Archive for the ‘Law’ Category

Health Care – Now?

Written by Rebecca Zietlow on September 10th, 2009

It’s been quite a week. I watched folks marching in the Labor Day parade carrying “Health Care Now” signs, and heard an enthusiastic crowd member call out, “Health care yesterday!” I talked to tmpphpzd3xO3my friend whose husband lost his job about her difficult decision about whether or not to take her son to the doctor for an ear infection since it would cost over $100. I think of my friend who was just diagnosed with cancer. Thank goodness she has health insurance – I can’t bear to think of her having to forego treatment, as so many have who can’t afford it and lack the insurance to pay for it. I think of my friend with the severely disabled daughter who can’t move because after years, she finally got her daughter on state supported health care. I think, maybe relief is finally here for her and the 46 million uninsured in this country.

Yesterday, President Obama said that health care reform is not just an economic issue, it’s a moral issue. I agree. Why do the people who suffer bad luck such as loss of job or severe illness then have the further bad luck of not being able to afford health care? It’s just not fair, and it’s not in this way in any other advanced industrialized nation. Health Care (Reform) Now? I sure hope that it will be here soon.

The End of “an End of an Era”

Written by Rebecca Zietlow on September 3rd, 2009

As I watched Ted Kennedy’s funeral and listened to the coverage of his life and death last week, I heard the phrase “the end of an era” so many times, it convinced me that people should stop using the term “the end of an era.” What does an “era” mean? According to the Oxford English dictionary, an “era” is defined as “a system of chronology reckoning from a noteworthy event.” Perhaps the commentators mean their observation to refer to the era beginning with the birth of Joseph Kennedy Sr.’s children. True, a genertion of Kennedy brothers had passed away now, ending the era of that generation of the Kennedy brothers. True, many of us (including myself, born the year that Ted Kennedy entered the Senate) cannot remember a time when Ted Kennedy was not in the Senate. True, thousands of liberals in America can no longer count on Senator Ted Kennedy to always speak for us in the Senate, and never apologize for being liberal. But what is the point of calling this an “era?’ What more do we learn from this phraseology?

Perhaps those who called Ted Kennedy’s death “the end of an era” intend announce the end of liberalism in America that was most prevalent in the 1960s but lingered until Ted Kennedy’s death. If thatmpphpH7AOUT[1]t is the case, then I must, most emphatically, object, not only to the phrasing but to the sentiment behind the phrase. There remains a strong progressive tradition in the Democratic party, shared by many members of he general public who dop not affiliate themselves with that party. The progressive tradition was most recently re-affirmed by the election of President Obama (with Ted Kennedy’s crucial support) and his numerous Demcratic colleagues in Congress. It is reaffirmed in the polls that show that despite months of the healthcare industry spending over a million dollars a day to fight health care reform, the American public still strongly supports it, and still demands a change to our health care system. So, let’s put an end to this talk about “the end of an era” and concentrate on what we need now. There’s never an end of the era of need for the poor and middle class folks in this country who demand health care reform.

Another Lesson on Race in America

Written by Rebecca Zietlow on July 30th, 2009

Two weeks ago, Professor Henry Louis Gates, Jr. got a lesson on race in America, and as a result, so have the rest of us.  A prominent Harvard scholar on race in Amer180px-Henry_Louis_Gates_Jrica, Professor Gates told NY Times Columnist Charles Blow that he has generally lived in “a cocoon of racial tolerance, enlightenment and reason.”  However, on the day that he returned from a trip to China and had trouble opening his front door, he became what Blow called “a member of the Club” – the 66% of Black men in America who told the New York Times that they felt they had been stopped by the police because of their race.  We don’t know whether Officer Crowley treated the professor differently because he was Black.  Officer Crowley might not even know.  Crowley teaches other officers how to avoid racial profiling, but can he avoid his own unsconcious feelings about race?  What we do know is that Professor Gates’ belief that he was treated differently because he was Black was entirely rational, given the history of race in America and in the Boston area.  Professor Gates writes about this history in his scholarship, and he teaches about it in his classes.  On that summer day, the academic became real for Professor Gates.

