so meaningless.

Joint Terrorism Task Force investigators discovered his false statement in 2002, after the statute of limitations has passed for social security fraud.  But they also discovered that in 1993, he had used the social security number he had fraudulently obtained, in order to obtain a United States passport.  The statute of limitations for passport application fraud had not passed.  Therefore, in June 2002, the investigators convinced the U.S. Attorney’s office in Denver to file a criminal complaint against Awlaki, which it did.  It also applied for, and obtained, an arrest warrant for Awlaki for passport fraud.

Awlaki attempted to enter the U.S. four months later on a flight arriving at JFK International Airport, and was seized at the airport.  But there was a problem: the arrest warrant had been rescinded the previous day, at the request of the same U.S. Attorney who had obtained it.  Awlaki was released.  Alerted by his airport seizure that he was being targeted, he left the United States and settled in Yemen where, among other things, he recruited for Al Qaeda.

Why was the arrest warrant rescinded?

The U.S. Attorney, David Gaouette, had discovered that in 1996, three years after applying for his passport, Awlaki had corrected his mis-statement on his social security application.  The Social Security Administration now considered Awlaki’s social security number valid.  Therefore, according to Gaouette, the SSA would not testify that Awlaki had an invalid social security number, and without its testimony, Gaouette could not prove beyond a reasonable doubt that Awlaki held a passport obtained fraudulently.  

Gaouette may or may not have been right that he could not obtain a conviction for passport fraud; for purposes of this discussion, let’s assume that he was.  The question is: should Gaouette have asked that the arrest be rescinded?  The answer to that question is not so easy. 

One straightforward answer is: yes.  If you don’t have, and can’t get, the evidence necessary to convict, then an arrest warrant should be rescinded.  

But it is a basic nugget of constitutional criminal procedure that the standard for arrest is probable cause, which is a considerably less exacting standard than beyond a reasonable doubt.  Therefore, if Gaouette’s assertion is that he needed evidence of a crime sufficient to convict Awlaki in order to arrest him, that is simply wrong.  On the other hand, a principal justification for allowing arrests based upon mere probable cause is that the State believes it can develop evidence sufficient to convict the arrestee.  If that isn’t true – and it wasn’t in Awlaki’s case – then perhaps the arrest power should not be used.  After all, the court issuing the warrant relies on the State’s good faith assertion that arrest is now warranted, and by implication that conviction is at least somewhat likely to result.

But that’s a very academic answer, and in the real world of law enforcement, these niceties are not always observed, sometimes with good reason.  The power to arrest is often used for purposes other than obtaining the conviction of the arrestee for the crime for which he’s been arrested; often, the State wants to interrogate him in order to obtain information about other crimes, or even about non-criminal activities.  The cause of arrest, in other words, is a pretext.    

The FBI desperately wanted to arrest Awlaki on a pretext so that it could interrogate him — and, as it admits, not about passport fraud.

Often, we criticize law enforcement for arresting people based on pretexts.  Gaouette might be lauded for adhering to the letter and spirit of the law.  Now, with famously accurate hindsight, Gaouette can expect to face intense criticism for not allowing Awlaki to be arrested based on a pretext, so that the FBI could interrogate him.

Now it’s your turn: what should Gaouette have done, and why?

Believe it or not, even though mortgage lending sparked the crisis, the Act doesn’t provide much guidance on how the system should be reformed.  In essence, it punts the question to regulators, telling them to enact regulations that provide mortgage loan orginators with the proper incentives to create a competitive market that provides both affordable, and sustainable, mortgage loans.  Feel better?

I’ve spent a fair amount of time writing [...]]]> Lost in the glare of the health care reform conflagration: the House passed the Wall Street Reform and Consumer Protection Act of 2009.  If you had told me one year ago that Washington’s massive proposed long-term response to the worst financial crisis since the Great Depression would gather relatively little notice, I wouldn’t have believed it.  Or, at least, I wouldn’t have wanted to.

Believe it or not, even though mortgage lending sparked the crisis, the Act doesn’t provide much guidance on how the system should be reformed.  In essence, it punts the question to regulators, telling them to enact regulations that provide mortgage loan orginators with the proper incentives to create a competitive market that provides both affordable, and sustainable, mortgage loans.  Feel better?

I’ve spent a fair amount of time writing and talking about mortgage lending reform.  It seems to me that the most effective way to improve mortgage loan origination in the United States is to adjust the risk faced by mortgage loan originators.  Readers of Concurring Opinions probably already know that mortgage loan origination underwent a fundamental change in the latter half of the 20th century.  Unknown to most borrowers, the banks from whom they obtained their mortgage loans did not keep them.  They sold them, and the right to receive payments on them, to securitizers, who then bundled loans together and sold securities in the bundles to institutional investors.  The system had the positive effect of creating a robust market in mortgage lending, making home buying more affordable.  It also had  the negative effect of creating a market in which loan orginators received reward without risk, since the failure of the borrowers to repay the loan was no longer the originator’s problem.  That, in turn, created an enormous incentive for loan originators to make loans — any loans, to anyone, regardless of their ability to repay them.  Hello, subprime lending and the race to the bottom.  Remember Lending Tree’s ad slogan: “When Banks Compete, You Win“?  Turns out, not so much, unless by “win” you mean “live in economically disastrous times.”

His People Know Mortgage Loan Origination

What to do then?  For guidance, look north.  The Great White North, specifically.  Canada came through the mortgage crisis just aboot fine.  There are lots of differences between the Canadian and U.S. banking systems [ironically, the Canadians based their system on Alexander Hamilton's national bank model, which we discarded] but there are enough similarities to make a couple of simple reforms modeled on the Canadian system.  In my opinion, they would go a long way to preventing a recurrence of the crisis.

First, a simple rule: mortgage originators must keep a certain percentage — say 10% — of the loans they originate in-house: no selling them on the secondary market allowed.  But here’s the rub: the orignators don’t get to choose which 10% stay in-house.  That’s done randomly, through a lottery system.  Now we have both a robust secondary market, and a strong incentive for originators to make quality loans.  A good balance of risk and reward.  One reason Canadian banks originated solid mortgage loans is that a high percentage of those loans stay in-house.  Consider the toxic asset metaphor: it’s one thing to produce toxic waste if you know you can dump it all someone else’s yard; quite another to produce it if you know you might have to keep it in your living room. 

