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Category: Politics

4

What Is Pro Bono Work? The George Ryan Question

This is is no longer news – indeed, it’s old – but I’ve just learned that former Illinois governor George Ryan – he of death penalty moratorium and, more recently, racketeering and corruption conviction fame – was represented at trial pro bono by Winston and Strawn. The firm may have committed as much as $20 million (in billable, not real, dollars) to the case. The firm’s generosity can be explained, in no small part, by the fact that the firm’s chairman is former governor James Thompson, under whom Ryan served as lieutenant governor.

This is surely an unusual form of pro-bono work. While we often think pro-bono projects are targeted at poor people or underrepresented groups, that is far from universally true. Some firms represent cities, for example – saving the general counsel’s time on particular cases. Some commit associates to work for DA’s offices. And some firms serve clients like the ACLU and other impact litigation groups, arguing matters – from gay rights to reproductive freedom to private property protection – which benefit people across the economic spectrum.

My sense is that smaller firms, and individual lawyers, target their pro-bono efforts at individual clients who could not otherwise afford legal services. But bigger firms use their pro-bono work to serve a more diverse agenda. The biggie, it’s always seemed to me, is associate happiness. Many associates want to get hands-on experience and if they can do social good – broadly defined – so much the better. Law firms want junior lawyers to learn practice skills and these cases (particularly ones that will go to a hearing, or include depositions) provide that training at no risk to serious (i.e., paying) clients. Finally, law firms get a PR bump from being seen as community oriented.

I’m not sure how the the Ryan case fits into this lattice. Ryan, a pharmacist from Kankakee (who apparently received cash Christmas gifts from his employees, in an unusual turnaround of holiday tradition) could never have afforded the services of former U.S. Attorney Dan Webb, and his team, but he hardly qualifies as poor, or even poorish. And Ryan seems to have been represented as seriously as any other paying client, which means that associates got as much – but no more – responsibility than they would on any other matter. And as for the public relations angle, the firm has been pilloried for providing the former Governor this free, red-carpet treatment.

Was this was just one politician helping out another? Winston and Strawn is entitled to do that (although there may be some tax consequences for Mr. Ryan.) I’m just not sure we should call this service pro bono publico. Pro bono privatus, perhaps?

2

Retaliation Against Workers at Immigration Rallies

Immigration and employment are closely linked subjects. After all, the 1986 Immigration Reform and Control Act criminalized an activity that we don’t normally think of as illegal – that is, the activity of work itself (when that work is performed without proper documentation). It’s been fascinating to follow the debate and to see the strange political bedfellows involved; congress is going to continue considering potential compromises. On May 1 these issues took center stage on the “Day Without an Immigrant” protests and boycotts (some of which continued past that day). For reports, see this CNN story and recent posts at ImmigrationProf here.

According to the print Wall Street Journal, however, the May 1 immigration rallies were somewhat constrained. If all of the 11 million workers who are working without authorization walked out on their jobs, that would cause serious harm to the national economy. The article raised the idea that the “strike” was muted in part because workers were afraid that they would be fired or otherwise retaliated against if they chose to take part in protests. The New York Times had earlier reported on retaliation against workers who had attended pro-immigration rallies.

Professor Paul Secunda over at WorkplaceProf offers the following intriguing analysis of retaliation for these protests building on a labor law theory:

From a legal standpoint, one of the most overlooked aspects of the National Labor Relations Act (NLRA) is that it not only protects unionized workers, and those seeking unionization, in their ability to engage in concerted activity for mutual aid and protection in the workplace, but also protects non-unionized workers, like many of these rallying immigrant workers, in their ability to engage in the same activity.

Consequently, non-unionized workers are also protected against adverse employment action by their employers to the extent that the rallies are considered a type of concerted activity for mutual aid and protection, which is directly related to concerns in the workplace. To the extent that employers nevertheless take adverse actions based on participating in these rallies, the impacted employees may be able to seek reinstatement and backpay through filing unfair labor practice claims with the NLRB.