I vividly remember the day that the academic became real for me.  In law school in another New England city, I learned a lot about race in America from my classes and my African American classmates.  The spring of my second year, a white female and Black male friend and I looked to rent an apartment together.  My white female friend had made the appointment to see the apartment, but when we showed up with our Black friend, we were told the apartment was no longer available.  We went to lunch together and stared at each other blankly, asking, “Did that really happen?  Are we victims of discrimination?” The same thing happened at another apartment building that afternoon.  We later confirmed with friends that lived at both buildings that apartments were still available in both buildings.  We’ll never know for sure whether we were treated differently because my roommate was Black.  What we did know was that we had  been taught another lesson on race in America.

My experience, like that of Professor Gates and Officer Crowley, is typical of how people’s experiences are “colored” by racial differences.  Often, we don’t know whether our actions, or those of other people, are motivated by racial prejudice.  The lesson we can learn from Professor Gates is that race always matters – it is unrealistic to assume that it doesn’t.  What President Obama is trying to do today with his “beer summit” is what we all need to do – recognize that race influences all of us, talk about our differences, and try to understand each other.  When we can do that, then we will have indeed learned a positive lesson about race in America.

The Most Dangerous Supreme Court Case

Written by Rebecca Zietlow on July 23rd, 2009

There’s been a lot of talk recently about the Supreme Court’s Ricci case, but by far the most important case decided by the Court this year is Ashcroft v. Iqbal. In that case, the Court upheld the dismissal of a civil rights claim broughashcroft_CV_20090519130315t by a Pakistani immigrant held in the wake of 9/11 against the Attorney General of the United States.  What’s surprising is not that the Court dismissed the case, since even the least jaded among us would have anticipated that outcome.  What’s really significant about Iqbal is that the Court applied a new rule to all civil cases that will make it much more difficult for all civil rights plaintiffs, indeed all plaintiffs in general, to survive a motion to dismiss.  The Court’s new rule is that a judge can dismiss any claim when the judge believes that the plaintiff’s claim is not plausible.  What will judges rely on to make this determination?  According to Justice Kennedy, the judge should rely on “judicial experience” and “common sense.”   That’s not what the Federal Rules of Civil Procedure say – they only require that the complaint include a “short and plain statement of the claim.”

Why does this matter?  It matters because the Iqbal decision is an invitation for judges to rely on their own discretion to decide whether a plaintiff can use the system of “discovery” to get information to back up his or her claim.  It matters because the judges and members of Congress on the committee to draft the Federal Rules of Civil Procedure could not have made their intention more clear – they required the plaintiff only to give notice or his or her legal claim and back it up with a minimal statement of facts, so that plaintiffs could get access to federal courts.  Iqbal has been cited 500 times by federal judges since it came down less than two months ago.  Many of the judges citing the case were granting motions to dismiss.

The Iqbal hurdle will be the hardest to overcome for exactly the type of people who most need the federal courts – civil rights and employment discrimination plaintiffs.   They have the least resources to get the information they may now need to convince skeptical federal judges that they deserve their day in court.  That’s why Iqbal is not only the most important case to come down this year, it is also probably the worst.

Thoughts on the Sotomayor Hearings

Written by Rebecca Zietlow on July 16th, 2009

When I wasotomayor.jpgs a first year student at Yale Law School, some of the upper level students organized a conference on “Women of Color and the Law.”  The speakers at this conference spoke about the failure of our law to adequately address the needs of women of color, and the role of women of color as lawyers.  The conference had a strong impact on me and my friends.  While in law school, we focused in our classes and our extracurricular activities on the law’s relationship to women of color and other people who have been historically disempowered in out society.  After law school, as a legal services lawyer in the South side of Chicago, I personally witnessed the failure of the law to address the needs of my clients, who were primarily women of color.  Now, there is a woman of color, Sonya Sotomayor, who is about to become a member of the top Court in our country.  I never would have imagined this moment when I was in law school, or when I was a practicing lawyer.