If — and only if — we enacted the first rule, I’d suggest another, also borrowed from the Canadians: no fixed-interest rate loans longer than five years.  This redistributes some risk from the originating banks to the borrowers.  If a bank is caught in an interest rate squeeze because of a long-term fixed rate, the external effects are potentially much worse than if you or I are.  If banks have to hold some loans in-house, we want to make sure they don’t go under when interest rates increase.

Anyway, those are my ideas.  What are yours?

There are several potential responses, of course, to the difficulties of welfare-maximization presented by collective action.  Most Chicagoan, perhaps, is to recognize that collective action is an inadequate instrument, and to overcome it by the allocation of private property rights in the resource instead.  This bottom-up approach works very [...]]]> Today in Copenhagen, as the prospects for a workable climate change treaty grew very dim, President Obama said, “our ability to engage in collective action is in doubt.”  This couldn’t have been a revelation for a man who taught law at Chicago.  I think I could make a pretty good argument that what has made Chicago Chicago during the past half century is the attention its faculty has paid to the enormous obstacles to welfare-maximizing collective action in the management of a resource. 

There are several potential responses, of course, to the difficulties of welfare-maximization presented by collective action.  Most Chicagoan, perhaps, is to recognize that collective action is an inadequate instrument, and to overcome it by the allocation of private property rights in the resource instead.  This bottom-up approach works very well in many instances, but not very well between sovereign nations with regard to atmospheric emissions.  Among other reasons, attempting to create a system of allocation is itself beset by the collective action problems inherent in the management of the resource.

Another response to the collective action problem is to simply impose restrictions from above.  State-planned economies (including, in some respects and at some times, the United States) do this, in some cases disastrously, in some cases pretty well.  But there is no authority that can impose restrictions from above on sovereign nations with regard to atmospheric emissions. 

What we have, then, is the tragedy of commons without the usual means of overcoming it — dispensing with collective action.  If alternatives to welfare-maximization through collective action aren’t possible, what is left, other than collective action?  Not much.  That may be why even a man who taught at Chicago has pinned his hopes to that unlikely instrument. 

In my natural resources law seminar last semester, I had the students play a typical ‘tragedy of the commons’ game, in which a common resource was sufficient for the group to survive, but only if each member acted against her own strict self-interest, and someone was willing to incur the transactions costs associated with coordinatiing a group welfare-maximizing allocation system.  As Hardin would have predicted, the resource was soon destroyed and the students starved.  Something a student said to me then struck me as I watched President Obama’s speech today: “what we really needed was you to come in here and show us what we should do.”

In other words, what they needed — if they were to succeed collectively — was a deus ex machina to appear and, with the force of logic and moral suasion, persuade them to overcome their collective action problem.  It reminded me of Sophocles’s Philoctetes: even the good-hearted Neoptolemus cannot persuade Philoctetes give up satisfying his justifiable grudge against the Greek army at Troy, and by doing so make himself and the rest of the Greek army better off.  Only the last-minute intervention of Heracles, now a type of deity, can persuade him.  

Perhaps that is what President Obama is trying to be for the Copenhagen talks today.  It seems unlikely to work — after all, what makes the deus ex machina a deus is that it exists apart from the petty interests of the group.  President Obama will not be heard other than as the voice of one member of the group — a member which the others would rightly regard with suspicion, since it is likely to pursue its own self-interest.  I respect President Obama for trying, but I’m pessimistic.  Try as he might, he’s Neoptolemus, not Heracles.

Sorry if this sounds dramatic (so to speak), but consider this: one definition of tragedy is man’s realization that he can never be a god; that not matter how much he struggles, he is trapped within the bounds of human existence.  If that’s true, then if, as seems likely, we see President Obama fail today to successfully play the deus ex machina and persuade the individual nations from adherence to their own strict self-interest, then we will be witnessing a type of tragedy in the traditional sense of the word.  The inability of any one member of the group to assume a role above his self-interested existence, even if that is what he intends to do – in other words, to become a deus — would not surprise Sophocles.  But it’s sad to witness as member of the chorus.

Bunk shows how it’s done. 

I love showing this clip to my students.  It’s a great antidote to the myopia that develops from breathing too much of the rarified air of Supreme Court opinions.  Warning: every third word is m@#$!%$*&^!r.

Do you have any clips you love to show your students — interrogations or otherwise?

The answer, of course, is Woodsy. 

A fanciful owl

It’s unhealthy, but I’ve spent at least a few hours of my limited earthly existence pondering the so-called Woodsy Owl-Smokey Bear Act of 1974 and its implementing regulations.  Maybe it’s because I teach natural resources law.  Maybe it’s because I had recurrent nightmares about Woodsy as a kid (those huge eyes!).  Maybe it’s because I’m seriously screwed up.

In any case, in addition to defining Woodsy as described above, the Act defines “Smokey Bear” as “Smokey Bear” (no further description needed, apparently) and “Secretary” as the Secretary of Agriculture (sadly, the statute does not say what color [...]]]> Here’s a quiz: who is the creature defined by 16 United States Code sec. 580p(1) as a “fanciful owl” who wears forest green “slacks,” a brown belt, and “a Robin Hood style hat” with a red feather.  

The answer, of course, is Woodsy. 

A fanciful owl

It’s unhealthy, but I’ve spent at least a few hours of my limited earthly existence pondering the so-called Woodsy Owl-Smokey Bear Act of 1974 and its implementing regulations.  Maybe it’s because I teach natural resources law.  Maybe it’s because I had recurrent nightmares about Woodsy as a kid (those huge eyes!).  Maybe it’s because I’m seriously screwed up.

In any case, in addition to defining Woodsy as described above, the Act defines “Smokey Bear” as “Smokey Bear” (no further description needed, apparently) and “Secretary” as the Secretary of Agriculture (sadly, the statute does not say what color slacks the Secretary of Agriculture wore, or his preferred style of hat.  That would have been awesome.).

A few questions:

Why did Congress feel the need to define Woodsy as a “fanciful” owl?  Was it concerned that the statute might be overbroad, unintentionally encompassing real owls who wear green slacks and hats with feathers?

The Act claims that the United States government owns the phrase, “Give a hoot, don’t pollute.”  Later, the Department of Agriculture claimed rights in a second phrase: “Lend a Hand, Care for the Land.”  Did the Department of Agriculture exceed the scope of its authority under the Act?