Paul’s analysis certainly would lead to a progressive pro-speech / pro-expression outcome. But at the same time, walking out on work for this type of protest isn’t prompted by anything that the particular employer did. Attendance is a basic job requirement, and the employees could express themselves during non-work hours. Finally, if it is undocumented workers who are involved in the protest, the decision in Hoffman Plastics means that even if the workers were able to show that their rights had been violated, they wouldn’t be able to receive the backpay.

If all we’re left with is an employment analysis, then the remedy is even more constrained, since most workers are at will. I suppose there may be some kind of Title VII protection (for national origin discrimination) if all of the retaliated-against protestors are being treated more harshly than a worker of a different ethnic group who is absent for a day.

Interestingly, in another part of his post, Paul claims that most employers probably will not retaliate for self-interested reasons:

Finally, and perhaps the best reason for employers not to take any action against employees participating in immigration rallies is because, from a practical standpoint, it does not serve their interests. After all, many of the same companies and industries that are suffering the most from absent workers because of these rallies are the same companies which have the most to gain through the continuation of the current immigration state of affairs. It would thus seem in these employers’ best interests to encourage these workers to demonstrate for more flexible immigration laws and not to punish them for doing so

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I suppose that depends on which employers, or how employer “economic interests” is defined. If the laws are changed to allow illegal aliens to regularize their status, that means that the “threat of calling the INS” no longer will have any power over undocumented workers. And these undocumented workers may then choose to organize or push for other rights – rights that they haven’t felt comfortable asserting because of the fear of deportation. And the employers who are currently hiring undocumented workers don’t want that.

Now, if the government shifted the focus from deporting immigrants themselves, and instead cracked down on employers (who perhaps have brought additional attention to themselves by firing employees who are attending immigration rallies), I suspect that the burden of the law would fall much differently. We would see a whole different set of incentives come into play, and that might lead to meaningful immigration reform.

4

What your Representative really thinks of you

Last time that I wrote to my Representative, I received a pretty generic form letter in response. And I had sort of assumed — till now that most everyone gets a similar form letter. It turns out, however, that some folks get a somewhat more personalized reply. From the Associated Press (hat tip to reader Marc B):

Nobody expects to get a letter from a member of Congress that ends with an expletive. But that’s what happened when Rep. Jo Ann Emerson, R-Mo., recently corresponded with a resident of her southeast Missouri district. The letter ended with a profane, seven-letter insult beginning with the letter a – “i think you’re an. …”

No word on whether the constituent in question really is an asshole. Meanwhile, reactions have been mixed, with at least some folks loving it. (Not surprisingly, Wonkette loves it.) Which kind of makes you wonder — if this story helps her poll numbers, will copycat politicians everywhere start mailing asshole letters to their constituents?

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Wanna hobnob with George Clooney this weekend?

Then come join the crowds at the Save Darfur Coalition’s “Rally to Stop Genocide” on the National Mall in Washington, D.C., this Sunday, April 30. Other luminaries appearing at the event include Senator Barack Obama, Nobel Peace Prize winner Elie Wiesel, rap impresario Russell Simmons, and Paul Rusesabagina (whose story was depicted in the superb film Hotel Rwanda, which you should rush out and rent tonight if you haven’t seen it yet). The Save Darfur Coalition brings together more than 160 faith-based, human rights, and humanitarian organizations, and the list of speakers at Sunday’s event reflects the incredibly diverse, grass roots nature of this effort. Here’s the blurb from the Coalition’s website:

“The rally is part of the “Million Voices for Darfur” campaign to generate one million postcards for delivery to President Bush, who recently pledged to push for additional UN and NATO help to protect the people of Darfur. We applaud the President’s leadership, but the work is far from done. We are urging President Bush to take steps necessary to end the genocide and build a lasting peace.”

Organizers estimate that around 20,000 people will attend the rally in DC, with smaller rallies to be held in cities around the country. Even if the crowds defy expectations and number in the hundreds of thousands, they will be dwarfed by the figures coming out of Sudan itself: According to the Coalition website, in just three years, 400,000 people have died and nearly 2.5 million have been displaced.

