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.

My kids’ school had a program called “Drop Everything and Read.” The idea was that no matter what else was on the agenda, every once in a while the kids just stopped what they were doing and made time to actually read (I told my kids that in my rough school, I followed a program called Drop Everything and Run). The point was to prevent them from losing sight, amid the constant hustle and bustle of school, of the joy of learning and storytelling.

Law students often lose sight, amid the alternating grind and panic, of what they might be able to do with a law degree some day. I like to think we’re training them to be wise counselors, people to whom [...]]]>

My kids’ school had a program called “Drop Everything and Read.” The idea was that no matter what else was on the agenda, every once in a while the kids just stopped what they were doing and made time to actually read (I told my kids that in my rough school, I followed a program called Drop Everything and Run). The point was to prevent them from losing sight, amid the constant hustle and bustle of school, of the joy of learning and storytelling.

Law students often lose sight, amid the alternating grind and panic, of what they might be able to do with a law degree some day. I like to think we’re training them to be wise counselors, people to whom others turn for guidance when the going gets rough. But how do we show them that?

It seems to me that it’s worthwhile, every now and then, to drop everything and talk about some ordinary lawyer who, when history conspired to give them a choice between trying to help people who needed it, and turning away, chose to try. I think of it as “Drop Everything and Emulate.”

The criteria are that the lawyer must be either someone they’ve never heard of who tried like hell to help when needed, or someone who did great things, whom they never realized was a lawyer. And, there must be a tie-in with whatever we are studying at the time.

Last year, I chose the the 75th anniversary of the ‘Reichstag Fire’ Decree of February 28, 1933, to introduce my students to a lawyer named Hans Litten. We were studying zoning and takings at the time. Here’s what I told my students:

Under the February 28th decree, the Nazis declared, among other things, that searches could be made in peoples’ homes without a warrant, and property could be taken without compensation or redress in the courts.

Once property could be taken without compensation, people could be forced to live in particular zones based on their political viewpoint, or race, or religion, or sexual orientation.

Within 3 weeks of the decree, the Nazis opened a new ‘camp’ to hold people arrested and dispossessed of their property. It was in a town called Dachau. Eventually thousands died there. Eventually millions would die elsewhere, in camps and ghettos across Europe. That’s what takings and zoning can be about.

Back to Hans Litten: he was one of the first four people arrested under the decree, on the night of the 28th. Why did they arrest Litten, and why so soon? Because they feared him, this guy who looks like Harry Potter at recess. Why?

He was a lawyer, and before he even turned 30, he had decided to fight Nazism with the law. How? When the brown shirts attacked innocents, he sued them and the people putting them up to it. At the age of 29, he put Adolph Hitler himself on the stand and cross-examined him. Can you imagine the courage?

The Nazis knew, if they were going to triumph over law, they were going to have to get rid of people like Litten. And not sometime down the road. First. Because he had learned how to use the law to seek justice. Like Dick the Butcher in Shakespeare’s Henry VI, when the worst illegally seize power, they know that first, they’d better kill the lawyers.

Litten wasn’t a superman; in fact, his whole sense of justice depended upon the idea that there was not a class of supermen and a class of ordinary men. He wasn’t perfect, he wasn’t a saint.

But he learned the law – he studied this sometimes boring crap to learn things like under what circumstances governments can decide who lives where – in order to learn how to ask for justice.

And, when history conspired to present him with that awful challenge, he found the courage to do it. Personally, I can only barely imagine it.

Litten was never tried, or even charged with a crime. He died in Dachau. But we remember him today.

So now, let’s honor him by taking our turn to learn.

In part, that’s because Minnesota has been wing-nut central in the 2008 elections – or at least it was until Ashley Todd put Pennsylvania in play. Sure, we haven’t had any hoax mutilations, but we’ve had:

• Detentions of journalists during the Republican convention (eat your heart out, Beijing!)

• Sarah Palin’s greatest shopping spree (who knew we had $75k worth of inventory?)

• The emergence of Al Franken as a serious candidate

• The emergence of [...]]]> Making my debut on Concurring Opinions this week has its risks. Depending on what happens tomorrow, my entries are either going to read like sweet nothings from Norman Vincent Peale, or a serialized suicide note. I’ve been obsessed with this election. I feel like I’ve scratched the electoral map into my own cheek.

In part, that’s because Minnesota has been wing-nut central in the 2008 elections – or at least it was until Ashley Todd put Pennsylvania in play. Sure, we haven’t had any hoax mutilations, but we’ve had:

• Detentions of journalists during the Republican convention (eat your heart out, Beijing!)