Who came up with a lame saying like ”Lend a Hand, Care for the Land,” and did they notice it doesn’t scan?

What circumstances compelled the Department to state in its Smokey Bear Guidelines  (March 2009 at 13) that “The costumed bear should not force itself on anyone”?

Unfortunately, a man who might have been able to shed some light on these questions has died.  Herbert Bell, who died at age 90 last week, created Woodsy with a group of forest rangers.  He also marketed Smokey, Lassie, and Mr. Magoo.

According to his obituary in the New York Times, Mr. Bell considered using a trout instead of an owl.  A trout.  Now that would have caused nightmares . . . . but it could have been a great statute.

Tradeable carbon emissions allowances are an example of the latter.  There’s a lot to like in the cap-and-trade programs proposed under the Waxman-Markey and Kerry-Boxer bills.  I hope some robust version of them passes and becomes law.  But one sticky issue that needs to be resolved is how [...]]]> If the last two years of American economic life have demonstrated anything, it is that property rights are not static.  Sometimes things that were once private property become public property (see, e.g., Motors, General).  Sometimes things that were once public property become private property, then become public property again, before they presumably become private property again (see, e.g., Mae, Fannie).  And sometimes things that were once considered inherently communal and thus inamenable to private property rights at all, become divided and privatized (see,e.g., the air).

Tradeable carbon emissions allowances are an example of the latter.  There’s a lot to like in the cap-and-trade programs proposed under the Waxman-Markey and Kerry-Boxer bills.  I hope some robust version of them passes and becomes law.  But one sticky issue that needs to be resolved is how initial allowances to fill airspace with carbon gases should be allocated.  Options include auctioning off all of the allowances, giving the allowances to existing carbon producers, and, most politically palatable, something  in between – some mixed proportion of free allocations and auctions.

Economist Robert Stavins, in the Coasean tradtion, has insightfully argued that  (with some caveats, including that transaction costs in this cap-and-trade program are similar to the transaction costs in others) the initial allocation of allowances doesn’t matter in most significant ways:  it will have no effect on the distribution of allowances after trading, and will have no effect on the total magnitude of emissions and their attendant social costs.

But there is another factor economists have not addressed, that could effect the total magnitude of emissions and their attendant social costs, and that may well depend in part on the method of initial allocations: compliance.

Law Professor Christine Parker and political scientist Peter May, among others, have demonstrated that compliance with business regulation is highest when the regulated businesses believe that the regulatory regime is fair.  Lower levels of compliance reduce the effectiveness of the regulation in producing the desired outcome, and increase the costs of achieving it.  In the world of carbon emissions, this would mean a higher total magnitude of emissions and a reduced benefit to the public through the higher costs required to achieve them.

My research into Icelandic fisheries suggests that in moving natural resources from communal to private property through cap and trade programs, initial allocations of rights do have an important effect on the perceived fairness of the regulatory regime, and thus on the willingness of the regulated to comply with it.

In Iceland, the government decided to protect fish stocks by freely allocating tradeable fishing rights and implementing catch quotas.  Permits were issued to fishing vessel owners based on their average catches during a three-year test period.  New entrants to the industry must now buy their way in by purchasing or leasing rights from others through the Icelandic Quota Exchange.  Although the system has been successful in reducing the overall catch, the perception that it is unfair has led to open defiance.  In an extraordinary case before the Icelandic Supreme Court, one fishing company did openly what many apparently do quietly — defied the system on the grounds that it was unfair.  

Transactions costs, of course, are inevitable, but it is not transaction costs that have produced resistance to the Icelandic system.  Rather, resistance is itself is a type of transaction cost, broadly construed, produced by the perceived unfairness of the initial allocation of rights.  In other words, the initial allocation of rights does indeed effect the overall effectiveness of a private property system. 

There has been considerable uproar over the potential free allocation rights to current carbon emissions producers.  Whether or not, as a matter of classical economic theory, the initial allocation of rights should effect the overall effectiveness of the program, the perception of fairness or unfairness will probably effect compliance with the system, and that in turn will effect its overall effectiveness.  It is important, therefore, for policy makers to bear in mind that the perceived fairness of initial allocations of property rights does indeed matter.

I was watching the NFL Vikings carve up the Bears yesterday, trying to decide what to post about first, and my eyes were drawn not to quarterback Brett Favre, running back Adrian Petersen . . . or even the freak who dresses like a viking and leads cheers inside the Metrodome, the Vikings’ domed stadium.  I kept looking at the shots of the stadium itself, and thinking about two recent court orders. 

One was issued last Monday, lifting an injunction on the previous week’s sale by auction of the 94,000 square foot, 80,300 seat Pontiac Silverdome, along with an adjacent fieldhouse and 127 acres of land.  There were four bids.  The winning bid? [...]]]> I’m very happy to be back adding my two cents to Concurring Opinions.  Thanks very much, Dan, for the invite, and Sarah, for the introduction. 

I was watching the NFL Vikings carve up the Bears yesterday, trying to decide what to post about first, and my eyes were drawn not to quarterback Brett Favre, running back Adrian Petersen . . . or even the freak who dresses like a viking and leads cheers inside the Metrodome, the Vikings’ domed stadium.  I kept looking at the shots of the stadium itself, and thinking about two recent court orders. 

One was issued last Monday, lifting an injunction on the previous week’s sale by auction of the 94,000 square foot, 80,300 seat Pontiac Silverdome, along with an adjacent fieldhouse and 127 acres of land.  There were four bids.  The winning bid? $583,000.  Total.  After auction fees, the current owner — the City of Pontiac, Michigan — will net about $430,000.  When professional sports tenants such as the Detroit Lions left, a property that cost $56 million to build was rendered practically worthless.  In fact, Pontiac was prepared to accept any bid for the property, since maintaining it was costing the City $1.5 million per year. 

The other order was issued in September by Judge Berrigan of the U.S. District Court for the District of Eastern Louisiana, ordering St. Bernard Parish not to interfere with the construction of a mixed market-rate and low income housing project.  The Parish, faced with an influx of low income tenants, had refused to issue building permits for the project, imposed a moratorium on building apartment complexes, and passed an ordinance making it illegal to rent to anyone other than a blood relative without special permission.  The New Orleans area faces an extreme shortage of low income housing, despite the population diaspora from the area generally.  Most of the housing destroyed by Katrina was low income. 

