Sunday, November 1, 2015

JT and Johnny Football
Two stories in today’s Akron Beacon Journal intersect in instructive ways.  

I am a life-long athlete and sports fan, using illustrations like these requires me to examine these stories as a scholar—not as a fan or fellow athlete (or if you hate sports, to examine these as a scholar and not a sports-hater). 

We want to use these stories because they are so familiar that we understand them and their contexts without much effort.  At the same time, we want to use them to deepen our analysis of law and politics, we want to abstract out from these stories lessons about the relationship between official discretion and the rule of law that are hidden in plain sight.

JT Barrett was suspended by the team for Ohio State’s next game, against Minnesota, for a misdemeanor charge of driving under the influence.  The OSU starting quarterback was stopped at a Columbus check point early Saturday morning.

First, we all know (and any athletes among us often know from personal experience) that star quarterbacks are subject to a different set of rules—the law means something different when applied to them…Behavior that is illegal and worthy of zero tolerance for an inner city thug is ‘just a good guy sowing his wild oats’ or ‘making the same mistakes we all made at that age,’ and deserving of our understanding and assistance so he can stay on the straight and arrow (read: on the field on Saturday).

This does not surprise anyone.  It frustrates many, but that fact that the law changes meaning when the person breaking the law is a football star is so commonplace as to not be news.  

We want to start by highlighting this, because this is only possible when cops, prosecutors, judges, coaches, school officials, journalists, university presidents, powerful alumni, and others work hard to influence the ongoing struggle over the meaning of the law…and those who are government agents do this in the way they choose to exercise their official discretion.

With that, let’s turn to these two stories from today’s paper.  First the JT Barrett story.

The school’s drug and alcohol policy would have required a two-game suspension for the 20-year-old Barrett if he had been charged with a felony. The misdemeanor charge gives coach Urban Meyer the discretion to pass down the punishment.

If we put aside how much we want OSU to win (or how much we want to see star athletes taken down a peg)…we can see here that the officers running the check point made a discretionary choice to charge Barrett with a misdemeanor.  There can be no doubt that these law enforcement experts knew exactly what their choice would mean.  Then school officials made a second discretionary choice to apply the minimum punishment required by school policy.  These choices change the meaning of the law:  different choices would have resulted in different sanctions. 

We have seen many non-legal factors matter a lot in this struggle over the meaning of the law (race, personal position on the merits of the voting law, ideological preferences, a teenager’s willingness to admit her mistake, a desire to be an effective problem solver, a desire to avoid a rigid application of law that would undermine the spirit of the law, a partisan failure to even ‘see’ fraud, and more) and now we can add ‘being a star athlete.’

This is an illustrative list only.  We can all imagine additional factors that are also not in the law, but matter (disrespect shown to the officer, personal beliefs about the proper 'place' for women, a bias against Muslims or religions in general, etc).  The precise list is NOT the point.  

The list merely illustrates an insight:  we observe in many different arenas that it is common place for officials to make choices (exercise discretion) in ways that change the meaning of the law on the basis of factors not in the law.

Notice I stated that insight in terms that allows us to further add that this can be done in ways that some see as positive (problem solving, flexibility, taking circumstances into account) or negative (prejudiced, misinformed, partisanship).

And we can go one step deeper here.  If we imagine an 8-0 OSU team that had only one star quarterback…can we imagine the officers at the check point making a different discretionary decision (changing the meaning of the law again) or school officials making a different choice (to, say, challenge the charge so that it ends up in court and is not resolved until the season is over)?

Let’s look at the second, related, story in today’s news, about Johnny Cleveland.

Johnny Manziel is likely to escape punishment from the league or team for being pulled over in Avon on suspicion of driving under the influence and domestic assault.  Beacon Journal columnist Bob Dyer wondered in today’s paper if the officer letting Manziel go without a breathalizer test gave the Brown’s quarterback a gift.

“If I’m a cop,” according to Dyer, “and a witness says a guy was driving 90 mph on the left berm and had his girlfriend pinned to a window, and when I approached him and smelled alcohol on his breath and he admitted to have a ‘couple of’ beers, would I just say ‘OK’ and let him go?”

Good question.  Dyer wants to know how the cop could make this choice, use his discretion in this way, and if he made this choice because the law-breaker is a football star.
Dyer asked the Hudson Chief of Police for some help sorting this out and the Chief said

“The way the law is written you can only administer a Breathalyzer test after somebody has been arrested for OVI.” 