As far as I know, Sotomayor was not present at the Women of Color Conference.  It occurred years after she graduated from Yale.  However, during her hearings she has found herself discussing some of the issues addressed by the speakers at that meeting – the impact of a experience on how a person understands the law, and the importance of a judge mitigating his or her personal views when he or she is interpreting the law.  In a world dedicated to the myth that justice is blind (that is, that judges are not influenced by their backgrounds and experiences), her nuanced explanations are a tough sell.  Fortunately, she is maintaining her composure, and her strong record and the large Democratic majority in the Senate virtually insure that she will be confirmed.  I look forward to that day.

Comparing Umpiring and Judging: Idiotic or Unintentionally Insightful

Written by Henry L. Chambers, Jr. on July 15th, 2009

Chief Justice Roberts famously deemed his vision of judging similar to his vision of umpiring.  According to him, both the judge and the umpire are supposed to call balls and strikes and nothing more.  This vision of judging and the implication that judging is almost robotic has been criticized by some as far too simplistic, particularly as applied to a Supreme Court justice.  Nonetheless, Republican senators have repeatedly noted the umpire/judge analogy during the Judge Sonia Sotomayor’s confirmation hearing.

However, if Roberts had thought a bit harder, he would have realized that the umpiring analogy is a very sensible one, just not for the proposition he claimed.  Umpires are charged with calling balls and strikes.  They have a rulebook that defines what is a ball and what is a strike.   However, as any true baseball fan knows, that is only the beginning of the story.  Few umpires call strikes that are high in the umpire_study_08101.jpgstrike zone defined by the rulebook.  Some umpires are known for having a wide strike zone and some are known for having a narrow strike zone.  Depending on where the umpire stands, he can have a difficult time determining whether an inside pitch is a strike or a difficult time determining if an outside pitch is a strike.  Nonetheless, every umpire would claim merely to be calling balls and strikes.  The variation in umpiring is understood in baseball and is taken to be part of the game.  As long as the umpire is consistent with his calls and does not have a wide strike zone for some and a narrow strike zone for others, the deviation from the defined strike zone of the rulebook is accepted.  One irony, of course, is that the discretion (or deviation from the rulebook) that is deemed a part of baseball umpiring is far broader than any deviation from the law that Roberts would claim tolerate.  Nevertheless, Roberts’ true feelings about judicial discretion and Supreme Court judging can be found in the Court’s recent Ricci decision, where he and four of his colleagues simply changed the rulebook rather than call the balls and strikes of that case.

Jeff Sessions: Empathy Towards One Litigant Means Bias Toward the Other Litigant?

Written by Robert Justin Lipkin on July 13th, 2009

Senator Minority lead Jeff Sessions made the astounding remark on Face the Nation Sunday that when a judge shows empathy toward one litigator, it means he or she will show bias toward the other litigant. What can this possibly mean? Showing or experiencing empathy means taking the appropriate action to experience oe0fbcabb6007999e.jpgr appreciate the circumstances, needs, and feelings of another person, especially when the other person is a member of group with which one is not terribly familiar. If I own a service station and have a conflict (or just want to understand) someone who breeds horses, empathy is the attempt to put myself in the breeder’s circumstances by asking the breeder questions relevant to our conflict. Empathy is the attempt to put myself in the other fellow’s shoes. If I’m a judge assigned to settle the conflict between the service station owner and the breeder empathy requires me to try to appreciate each party’s gripe as sympathetically as I can. As a judge empathy requires me to appreciate everything I can about each party relevant to the rules governing the legal conflict. Understood in this manner, empathy for one litigant cannot mean bias toward the other. Rather, it means appreciating each party’s circumstances and each party’s complaint.  I must try to appreciate why each party feels wronged and what is required to make them feel whole. Yet, according to Senator Sessions, empathy is inappropriate, perhaps even dangerous, because it’s a zero-sum game. If I genuinely empathize with one party, I must show bias toward the other party. It’s difficult to understand how a leading figure in the Senate can be so unaware of the role empathy plays in human conflict resolution. Just imagine a parent settling an argument between two children. Empathy doesn’t require favoring one child at the expense of the other. It means understanding each child’s complaint sympathetically and impartially and then fashioning a resolution that is fair to both children.