 There’s a lot to ponder about the Silverdome sale:  That there were three lower bids.  That the winning bid was less than the minimum salary for two NFL rookies.  That economically, everything Michigan touches seems to dissolve. 

There’s also a lot to ponder about the Louisiana case:  The race and class issues implicit in the development of low income housing.  The institutional role of courts as a check on the popular will.  The possibility that some of those in need of that housing once spent time sheltering in a hellish environment inside yet another domed stadium.  

But as a law professor who teaches property, I was also struck by was the extraordinary difference in power between commercial and residential tenants.  In Pontiac, the lack of willing commercial tenants for the Silverdome reduced the value of the property to a nominal amount.  In St. Bernard Parish, despite an abundance of ready and willing residential tenants, a court order was required to get a what should be a profitable property developed.  This week I’m teaching my students about the gradual importation of contract law concepts into the law of leasehold estates.  I tell them that those contract law doctrines tend to protect residential tenants, recognizing what is often unequal bargaing power between residential tenants and lessors.  They are less protective of commercial tenants, because commercial tenants often have as much bargaining power as lessors.

Watching the Vikings on Sunday, oddly enough, brought that lesson home.

In 1948, a graduate of an undistinguished and then defunct law school, whose parents had been born in slavery, stood before the Supreme Court and, against the urging of some of the greatest legal minds of the 20th century, made an argument that had been unanimously rejected by state and federal courts, including the Supreme Court: that court enforcement of private racially restrictive covenants constituted state action and, [...]]]> What a joy it has been blogging here at Concurring Opinions. I thank Dan Solove and the rest of the crew for the opportunity, and I thank the commenters for the great e-conversations that have followed my posts. For my last post, I want to enter the last installment in the Drop Everything and Emulate series.

In 1948, a graduate of an undistinguished and then defunct law school, whose parents had been born in slavery, stood before the Supreme Court and, against the urging of some of the greatest legal minds of the 20th century, made an argument that had been unanimously rejected by state and federal courts, including the Supreme Court: that court enforcement of private racially restrictive covenants constituted state action and, as such, was a violation of the Equal Protection Clause of the 14th Amendment.

Against all odds, he won, and Shelley v. Kraemer became a guidepost for the civil rights revolution that followed. Less than two years later, he was dead, and today is rarely remembered.

George Vaughn was born in 1885 in Kentucky. Little seems to be known about his early life. He earned an undergraduate degree from Lane College and a law degree from Walden University, both in Tennessee. Walden was founded by white missionaries as a school for African-Americans, but began to fail at about the time Vaughn attended, graduating just one law student in 1911. By 1925, Walden University was no more.

Vaughn served as an officer in the segregated army in World War I, then opened a law practice in St. Louis. In St. Louis, he became active in Democratic politics. He ran for one office – city alderman – and lost.

Vaughn attended a conference hosted by the NAACP regarding litigation strategies against racially restrictive covenants. (Leland B. Ware, Invisible Walls: An Examination of the Legal Strategy of the Restrictive Covenant Cases, 67 Wash. U. L. Q. 737 (1989). Ware’s excellent article is the source for much of the information that follows. If this was a law review article rather than a blog post, it would be full of ‘ids’ from here on out). Charles Houston and Thurgood Marshall urged the attorneys to challenge plaintiffs in such cases to prove that the defendants were Black, to introduce studies showing the sociological and economic effects of restrictive covenants, and to argue that the covenants were invalid under the common law doctrine of changed circumstances. They urged the attorneys not to rely on the enforcement-as-state-action argument, since it had failed repeatedly.

In 1945, an African-American man named J.D. Shelley bought a house on Labadie Avenue in St. Louis. The house was purportedly subject to a racially restrictive covenant that applied to the neighborhood (I say purportedly because, as Carol Rose has pointed out, the covenant was probably invalid as a matter of the common law of real covenants, for reasons unrelated to its racial restrictions). The neighbors sued to evict the Shelleys, and the Shelleys went to George Vaughn for help.

Vaughn used a strategy similar to the one urged by Houston and Marshall, but also raised the enforcement-as-state-action argument. He won at trial court on the ground that the restrictive covenant was defective as a matter of common law, but lost at the Missouri Supreme Court.

At the same time that Vaughn was bringing his case, other racially restrictive covenant cases were also proceeding, including Houston’s own case, Hurd v. Hodge, and one that Marshall would eventually take to the Supreme Court as a companion to Shelley, McGhee. The NAACP was attempting to coordinate the cases, hoping to pair the right case and the right attorney and take it to the Supreme Court. In the opinion of the NAACP, Shelley was not the right case, and Vaughn was not the right attorney. He was considered relatively unsophisticated, and some doubted his ability to persuade the Supreme Court.

Nonetheless, without consulting the NAACP, Vaughn filed a petition for a writ of certorari with the Supreme Court, which was granted. When a none-too-pleased Marshall found out, he quickly filed a petition in the McGhee case, which was paired with Shelley, as was Houston’s Hurd case.

At the Supreme Court, Vaughn argued first for the petitioners. Unlike Marshall and Houston, Vaughn didn’t focus his argument on economic and sociological data about the effects of racially restrictive covenants. He argued that court enforcement of them constituted state action. Racially restrictive covenants were, he told the Court, “the Achilles’ heel” of the American dream. He rapped his knuckles slowly on the table beside him and said, “the Negro knocks at America’s door and cries, ‘Let me come in and sit by the fire. I helped build the house.’” The question, from Vaughn’s viewpoint, was whether courts, as state actors, could hold the door closed.

Marshall is often credited with winning Shelley v. Kramer today, and perhaps justifiably so. His use of economic and sociological data to support Constitutional arguments became a hallmark of the civil rights litigation that followed, most famously in Brown v. Board of Education. But to me, it is Vaughn’s undaunted and courageous insistence that courts, too, were state actors bound by the limits of the 14th Amendment, that is the most powerful (and controversial, to this day) conclusion from the Shelley case.

I like introducing my students to Vaughn for so many reasons. Students at William Mitchell have often taken non-traditional paths to law, and they, like Vaughn, attend a school whose ‘ranking’ does not match its quality. He was a wise counselor for his community, a man to turn to in times of trouble. And his quiet insistence on basic principles helped launch a revolution in American law for which we all owe him a debt of gratitude.