Dyer than summarizes the chief’s explanation as follows: 

An officer won’t arrest unless she observes signs of intoxication (swerving on the road, eyes, breath, speech, answers to questions).

If the driver fails any of these the cop will ask him to take a series of field sobriety tests.
Flunking these triggers arrest.

On the DV charge, the chief explains that after Manziel’s clearly intoxicated girlfriend told the officer that “he struck me twice in the fact,” the officer looks for marks and sees none. Dyer then notes that she ‘retracted her initial claim,’ but we cannot tell from his account when she did that.

The chief concludes with this observation: “I know quite a bit about addictions.  If he was in rehab for 10 weeks and he’s drinking, it’s not a good sign…for him personally—or for a longtime fan of the Cleveland Browns.”

When we unpack Dyer’s summary we see that there are multiple decision points here, with multiple opportunities for this officer to make discretionary choices. 

The officer chooses NOT to see the smell of alcohol on Manziel’s breath as a trigger for an arrest, but she could have.

The officer chooses NOT to give Manziel a field sobriety test, even though it is hard to imagine if it were you or I she pulled over that we would be treated so gently, given the circumstances.

Yet, the ‘circumstances’ include that the law-breaker is a star athlete.

The officer chooses NOT to arrest Manziel for domestic violence, even though he could have. 
The officer chooses see Manziel as ‘worthy’ of going the extra mile, but not worthy enough for the officer to choose to conclude that for admitted alcoholic the choice the officer could make for this citizen-clients own good would be to get him into rehab, likely meaning starting with an arrest.

Saturday, October 24, 2015

This is our home
Twenty years ago we came to Akron.  We raised our sons here and have devoted our entire professional careers to strengthening UA and contributing to our neighborhood and city revitalization.

Today we have nearly 80% of UA faculty expressing no confidence in our leadership, those participating in campus visitation days are down 20%, and contributions from our long-time and reliable donors down more than 40%.

A sad time.  It is painful to watch our community in what appears to be slow motion collapse.

Trying to remain positive, work with students, turn this around.

Saturday, October 10, 2015

Our Public Pedagogy of Incivility

Michael Shermer wrote a compelling summary of what the best available data shows about the relationship between gun ownership and violence—at the individual, family, and state levels. 

Laura Bischoff analyzed the struggles surrounding Issues 2 and 3 on the Ohio state ballot for this Fall.

All week we have read about the ongoing Ohio charter schools controversy and the ‘fog machine at the Pentagon.’

In the sports pages we see that Atlanta Hawk’s player Thabo Sefolosha was found innocent by a jury in NYC of obstructing justice, resisted arrested and disorderly conduct charges filed after the police broke his leg. 

Rick Pitino’s NCAA powerhouse basketball program is now under investigation for allegedly providing strippers and prostitutes for recruits and their fathers.

Dana Milbank analyzes how a few dozen far right Tea Party members of the House ‘have plans to bend the entire House to their will,’ no matter the consequences.

And William Hershey notes that incivility in politics resulted in defeat for Republicans in 1964 and then again for Democrats in 1968, when Ray Bliss restored civility within the Republican Party to defeat a sitting VP (before Bliss was fired by the victorious Nixon who then rolled back civility efforts…and was defeated as a result).

What do these stories have in common?

Men with power corrupting civil society and our body politic?  Just the way it is?  Competing echo chambers in the internet era insulating opponents from the need to engage with alternative perspectives?  Far right business groups funding think tanks to provide ‘data’ to support any opinion, no matter how inconsistent with the best available data?

The best available data shows that a gun in your home for protection is 22 times more likely to be used to kill a member of your family (suicide, accidental shooting, homicide) than to be used against an intruder and states with the strongest gun laws have the lowest firearm fatality rates while states with the most permissive gun laws have the highest firearms fatality rates.

As a result, Shermer argues, it is no accident that 1.35 million Americans have been the victims of gun fatalities since 1970 (compared to 1.39 million who have died in all wars since the American Revolution); mass public shootings now occur once every 1.6 weeks (compared to once every 2.6 weeks before 2010); and in 2014 alone 66,019 Americans were killed or injured by a gun…180 per day, 7.5 per hour.  Not an accident; a choice. 