How many political issues out there can unite Barack Obama and Sam Brownback in common cause? Kudos to both Senators, and to the many other politicians, celebrities, and ordinary folk who have put compassion and principle above partisan bickering, in an attempt to shake us all out of our apathy.

6

Reefer Madness At The FDA

marijuana-leaf.jpgOne of the most troubling behaviors of the current administration is its repeated willingness to manipulate the distribution of empirical data with which it disagrees. From global warming to crime, the government seems more interested in promoting its policy preferences than transparently reporting the results of the research it performs or supports. The administration has a legitimate right to advocate for its positions. But if it wants to argue that marijuana ought to be illegal, as the FDA did last week in its Inter-Agency Advisory Regarding Claims That Smoked Marijuana Is A Medicine, it seems to me the better policy – both from an honesty and a credibility point of view – is to concede the facts that cut against you, and make your case anyway. In its press release last week, the FDA asserted that:

A past evaluation by several Department of Health and Human Services (HHS) agencies, including the Food and Drug Administration (FDA), Substance Abuse and Mental Health Services Administration (SAMHSA) and National Institute for Drug Abuse (NIDA), concluded that no sound scientific studies supported medical use of marijuana for treatment in the United States.

True as this may be, a 1999 review of studies by the National Institute of Medicine suggests that marijuana offers potential therapeutic value for pain relief, control of nausea and vomiting, and appetite stimulation. Also, it notes that “until a non-smoked, rapid-onset cannabanoid drug delivery system becomes available…there is no clear alternative” to smoking. Why can’t the administration concede the existence of this data review by another federal agency?

It seems to me that the administration is driven by a decision, ex ante, that marijuana ought to be illegal. If it were truly interested in investigating the utility of the drug, it wouldn’t make serious research into its value exceedingly difficult. So the federal government ignores data suggesting the value of marijuana. It makes it hard to generate more research on marijuana. And it is therefore able to rail against the many states that have legalized marijuana for medical purposes. There are reasons to believe that, if the government allowed the debate to flourish – by sharing data that does exist and promoting the production of new data – its position might become weaker. But if marijuana is in fact effective as a medicine, perhaps the FDA should legalize it. And if the government’s real argument is something other than efficacy – that it is very likely to be misued, for example, or that its increased availability will lead to a rise in DUI cases – then it should make that case instead.

In some respects, this approach to policy debate reminds me of an argument made by death penalty opponents who argue that the death penalty is bad policy because it is expensive. But why is it expensive? Because opponents litigate these cases very aggressively. There are many good reasons why some people may oppose the death penalty. But it seems to me that when the people complaining about the cost of capital punishment are the people generating this expense, one should at least be skeptical. I’m not denying that the expense argument might mask a a deeper claim: perhaps these cases are so expensive, and require so many appeals, because the state fails to provide excellent counsel in the first instance. But if this is true, wouldn’t a more logical solution to the cost problem be a requirement that states spend money on quality counsel up front, to save in the long haul? In the end, the real claim underneath cost is fairness: the quality of a person’s lawyer should not determine whether he receives a death sentence. That may not “sell” as well to certain voters, but it is the more honest argument.

As for reefer, when government is making the arguments, I think we have a right to expect honesty. The FDA’s dubious pronouncement appears driven primarily by the administration’s emotional hatred of marijuana. Personally, I’d prefer FDA decisions to be grounded in evidence-based research rather than simply madness.

28

A Feminist Gets Married

I got hitched Saturday. Beforehand, I had been sheepish about telling my students I was getting married. It seemed inconsistent with my professional persona as an independent, fearless, freedom-fighting law professor. So I waited until the last possible minute to mention it. “OK, I have a quick announcement,” I began a recent Criminal Law class. “I do apologize, but I have to cancel next Thursday’s class because… um… well… my partner and I have decided to get married.” My students then began to clap. Gads, this was worse than I’d imagined it would be. The applause grew.