Every once in a while, God inexplicably smiles upon law professors. To wit:

Driver of school bus full of middle school basketball players hits deer. Driver doesn’t stop. Deer gets caught beneath bus. Deer ruptures fuel line. Bus, on fire, pulls into school parking lot, and explodes.

Behold.

Best of all: no one was hurt.

One of the most pernicious effects of the mortgage crisis has been the eviction of blameless tenants. Leases are usually terminated by foreclosure. Tenants who have never missed a rent payment, and who have no idea that their landlord has not been applying rent payments to their mortgage obligations, suddenly face eviction — often with no notice.

It is difficult to overstate the trauma of the eviction. Tenants are not only turned out into the streets. Often their personal property is put on the curb or thrown into dumpsters. They don’t just lose their homes — they can lose everything they own. Passing rainstorms or scavengers can turn a lifetime’s worth of work into nothing. Children in particular can [...]]]>

One of the most pernicious effects of the mortgage crisis has been the eviction of blameless tenants. Leases are usually terminated by foreclosure. Tenants who have never missed a rent payment, and who have no idea that their landlord has not been applying rent payments to their mortgage obligations, suddenly face eviction — often with no notice.

It is difficult to overstate the trauma of the eviction. Tenants are not only turned out into the streets. Often their personal property is put on the curb or thrown into dumpsters. They don’t just lose their homes — they can lose everything they own. Passing rainstorms or scavengers can turn a lifetime’s worth of work into nothing. Children in particular can be traumitized by seeing parents rendered powerless, by losing their possessions, and by the fear of the unknown. Violence is a constant threat.

The problem is so pervasive, and so normatively objectionable, that county sheriffs upon whom the burden of eviction falls have been refusing to carry out the evictions under some circumstances. Most famously, Thomas Dart, the sheriff of Cook County, Illinois, unilaterally imposed a moratorium on the eviction of renters in foreclosed properties, over the howling objections of the banks.

I have written previously, and am writing still, about what happens when legal institutions face a divergence between the legality and social acceptability of behavior. Generally, institutions of enforcement don’t enforce the law; they enforce the limits of acceptable deviance around the law (think speed limits). When they are called upon to enforce the law in a manner that conflicts with standards of social acceptability, it is often the institutions that give way rather than the standards.

It is heartening, therefore, but not entirely surprising, to see that the now re-nationalized Fannie Mae has decided to stop evicting tenants in foreclosed properties.

Fannie Mae has urged private mortgage holders to follow suit, but has met with little enthusiasm. Banks don’t want to become property managers. They want to sell foreclosed properties as quickly and cleanly as possible.

But the question we should be asking is, between the lender and the tenant, who should bear the risk that a rental property will be foreclosed upon?

To answer that question, we need to answer two others: between the lender and the tenant, who is better informed about the risk of foreclosure? And, between the lender and the tenant, who will suffer greater harm in the event of foreclosure?

Obviously the lender is in a better position to assess the risk of foreclosure. The lender, presumably, is making that risk assessment before lending. Since the lender is better placed to assess the risk that a rental property might be foreclosed upon, it seems both efficient and fair that the lender should bear that risk.

The second question might simply be re-phrased as: risk of what? For the bank, the risk is that it is saddled with the responsibility of property management, and that it might be more difficult to sell the property. For the tenant, the risk is eviction and, possibly, loss of personal property and homlessness. It seems the relative harm to the tenant is higher, and it may well be true that the absolute economic harm to society in general is greater when blameless tenants are evicted because of foreclosure, because eviction of blameless tenants has significant negative externalities for neighborhoods and cities.

It is true that the costs of risk allocated to lenders will be passed on to mortgagees and, ultimately, renters, but that may eliminate low quality mortgagees. In short, it seems to me, that lenders should accept the risk that they may end up managing the rental properties they finance, if they do so unwisely.

As I stumbled through it, my classmates giggled at the absurdity of the facts. For those who don’t remember, the facts are these: in 1642, Jane had leased land from Paradine, with rent owing at “the four usual feasts.” Shortly thereafter, the land was occupied by [...]]]> One of my most vivid memories of my 1L year was being called upon to present Paradine v. Jane in my property class. I had escaped my stern professor’s lottery system for almost the entire semester. Nervously briefing the case, I discovered that it was (a) written in clipped, indecipherable, Shakespearian English and (b) about as relevant to my life as the second law of Hammurabi. Naturally, I was called upon to explain it.

As I stumbled through it, my classmates giggled at the absurdity of the facts. For those who don’t remember, the facts are these: in 1642, Jane had leased land from Paradine, with rent owing at “the four usual feasts.” Shortly thereafter, the land was occupied by an army that had “invaded the realm,” commanded by the ruthless Prince Rupert. Jane did not regain possession of the land for 3 years. When he regained possession, Paradine sued him for back rent. Jane refused to pay, arguing that he was not liable for rent for land he couldn’t use and possess through no fault of his own.

The court found for Paradine, holding that the lease included an implied covenant to pay rent, come hell, high water, or invading princes. The court reasoned that Jane could have avoided liability under such circumstances by contracting to avoid it; that risk allocation was presumably reflected in the price of the lease; and that since Jane stood to take the upside of unanticipated profits, he must also assume the downside of unanticipated losses. The case is often taught in contracts courses as an impossibility case, but the facts struck me as just a bit unlikely to resemble any issue I might confront in practice.

My doubts about the continuing relevance of Paradine v. Jane were erased by the attacks on September 11, 2001. On that day, a contemporary Prince Rupert attacked again. At the WTC, lessees were deprived of use and possession of land through no fault of their own, and would be for years. As in Paradine, the question arose: who should bear the cost?

Paradine and the WTC attacks are, I now believe, ideal vehicles for teaching several critical concepts about the roles property and contract law play in society.

To see how, it helps to examine the terms of the lease between the owner of the WTC properties, the Port Authority of New York and New Jersey, and their lessee/sublessor, Silverstein Properties. In July, 2001, the Port Authority entered into a 99-year net lease with Silverstein for WTC building 1, 2, 4 and 5. The terms of the lease required a $600M up-front payment, followed by rent of $102M per year, plus a percentage of revenue. The lease provided that Silverstein would be responsible for restoring the buildings in the event of casualty, and that rent would not abate during the restoration period.