Issue 2 seeks to make the citizen initiative process more restrictive to prevent business interests from ‘using the citizen initiative process to their benefit’ as they did when they got a constitutional amendment passed authorizing four casinos the sponsors of the initiative now profit from.  Issue 3, to legalize marijuana, is being portrayed as another abuse of power by business leaders sponsoring this initiative. 

There was no effort to change the initiative process to stop the casino amendment or after it passed or even now, just as we have seen no effort to reign in the business leaders profiteering on tax dollars as they impoverish our public school system in the charter school scandal. 

And that effort now, targeting Issue 2, depends on a willful misreading of the Issue 2 language.  If the sponsors of Issue 3 really cared about reducing the ability of business interests to exploit tax payers they would widen their scope to include preventing their own business allies already doing just that.

Thabo Sefolosha was assaulted by the police and then charged by those officers with the standard charges used to punish anyone who takes issue with police brutality: obstructing justice, resisted arrested and disorderly conduct charges.  When a jury heard the evidence they found him innocent of all charges. 

Were he not a wealthy NBA star he would not have been able to fight this systematic assault that makes NYC look a lot like the small town politics detailed in the DOJ’s Ferguson Report, where all the power players are in on the ‘conventional wisdom’ that ‘these people’ are unwilling to accept individual responsibility or accountability so it is okay to demonstrate a lack of individual responsibility and accountability in punishing them.  His civil suit may shine a light on this, but for how long?

As a life-long athlete and sports fan I am deeply offended by the Rick Pitino’s and Joe Paterno’s and countless others who feed on our sports frenzy to become role models for misogyny, ignorance, and the blindness of the privileged who insist they deserve to be above the law.

As a life-long political junky I am deeply offended by the Tea Party, Heritage Foundation, Pentagon PR experts, Rush Limbaugh and Anne Coulter types who feed on our democratic openness to become role models for (see above)…such that a president seeking reasonable restrictions to reduce regular violence is greeted by hate-filled, misinformed, privileged protesters persuaded by the likes of these to see themselves as put-upon victims rather than among the privileged.

“Civility requires practice,” Hershey tells us and I agree.  What these stories have in common is that they reveal elites in our country providing ordinary Americans with repeated opportunities and invitations to be (and become) less civil, to be less skilled in the art of democratic citizenship, and less able to make democracy work for all of us.  

Incivility, like our vigilante tradition and new jim crow, is shown here to be an elite-led form of violence eating away at the great American experiment.

Sunday, October 4, 2015

In today’s Akron Beacon Journal we find a guest editorial written by retired Summit County Common Pleas Court judge Jane Bond, who is a also a former member of the UA board of trustees.  For full text click here.  For the press release UA put out when Jane Bond initially joined the UA board of trustees, click here.   For the UA statement at the time of her curious departure from the board, click here.

As we read this, keep this in mind:  this is an ongoing conflict on our campus, so I urge you to follow Jane Bond’s advice and seek out as many divergent opinions on this controversy as possible. 

I am not endorsing Bond’s position within that conflict; I am using her decision to weigh in on an active conflict as an opportunity to demonstrate to you that the insights we focus on in the Center for Conflict Management are, in fact, powerful tools for making sense of the world we live in.  My comments , in brackets, and in blue.

Jane Bond: UA Board Suffer from ‘Group Think’
What has happened to the trustees at the University of Akron?
Why is the university in such turmoil?
How could they let this happen?
These are questions I have been asked by dozens of community members who care deeply about the university and its role in Akron. I served as a member of the board of trustees from 2008 to 2012. During those years I observed the complexity and the breadth of the university as an institution serving 26,000 students and employing thousands of people striving to bring the university to a position of strength and educational excellence. So why is there so much turmoil, anxiety and conflict today?
[The fact that our author here served on the board is a mixed blessing.  On the one hand she has insider knowledge another analyst could not have.  At the same time, she may have an ax to grind. She may be an opponent of those currently serving on the board.  Thus, as with all texts, read this to learn but read it in the context it was written within.]
The fiduciary duty of the trustees is to set the overall direction of the institution and to guide the administration and faculty in reaching those goals. Fiscal responsibility comes first and the integrity and mission of the university follow. To do its job the board must have trustees who are independent, willing to challenge the recommendations that come to them and are open to all of the constituent stakeholders. They must not become a captive board that falls victim to “group think.”
[The above is fairly non-controversial stuff, leading readers to her question: is the group independent and/or subject to group think?  In her next sentence (below) she states her thesis:  they are the victims of group think and this compromises their capacity to be effective independent agents.]
This is what I fear has happened at the university and contributed to the situation we now face.
What is “group think”? It is a concept that was developed after the war in Vietnam when highly ranked officials in the Defense Department asked how such blind decisions, which escalated the war beyond all reason, could be made by experienced, intelligent, well-intentioned people.
They analyzed the military’s decision-making process and found a distinct group dynamic at work. In August 2011, I presented this concept in Columbus at a training session for trustees of Ohio universities and community colleges. Several of my fellow board members were there.