“No, no—please don’t clap. This is a truly freakish event that was never supposed to happen to someone like me.” Applause turned to laughter. Now I’d gotten myself in a fix.

Gavin had faced none of this angst. He had told his journalism students months ago, and he’d enjoyed their applause, while I skulked around my school as if I had a dirty little secret.

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But Certainly Everyone Has $200 to Donate?

Michelle Cottle has a delicious critique of the NYT Thursday Styles Section, aptly titled The Gray Lady Wears Prada. Cottle juxtaposes the “high-minded liberal sensibility” that the Times’s bobo readers aspire to cultivate with the breathless high-end consumerism of Thursday Styles’ Hermès scarves and Jimmy Choo mules. The most revealing quote comes from Times editor Bertram “Trip” Field III, who insists that “we’re [not] trying to serve only those readers who can afford a $10,000 watch.” When Cottle examines the egalitarian timepieces Trip’s claimed to have covered, it turns out the cheapest one is an $890 Prada.

I’m not going to tsk-tsk consumerism here—been there, done that. But I do think Cottle’s insightful piece discloses another aspect of elite journalism—a class bias so pervasive that it’s not even noticed. I think such biases also work their way into scholarship. For example, the bien-pensant consensus on campaign finance reform has long held that we want races funded by a large number of “small donors”—presumably those who donate less than $500. But really, with median family income around $65,000 and average household savings near zero, how many of these small donations are going to come from those at the bottom half of the income scale?

Thankfully, Bruce Ackerman and Ian Ayres’s “Patriot Dollars” proposal addresses this issue by proposing donation vouchers of equal size for all voters. But I’m wondering where else implicit class biases inform a scholarly consensus…any ideas?

Necessary Investment Incentives?

scrooge mcduck.jpg

Pretty soon the alternative minimum tax is going to hit millions more taxpayers—even people making less than $50,000 annually. This extended reach will primarily harm those who work hard, pay property taxes, and have other deductions for things like dependent care, education, and health care. This AMT bite was never intended by Congress—it’s just reaching down the tax bracket because the figures it’s based on were drawn up decades ago.

You’d think this problem would be at the top of the tax reform agenda. Sadly, no. Rather, the big debate is over whether to extend tax cuts on investment income. As brilliant NYT tax reporter David Cay Johnston observes,

Among taxpayers with incomes greater than $10 million, the amount by which their investment tax bill was reduced averaged about $500,000 in 2003, and total tax savings, which included the two Bush tax cuts on compensation, nearly doubled, to slightly more than $1 million.

So this debate is basically about whether to make such windfalls permanent, or to try to stop our current fiscal irresponsibility and actually do something about our massive national debt.

But perhaps I misunderstand the issue. Is there a good policy reason for tax cuts for the superrich? Would they simply refuse to invest if better tax treatment weren’t given—choosing instead, perhaps, to roll around in vaults of money ala Scrooge McDuck? Would they renounce U.S. citizenship and move to the Isle of Man? I’m just trying to understand this policy on a higher level than positive political theory (which would, of course, predict that those best able to invest in money-intensive politics would get the highest returns). I guess I need to start reading the Tax Prof Blog!

A Triumph for Divided Government?

Apparently Massachusetts politicians have hammered out a plan providing universal health coverage in that state. The bill is an interesting mix of mandates, incentives, and taxes. There’s still some chance a squabble over taxes on businesses that don’t provide insurance coverage may scuttle the deal. But overall, it’s a very encouraging sign.

As the deal is finalized, I’ll be watching my indefatigable friend Nathan Newman’s blog (and that of PLAN, a group advocating social justice on a variety of fronts in state legislatures, and the Center for American Progress). Newman appears pretty pleased with the direction of reform now. If it works, it might stand as a great argument for divided government. Everyone knows health care reform is necessary, but few interests appear willing to give anything if “the other side’s” party is the only one responsible for legislation (remember the scorched earth tacticians Harry & Louise?). A Republican governor in Massachusetts, balanced by a strongly Democratic legislature, appears to have broken the gridlock.