The deal nearly fell apart several times during negotiations, in part because Silverstein was required to obtain sufficient insurance to meet its obligations. At first, students usually think that Silverstein got the short end of the stick. But the price he paid reflected carefully planned risk allocation.

And when disaster struck on September 11, the duties and obligations of the parties were relatively clear, and the web of risk allocation was relatively stable. It’s true that there have been many disputes – including, most famously, whether the attacks constituted one or two “events,” and therefore whether Silverstein was entitled to $3.5B or $7B from the insurers – and several modifications to the terms of the lease as rebuilding commences. Silverstein eventually settled with the insurers for $4.6B. In 2006, the Port Authority reacquired rights to WTC 1 and 5 from Silverstein, while Silverstein acquired rights to WTC 3. After several false starts, the Port Authority and Siverstein agreed to a framework and timeline for reconstruction of the complex, as well as construction of a memorial and the proposed Freedom Tower.

But, on the whole, the system of duties and obligations designed through our property and contract law traditions absorbed the disaster and allowed the social and economic system to continue working. The expectations of the parties were reflected in the bargain they struck in July, 2001, including the allocation of risk, and those expectations were enforced. Because it was foreseeable that those expectations would be enforced, the parties took sufficient measures to insure that risk. As horrific as the attacks were, the social and economic duties defined through property and contract law held. The system absorbed the shock and moved on.

There’s a beauty in that system, because it is the product of hundreds of years of careful, thoughtful and democratic human endeavor. It’s undoubtedly wishful thinking, but I like to imagine Al Qaeda frustrated. They planned a massive, ambitious attack for years. They sacrificed 20 of their most ardent adherents. They pulled off a once-in-a-lifetime spectacular blow, toppling WTC 1 and 2, in the economic hub of the United States, murdering thousands of innocent people. And what result? Economic collapse? Civil war? Rioting? None of the above. When we needed it most, law worked. It took Al Qaeda’s worst blow and shook it off.

To my mind, where we have gone wrong in fighting Al Qaeda is where we have decided that our legal traditions are inadequate to the task of coping with this “new reality.” Some have claimed that we must operate under a new system that permits us, among other things, to listen to private conversations without warrant, to detain people indefinitely without charge or trial, to torture, to act in “pre-emptive self-defense.” The lesson of Paradine v. Jane, and of the WTC leases, is that a thoughtful, predictable and just legal system can absorb almost any blow, and preserve the social bonds upon which it is based.

The disjointed and ad hoc reaction of the Bush administration to this mortgage crisis stands in stark and disappointing contrast to the systemic reaction of the Roosevelt administration to the last similar mortgage crisis. Henry Paulsen seems to have been assigned the role of Mary Bailey during the bank run scene from It’s a Wonderful Life: rushing into the room with a wad of cash, but with little thought of the future.

The Obama administration would be wise to approach the crisis much as the Roosevelt administration did – as a set of difficulties each requiring a specific institutional tool dedicated to its correction, which should function together as a whole to create a new (and hopefully this time, lasting) housing finance superstructure.

To contrast the [...]]]>

The disjointed and ad hoc reaction of the Bush administration to this mortgage crisis stands in stark and disappointing contrast to the systemic reaction of the Roosevelt administration to the last similar mortgage crisis. Henry Paulsen seems to have been assigned the role of Mary Bailey during the bank run scene from It’s a Wonderful Life: rushing into the room with a wad of cash, but with little thought of the future.

The Obama administration would be wise to approach the crisis much as the Roosevelt administration did – as a set of difficulties each requiring a specific institutional tool dedicated to its correction, which should function together as a whole to create a new (and hopefully this time, lasting) housing finance superstructure.

To contrast the Bush and Roosevelt approaches, it is useful to recall the ingenious public/private hybrid housing finance system the Roosevelt administration developed. Consider:

The Roosevelt Administration recognized that — just as today — credit was frozen for home lending institutions. It empowered the Federal Home Loan Bank (FHLB) to provide loans to these institutions, so that they in turn could lend to home buyers. The greater availability of loans from home lending institutions could lower the cost of borrowing for home buyers. More home buyers could create demand in the housing market and slowly raise home values (which had plummeted). Rising home values could allow some homeowners to refinance their mortgage loans to avoid foreclosure.

But, the Roosevelt Administration realized, many delinquent mortgages could not be saved by refinancing, if home owners had to wait for home values to rise. So, it created the public/private hybrid Home Owners’ Loan Corporation (HOLC) (financed partly publicly, and partly through tax-favored private investment). This institution had a simple but crucial mission: buy delinquent mortgages from home lending institutions, then work with home owners to refinance them on less risky and more responsible terms. As a result, banks were able to sell mortgages they most wanted to be rid of, reducing their bad debt and increasing their liquidity. For homeowners, short-term, adjustable rate, and balloon mortgages were converted to long-term, fixed rate mortgages. Borrowers were required to present proof of sufficient income relative to their debt to qualify for the restructured loans.

To encourage similar responsible lending standards by home lending institutions, the Federal Housing Administration (FHA) offered to insure mortgages that met its quality and risk standards. The FHA required that the loans it insured were fixed-rate, long-term, and had a minimum loan-to-value ratio of 80% (in other words, a 20% down payment was required of home buyers).

The creation of the Federal National Mortgage Association (now known as Fannie Mae) was a masterstroke. The FNMA created a secondary market in which home lending institutions could sell mortgages that met FNMA quality standards. In other words, the FNMA would buy mortgage loans from home lending institutions at some percentage of their present value. The lenders would receive a one-time cash payment and be relieved of any risk from the home buyer’s potential default. That risk was transferred to the FNMA. Not only did banks receive a great incentive to increase their home lending activity, the FNMA was able, through its purchase standards, to impose quality standards that lasted for decades.

The system as a whole created the structure that became the invisible backbone of the American dream. The FHLB provided liquidity, the HOLC purchased and refinanced delinquent mortgages, the FHA insured quality mortgages, and the FNMA created a secondary market on which quality mortgages could be sold, increasing lender liquidity, removing risk, and standardizing quality.