There are specific processes that result in “group think”:
• A closed system with decision-makers dependent for information on a select, self-interested group.
• A refusal to develop and consider alternative courses of action.
• Failure to take time to evaluate, valuing quick and easy decisions.
• Characterizing dissent as disloyalty to the group.
• Dismissing criticism as unfounded and politically motivated.
• Valuing consensus above all else.
During my years on the board I saw many of these processes at work. All information came from a select group of administrators and was carefully vetted before it reached the board. No “outside” voices were heard.
Alternatives to the recommendations of the administration were never given or requested. Everything had to be decided immediately. Deadlines were driving almost every action. Decisions become easy when you are only given one side of an issue and no alternatives are presented.
[Here we see our author recounting, on the basis of her experience on the board, a dynamic on the board that appears to fit the characteristics of group think she summarized earlier:  the board only heard from UA upper administrators about what they wanted to do.  The board never heard from faculty or students or community leaders—particularly those with views contrary to the story being told by upper administrators.  Entrepreneurs like Jeff Hoffman of would describe this as a leadership failure to break out of one’s bubble.]
Every vote should be unanimous. It was damaging to the university if there was contention or disagreement among board members. If you couldn’t agree, be quiet. If you refused to be quiet, you were disloyal.
Criticism was always produced by the disgruntled and the greedy. It was never legitimate. The faculty were presented as a problem to be managed never an asset to be cultivated.
[Here our author, following great thinkers like JS Mill and others, points out that is an intellectual failure to recognize that we make progress only when ideas are rigorously contested.]
The board members were cheerleaders who were expected to lead only cheers. All the administrators were doing a terrific job and deserved to be highly compensated. Trustees, to their faces, were flattered, fawned over and given the best seats in the house for all sporting events. I would be very surprised if any of this has changed since I left.
[Here our author transitions from looking backward to analyzing the present.  She starts, quite intelligently as I see it, by not demonizing the opposition, but instead analyzing the situation…focusing on how institutions, processes, cultural norms can constrain even the best among us…she does not argue the problem is that the board members are bad people, but that they are in a situation where they are not getting the information they need.]
The trustees today are well-intentioned, caring people concerned about doing the best for the university and the community. But they have selected a president who does not share the values or priorities that have built the University of Akron. They are now circling the wagons around him as he seeks to privatize whatever possible, lay-off employees, eliminate programs, shift instruction to online for-profit companies, abandon liberal arts as a basis for a quality education and fill lucrative positions with friends and loyalists.
So, they must ignore the critics and the cries of the outraged. Disparage them. Pay no attention to the collateral effects of the actions taken. Burn down the village to save it. To do otherwise is to admit they were wrong. This is “group think” in action.
I respectfully ask my former colleagues to consider some antidotes. The first is “principled dissent.” This is not rancorous disagreement or public wrangling. It requires stating the basis for a position; stating the reason a proposal is not acceptable; and acknowledging that others may also hold equally principled positions.
[Here our author could be drawing from the very best research on conflict management:  open-minded dissent is a sign of engagement and respect, not a lack of loyalty.  Listening to alternative perspectives is the core of great leadership. Blind loyalty is just that, blind…and blind cannot be innovative, or entrepreneurial, or thoughtful or leadership in action.]
Consensus is desirable, but it may also be a trap. Sound judgment and ethical responsibility occasionally require “principled dissent.” It is not disloyal. It is honorable and necessary.
The second is have the other side of every issue presented. Tell the administration to leave the room. Listen to community leaders, faculty members, parents, students, business men and women. Get information from neutral sources. Consider that many of the decisions that have been made could be wrong. Insist on alternatives being presented. Take time to do the right thing — not the quick and the easy way.
The third is do not be blinded by loyalty, influenced by friendship, corrupted by partisanship or paralyzed by cowardice. This historic institution may be facing its greatest challenge since Buchtel College burned to the ground. We are trusting in you to lead, to heal and to preserve a great university for the future.
Bond is a retired Summit County common pleas judge.