Racial Justice After Ricci

Written by Rebecca Zietlow on July 9th, 2009

As we sit back after the end of the Supreme Court term, and get ready for the nomination hearings on another Justice, it’s worthwhile to consider what the government can do to try to reduce racial injustice in our society. Despite the long history of race discrimination new-haven-minority-firefighters.pngin our country which has subordinated racial minorities, Ricci is just the latest in a line of cases where the Court makes it clear that it will apply the highest level of scrutiny to government attempts to remedy that history. What is a city like New Haven to do to attempt to provide more opportunities for upward mobility to government employees of color? Standardizes tests, like that in Ricci, could theoretically be useful to reduce the level of discretion in hiring and promotion decisions. Less discretion should mean less opportunity for race discrimination. Yet given that one of the many issues that plagues communities of color if poor public education, it is not surprising that job and promotion candidates of color don’t score as well on written standardized tests.

After Ricci, cities like New Haven better be sure that the test is valid before they use it, because afterward, it’s too late to discard the results no matter how discriminatory their impact might be. Could cities like New Haven try to remedy the racial disparity by giving extra points on the promotion scale to candidates of color? No way, the Court has made that clear. Theoretically, they could lobby their local government officials for help.  Yet under the current Supreme Court’s jurisprudence, it’s hard to see what those local officials can do, except as Bobby indicates below, hope that candidates of color can “pull themselves up by their bootstraps” and improve their situation on their own.

Out with a Whimper

Written by Rebecca Zietlow on July 2nd, 2009

The Supreme Court’s season is over, and it ended not with a bang, but a whimper.  The Court did not strike down the Voting Rights Act after all (thank goodness).  The Court ruled in favor of the white firefighters in Ricci, as expected, but avoided the Equal Protection issue.  And, despite disparaging remarks and jokes during the oral argument over the case, eight members of the Court agreed that strip search of a 13 year girl alleged to have brought an Ibuprofen pill to school violated the 4th Amendment.  As many commentators have noted, the Court is moving to the right, but it could have moved a lot farther.

Why the whimper instead of a bang?  Could it be that members of the Court are influenced by politics?  The most interesting case to me is the strip search case.  Justice Ginsburg, the only woman on the Supreme Court, was open about her concern that her male colleagues were insufficiently attentive to the sensitivities of a 13 year old girl.  Did the fact that  another woman, Sonya Sotomayor, sits in the wings to be confirmed to the Court, have an impact of those colleagues as they mulled over that case?  Did the fact that Sotomayor is a person of color influence the members of the Court considering overruling the landmark Voting Rights Act even as conservative politicians were accusing Sotomayor of being a racist?  We will never know.

The “Public Option” and the Health of Our Nation

Written by Rebecca Zietlow on June 25th, 2009

As the health care reform debate shifts into high gear, we need to make sure that the reformers have the right priorities.  The fundamental issue before us is what is the purpose of our health care system – the health of the American people or the health of the private insurance companies?  Frankly, these two priorities are increasingly at odds with each other.  As Atul Gawande’s celebrated New Yorker piece reminds us, patients are best served, at the lowest cost, in locations where the medical culture is focused on the health of the patient instead of making a profit.  Because private insurance companies are for profit entities, they are institutionally poorly suited to best serve the needs of the patients.  This does not mean that all private health insurance companies are bad, of course, but it does explain why they are fighting the “public option” tooth and nail in this health care reform debate.  Their argument against the public option is that it is unfair to make private insurance companies compete with government provided health care.  Why?   Because the government can provide services at a lower cost so the competition would be unfair.  Are you kidding me?  All this argument proves is that the public option might hurt the private health insurance industry.

Currently the profits of private insurance companies account for 30% of the cost of our health care.  It’s time to face the fundamental question – how much does preserving the outrageous profits of the private health insurance companies matter?  Is it worth sacrificing access to health care at an affordable cost?  That’s really what’s at stake in the “public option” debate, and the answer to the question is obvious.  Interestingly, polls show that almost 80% of the American public supports a public option.  While Americans may distrust the government, they apparently distrust health insurance companies even more.  For the health of the nation, we need the public option.