The Bush administration, by contrast, seems to have empowered Henry Paulson to spend $700 million as he sees fit. To date, he seems unable to decide how best to proceed. At first we were told the money was to be used to buy bad debt, which was once half of HOLC’s function. No mention was made of the other half of HOLC’s function — refinancing delinquent mortgages. Now, Paulson seems to have reversed course, intent instead on infusing lenders with liquidity, similar to the function once provided by the FHLB, but directed at commercial banks rather than home lending institutions. The FDIC has stepped out of its traditional mission to propose a system for refinancing delinquent mortgage loans, the other half of HOLC’s function, but it has been rebuffed. And the FNMA, privatized for 40 years, rather than being a tool available to help solve the crisis, became one of its earliest victims.

In short, Roosevelt’s administration either created or empowered a series of housing finance institutions, each designed to address a specific need revealed by the mortgage crisis, and to work in tandem with each other to create a new housing finance superstructure that allowed the market to function while imposing, and thus guaranteeing, quality standards. Let’s hope the Obama administration can do the same.

It’s a simple question, but answering it has ripped entire nations into pieces, including the United States. It was U.S. Senator Henry Clay, arguing that abolishing slavery would be a massive taking that would require just compensation to the slave-owners, who said, “that is property which the law declares to be property.”

Once they realize the context of his statement, most students disagree with Clay. But that begs the next question: if the law doesn’t give us the final word on rights, including [...]]]> Here’s a question I pose to my property students when we begin to study takings: is that property which the law declares to be property? Or, are there some things that can never be property, no matter what the law says?

It’s a simple question, but answering it has ripped entire nations into pieces, including the United States. It was U.S. Senator Henry Clay, arguing that abolishing slavery would be a massive taking that would require just compensation to the slave-owners, who said, “that is property which the law declares to be property.”

Once they realize the context of his statement, most students disagree with Clay. But that begs the next question: if the law doesn’t give us the final word on rights, including property rights, then what does?

I then take the opportunity to introduce them to a dapper young attorney who argued that that certain fundamental rights inhere in man – including property rights, and in particular the just allocation of property rights in natural resources.

He was the first attorney of non-European heritage to practice law in South Africa. He later returned to his home country, India, where he became an advocate and leader in a struggle for independence, democracy and the fair allocation of property rights. A critical turning point in the struggle was a protest against the monopolization of an extremely important natural resource in his country: salt.

His famous Salt March to the Sea, which embodied his philosophy of civil disobedience and nonviolence, became the inspiration for Martin Luther King Jr.’s strategy. We study the Fair Housing Act, of which Martin Luther King was an advocate. It was passed one week to the day following Martin Luther King’s assassination, to honor him. In that way, I tell them, Gandhi’s legacy is so profound that it reaches all the way to this course to you.

Gandhi himself had been assassinated 20 years before Martin Luther King. How much of an impact for good did this lawyer have on the world? Consider the words of Prime Minister Nehru, informing the people that Gandhi had been killed: “The light has gone out of our lives and there is darkness everywhere. . . . We will not run to him for advice, or to seek solace from him, and that is a terrible blow.”

It’s far too much, of course, to ask students to be a Gandhi. We can’t all be the light of other people’s lives. But we can , occasionally, work for justice. And an attorney can be someone to whom others run for advice and solace, a wise counselor. That’s part of the tradition of our profession, and Gandhi embodied it.

Given the enormous complexity of administering a state wide election, it is remarkable that we generally depend upon an army of volunteers — often elderly volunteers, at that — to get it done right on a single day (although early voting is changing that). The Florida fiasco in 2000 pulled back the curtain on our election adminstration wizardy, and revealed a lot of confused and bumbling people operating the machinery. Bush v. Gore was, in the view of Richard Posner, the Supreme Court’s awkward attempt to shut the curtain.

The truth is that in every election, some votes don’t count or are counted wrongly. Usually the margin between the candidates is greater than the margin of error. But when that was not [...]]]>

Given the enormous complexity of administering a state wide election, it is remarkable that we generally depend upon an army of volunteers — often elderly volunteers, at that — to get it done right on a single day (although early voting is changing that). The Florida fiasco in 2000 pulled back the curtain on our election adminstration wizardy, and revealed a lot of confused and bumbling people operating the machinery. Bush v. Gore was, in the view of Richard Posner, the Supreme Court’s awkward attempt to shut the curtain.

The truth is that in every election, some votes don’t count or are counted wrongly. Usually the margin between the candidates is greater than the margin of error. But when that was not true in Florida in 2000, and it was revealed that every doesn’t count, never had, and never would, the nation as a whole was shaken. The notion that every vote counts was so fundamental to our sense of political identity, that the revelation that it wasn’t true provoked a national identity crisis. A common, bewildered refrain of the time was, “Is this really America?”

Yes, it was. And is, as can be seen today here in Minnesota, where hand re-counting of 2.5 million ballots has begun in the race between Al Franken and Norm Coleman for U.S. Senate. As of this writing, the margin between them is approximately 160 votes.

Much has been written about the dangers of voter suppression, voter fraud, and potential election corruption.

A justifiably less discussed but still vexing problem, is the fact that some voters just aren’t very competent at filling out a ballot, while others are . . . welll . . . nuts. Minnesota’s ballot judges are going to have to try to determine the intent of these people, and it isn’t easy. Minnesota Public Radio has posted some ‘challenged’ ballots — ballots either Coleman or Franken want reviewed by ballot judges to try to determine the voter’s intent. Try it for yourself. Or, watch the recount live. But remember, whoever wins, don’t blame me: I voted for lizard people.

This is Oliver Tambo, the second example of a lawyer whose story I like to introduce to my property students. They’ve heard of his more famous law partner, but few have ever heard of him. Here’s what I tell them:

Oliver Tambo was an attorney who helped lead the struggle against apartheid in South Africa. Because of that, he was forced to live in exile for 30 years. When he returned home, he played an important role in the decision to pursue peaceful reconciliation with, rather than vengeance against, his former oppressors.

Tambo had already joined the African National Congress before starting a little two-person law practice in the 1950s, but his experience in practice was critical to the dedication he felt to [...]]]>

This is Oliver Tambo, the second example of a lawyer whose story I like to introduce to my property students. They’ve heard of his more famous law partner, but few have ever heard of him. Here’s what I tell them:

Oliver Tambo was an attorney who helped lead the struggle against apartheid in South Africa. Because of that, he was forced to live in exile for 30 years. When he returned home, he played an important role in the decision to pursue peaceful reconciliation with, rather than vengeance against, his former oppressors.