Saturday, September 26, 2015

Re-thinking Judicial Restraint
In today’s Akron Beacon Journal there is an analysis of Chief Justice Roberts on the editorial page worth reading.  The piece demonstrates the value of bringing a comparative and historical perspective to the analysis of current conflicts.  

The piece also reminds us of the critical importance of being able to ‘put ourselves in the other’s shoes,’ if we want to fully understand and appreciate the complexity of any argument, ours and those advanced by others who see any particular conflict from a perspective other than our own.

Here is the piece in its entirety, with a link to the ABJ here if you want to read it there.  My contributions are in [brackets].

CAMBRIDGE, MASS.: The U.S. Supreme Court term that starts the first Monday in October will mark the 10th anniversary of John Roberts’s introduction as chief justice. He can celebrate by reflecting on the assertion by Republican presidential candidate Ted Cruz that Roberts should never have been nominated.
[Immediately…we can see here that one theme examined in this piece will be the complicated relationship between law and politics.]
Cruz’s repudiation of Roberts, a fellow product of the conservative legal establishment, is just the latest confirmation of an astonishing process: The chief justice, a lifelong conservative who hasn’t abandoned his views, is nevertheless being abandoned by conservatives — without being embraced by liberals.
Having exercised judicial restraint in the two Obamacare cases and in the gay-marriage decision, Roberts is in the admirable and unenviable position of having a principled, across-the-board stand against activism. It’s admirable because justices are supposed to have, you know, a coherent judicial philosophy. And it’s unenviable because, in an era of activism, it wins you nothing but enemies on both sides.
[It is important to note here that two key terms are used in this analysis, that might require some clarification.  Judicial activism usually means:  when justices on the court, most often the Supreme Court, use their discretion to strike down acts of Congress or of the Executive Branch.  Judicial restraint usually means the opposite:  when justices on the court, most often the Supreme Court, use their discretion to defer to the more democratic branches and not strike down acts of Congress or of the Executive Branch.  I say ‘usually’ because as this piece points out, these are contested terms.]
Perhaps suitably for the Supreme Court, there’s a precedent for this process: Justice Felix Frankfurter, who joined the Supreme Court as a prominent liberal and found that his refusal to adopt judicial activism lost him his liberal legacy without gaining him a conservative one. Today, this extraordinary justice, one of the fathers of judicial restraint, has almost no fans or supporters — except possibly John Roberts.

Frankfurter started on the opposite side of the spectrum from Roberts. As a young government lawyer and Harvard law professor, Frankfurter became nationally known for his advocacy of liberal and even left-wing causes. He vociferously criticized the murder convictions of Italian anarchists Nicola Sacco and Bartolomeo Vanzetti, who may well have been guilty and in any case certainly belonged to what we would today consider a dangerous terrorist organization.

He strongly supported labor unions, helped found the American Civil Liberties Union, and was a national board member of the National Association for the Advancement of Colored People. He was a close adviser to Franklin Delano Roosevelt, instrumental in shaping the second New Deal. By the time he became a justice in 1939, he was one of the most famous liberals in the country.
[So, an appreciation of our own history allows us to see that Justice Frankfurter was clearly a leading and very public and powerful liberal before joining the court.  And part of his pre-court liberalism included developing a judicial philosophy of judicial restraint as noted in the next sure to notice the reason he did this.] 
As part of his liberalism, Frankfurter pioneered the ideology of judicial restraint, which he developed to criticize the libertarian, property-protecting Supreme Court majority that struck down progressive legislation on wages, hours and working conditions. He marshaled the views of Oliver Wendell Holmes and Louis Brandeis to support his critique, but in truth both of those great justices exercised judicial restraint somewhat selectively.