• Sarah Palin’s greatest shopping spree (who knew we had $75k worth of inventory?)

• The emergence of Al Franken as a serious candidate

• The emergence of Michele Bachmann as a serious lunatic

• Three little, permanently mortifying, words: “He’s an Arab.”

Minnesota has a reputation for niceness and understatement, but if you consider its political history, it’s not that surprising that it’s a little volatile. This is the state that gave the world Gene McCarthy and Paul Wellstone, but also Jesse Ventura and Michelle Bachmann.

One struggle for those of us who are history buffs is to convince our students that history did not begin with the emergence of Facebook. I think that to put this Presidential campaign in its historical perspective, it is necessary to know a little about birth of the Southern Strategy in the transformative campaign of 1968. With that in mind, I’ve suggested that my students give an ear to the outstanding American Radio Works documentary, Campaign ’68: The Dawn of a Conservative Era. You can listen at the website.

For a Property professor, these are riveting times. The mortgage nightmare continues. As in much of the country, here in Minnesota, thousands of houses stand vacant and decaying. Parts of Minneapolis have been devastated. But the problem may have crested in the cities.

Not so in the suburbs. Five-year subprime ARM loans that were originated in 2004 and 2005, when McMansions were popping up in suburbs like dandelions in my lawn, are not due to re-set their rates until 2009 and 2010. If home values haven’t improved by then, many of those borrowers will have negative equity – that is, they’ll owe more than their homes are [...]]]> Thanks, Sarah, Dan, and everyone at Concurring Opinions for inviting me to guest blog.

For a Property professor, these are riveting times. The mortgage nightmare continues. As in much of the country, here in Minnesota, thousands of houses stand vacant and decaying. Parts of Minneapolis have been devastated. But the problem may have crested in the cities.

Not so in the suburbs. Five-year subprime ARM loans that were originated in 2004 and 2005, when McMansions were popping up in suburbs like dandelions in my lawn, are not due to re-set their rates until 2009 and 2010. If home values haven’t improved by then, many of those borrowers will have negative equity – that is, they’ll owe more than their homes are worth. That means they’ll be unable to re-finance for as much as they owe, because lenders won’t lend more than the house is worth.

Legal and economic institutions seem at a loss to cope with the crisis, but not for want of trying. There are lots of plans out there, but none seems satisfying. From an academic’s standpoint, it’s fascinating. Rational choice, on the one hand, and norms of fairness, on the other, are interacting in odd and sometimes surprising ways.

Homeowners with negative equity can be divided into four groups: those who can’t pay their loans, those who might not be able to pay their loans in the near future, those who can pay their loans but don’t want to, and those who can and do pay their loans.

Lenders and government agencies agree that the best choice for dealing with homeowners who can’t pay their loans is to re-work their loans so they can. Lenders don’t want abandoned, unsellable homes, and government agencies don’t want homelessness to spread. Moreover, the presence of one foreclosed house lowers the value of neighboring houses, and increases the risk of more foreclosures.

The FDIC and commercial banks are working frantically on plan to to re-work loans. The problem is that ultimately, in order to make these loans affordable, they’re going to have to be re-valued at the current value of the home. In other words, the principal owed on the house will have to reduced – in many cases, reduced by a lot. It’s an economically rational choice: everyone involved – the homeowner, the lender, the government agency — is better off.

But there are significant negative externalities, and not all of them are cold-bloodedly rational. First, by re-valuing homes now in danger of foreclosure, agencies and lenders could push other homes into danger. Think of it this way: if your neighbor’s nearly identical home is now worth $200K, yours probably is too. And that may push your home into negative equity, and if you need to refinance that ARM, you won’t be able to do it. So by saving one house from foreclosure, we may create the need to save another; and we’ve spread the crisis from our first group into the second. Foreclosures beget more foreclosures, but re-valuing homes to avoid foreclosure may also beget more foreclosures.

Second, the rational choice for our third group – the folks with negative equity who can pay their loans but don’t want to — is to pretend they can’t pay the loan, so that the lender will re-value the home and lower the principal due. And there’s plenty of evidence that those people intend to do just that.

Which, not surprisingly, infuriates the people in our fourth group – people with negative equity who can and do pay their loans. To them, it seems blindingly unfair that similarly situated people are treated preferentially, just because they are unwilling to live with the bad bargains they made. And yet, folks in the fourth group are no worse off whether or not people who can pay but don’t want to get their loans reduced.

But governments violate strongly-felt norms of fairness at their peril. The nightmare, and the tug-of-war between rational choice and social norms, continues.