Tambo had already joined the African National Congress before starting a little two-person law practice in the 1950s, but his experience in practice was critical to the dedication he felt to the struggle. His office was deluged with land disputes arising from a new government policy of taking land owned by Black African families and forceably relocating them to Bantustans, essentially desolate reservations for Black Africans.

He said:

“Weekly we interviewed the delegations of peasants who came to tell us how many generations their families had worked a little piece of land from which they were now being ejected… To live in the wrong area had become a crime… Our buff office files carried thousands of these stories and if, when we started our law partnership, we had not been rebels against apartheid, our experiences in our offices would have remedied the deficiency.’

The “we” he referred to was him and his partner. Their little 2-partner law office was called Mandela & Tambo (you can see the name in reverse on the window). His partner (seen in the picture) was an attorney who, unlike Tambo, needs no introduction.

Oliver Tambo died just 2 years after returning to South Africa from his 30-year exile, and a year before his old law partner, who had been imprisoned while Tambo was exiled, was elected President.

Few people outside of South Africa know his name today, which is how he preferred it. Nelson Mandela was, and is, a brilliant public figure. Tambo was quieter.

If you go to South Africa today, you will probably arrive at Oliver Tambo International Airport. If you study law at the University of Pretoria today, you will study it in the Oliver Tambo Memorial Law Library, which houses the renowned Center for Human Rights. Every year, his life is celebrated with a festival in his hometown. And this year, after the death of his widow, this beautiful moment was erected in their honor.

If you sometimes work and make sacrifices for justice, as you are now well on your way to being uniquely equipped to do, you will join Oliver Tambo in a long quiet tradition of your profession, and you yourself will become a living monument to the ideals for which he lived and died.

What the transcripts demonstrate is that the United States Department of Justice orphaned two young children because it lost a reckless gamble – and it deliberately used perjured testimony to do it.

Let’s back up. Julius Rosenberg was a spy in service of the Soviet Union. Anyone who denies that fact is deluded.

Julius Rosenberg recruited several others to obtain military secrets that he passed to the Soviet Union. His network passed important information about conventional weapons to the Soviets.

Julius’s wife, Ethel, knew that Julius was a spy. [...]]]> The National Security Archive and Professor David Vladeck at Georgetown University Law Center have done us a great service in securing the release, at long last, of some of the Grand Jury transcripts in the Rosenberg case.

What the transcripts demonstrate is that the United States Department of Justice orphaned two young children because it lost a reckless gamble – and it deliberately used perjured testimony to do it.

Let’s back up. Julius Rosenberg was a spy in service of the Soviet Union. Anyone who denies that fact is deluded.

Julius Rosenberg recruited several others to obtain military secrets that he passed to the Soviet Union. His network passed important information about conventional weapons to the Soviets.

Julius’s wife, Ethel, knew that Julius was a spy. Ethel may have aided Julius in recruiting members of his network – there is some evidence that suggests she did — but there is little evidence that she was a spy herself.

Julius and Ethel were both executed for a particular act of espionage: providing the Soviets with technical secrets about the manufacture of atomic weapons. Julius may have done it; we won’t know until all of the grand jury transcripts are finally released. Ethel did not. We know that, because the grand jury transcripts reveal that the one piece of evidence that tied Ethel to the crime was manufactured. It was a lie.

And the Justice Department knew it.

Ethel’s sister-in-law, Ruth Greenglass, was part of Julius’s network. Her husband David, Ethel’s brother, worked at Los Alamos. Julius sent Ruth to New Mexico to get information from David. When Ruth returned from New Mexico, she met with Julius to tell him what she had learned from David.

Before the Grand Jury, the Justice Department attorney pressed Ruth for details on exactly how she conveyed the information to Julius, that he then brought to his Soviet handler:

Prosecutor: “Didn’t you write that down on a piece of paper?”

Ruth Greenglass: “Yes. I wrote that down on a piece of paper and he took it with him.”

Prosecutor: “In longhand?”

Ruth Greenglass: “Yes.”

Greenglass’s testimony is entirely consistent with a cable sent by Julius’s Soviet handler, describing his meeting with Julius. The cable, decoded by the secret VENONA program, reported that the Soviet handler had received from Julius a “hand-written plan of the lay-out of Camp 2 and facts known to him about the work and the personnel.”

But that’s not what Ruth Greenglass said at Ethel Rosenberg’s trial. At Ethel’s trial, Greenglass said that she had given the information not just to Julius, but to both Julius and Ethel. More importantly, she claimed that Ethel had typed the information for Julius to bring to his handler. It was that testimony – that Ethel was present at the meeting and had actually typed the secrets for the Soviets – that lead to her conviction. The Justice Department – well aware of Greenglass’s previous inconsistent testimony to the Grand Jury – said in its summation that Ethel had “struck the keys, blow by blow, against her own country in the interests of the Soviets.” The trial judge expressly referred to Ethel typing the secrets for the Soviets as a justification for imposing the death penalty upon her.

Who prevailed upon Ruth Greenglass to perjure herself? We don’t know for certain, but we might hazard a guess: her husband David later admitted that he perjured himself at the Rosenberg trial at the urging of the infamous Roy Cohn.

Why did the Justice Department want to kill Ethel so badly?

It didn’t. What it wanted was leverage. It wanted Julius’s network, and the names of his Soviet handlers. But Julius was loyal to the Soviets, and was prepared to go to his grave with his secrets rather than reveal them to live. But surely he was not so loyal to the Soviets that he was prepared to see Ethel electrocuted, and his 3 and 6-year-old sons orphaned? And surely Ethel would tell anything she knew, to protect herself and her children?

No. As William Rogers, a deputy U.S. attorney general involved in the case (and afterwards President Nixon’s Secretary of State) later chillingly admitted, “she called our bluff.”

And so, at long last, we know that Ethel’s execution was the result of a reckless, immoral and unlawful gamble by the Justice Department. She died for leverage. And two young children were orphaned as a result. I recently had the opportunity to meet one of those children, Robert Meeropol, during his visit to William Mitchell. His life is now dedicated to helping children in need, and it is not difficult to imagine why.

Why should we care? Perhaps it’s useful to see concretely that fear can lead us to commit the very types of grave injustices of which our enemies accuse us.