Frankfurter took seriously the judicial philosophy he had developed as a critic of the court’s majority. And he stuck with his restraint even when FDR’s numerous Supreme Court appointments (eight plus a chief justice) gave liberals a majority.
[Here we see that Frankfurter chose, once on the court, to use his discretionary authority to remain logically consistent…that is what it means when they say he ‘stuck with his restraint.’  But other liberal justices made different choices with their discretion, as noted here.]
To the other liberals, judicial restraint was a tool of criticism that they could jettison when they had the votes. To Frankfurter, it was the creed of a lifetime that he was unwilling to abandon.
[This raises an important question:  is ‘judicial restraint’ a principle, a value, a moral commitment expressing a deeply held vision of what the rule of law means…or is it an instrumental, provisional, political position we should adopt as if it were a morally principled position only when it serves our own partisan political needs of the moment (as we saw in the article about how partisanship impacts whether or not we even ‘see’ voter fraud or voter suppression? 
This is the kind of question we could not have asked without considering the argument in this text.  It is a much better question than the ‘usual suspects’ types of questions we might have asked without engaging with other smart people to deepen our understanding of law and politics…this is why we all need to work on learning to ask better questions.]

The result [of the conflict on the court between Frankfurter and his liberal colleagues] made Frankfurter look like a conservative on a court that moved steadily to the left. He voted twice to allow schools to expel students who wouldn’t recite the Pledge of Allegiance and salute the flag. He voted to oppose judicial intervention in electoral districting, the issue that led the court to “one person, one vote.” By the time he retired in 1962, he was being rejected by young liberals, to whom Earl Warren’s activist court embodied the true liberal spirit.
Today, Frankfurter is never mentioned as a liberal hero [but he should be]. But movement conservatives don’t like him either [though they probably should]: How could the post-Ronald Reagan right ever embrace one of the fathers of the New Deal and a lifelong admirer of FDR? To make matters worse, Frankfurter always considered himself a liberal, never conservative.

The parallels to Roberts are striking. He came on the bench as a highly credentialed conservative who clerked for Justice William Rehnquist and worked in the Reagan administration. He was deputy solicitor general under President George H.W. Bush before being nominated to the court by President George W. Bush.
[Here we see the value of comparative analysis, of putting ourselves in the other person’s shoes.  In this case, if you are a conservative, putting your perspective on Roberts to the test and if you are liberal putting your perspective on Frankfurter to the test, by seeing these two strikingly similar cases—one liberal and one conservative—side by side. 
This is another reason why learning to write accurate and persuasive summaries of the arguments of others is such an important intellectual and political and legal tool.]
By the time Roberts came of age, judicial restraint had become a conservative position in response to judicial activism from the left. As a conservative, Roberts believed in judicial restraint, a principle he invoked at his confirmation hearings.
[So, the politics behind the struggle over the meaning of the law and, as a result, the meaning of ‘judicial restraint’ had flip-flopped from Frankfurter’s era to Roberts’ era today.]
Once on the court, however, especially after the retirement of Justice Sandra Day O’Connor, Roberts found himself with a conservative majority that would kick into action whenever Justice Anthony Kennedy’s view brought him to a conservative result. Roberts could’ve pressed his advantage and abandoned judicial restraint, as his conservative colleagues are all prepared to do.
[If you are conservative…when you read this are you drawn to Roberts as the leader in the room or to the un-named conservative justices (Scalia, Alito and Thomas) who have used their discretion to abandon their moral commitments to the law in favor of pressing their political advantage on the court?  If you are a liberal, when you read the same dynamic about Frankfurter and imagine it were playing out today…who would you be drawn to? 
If we all step back and see both sides, historically and comparatively, does this have any impact on how we might have interpreted these conflicts before reading this?]
But Roberts has balked at judicial activism in the most high-profile cases the court has faced, bitterly disappointing conservatives like Cruz. His motivation is in part to preserve the legitimacy of the court — and that’s a perfectly appropriate rationale, part and parcel of judicial restraint in the Frankfurter tradition. According to this view, the court lacks the legitimate authority to overturn legislation passed by an empowered democratic majority, and harms itself and the democratic process when it does so.
[This highlights a powerful constraint on judicial activism that had concrete impact on both Frankfurter and Roberts choices regarding when and how to use their discretion:  concern about the legitimacy and power of the court, and rule of law, itself.]
Having refused to drop his judicial restraint when it’s convenient, Roberts is now being abandoned by his fellow conservatives [and he should not be, while he should also be praised by liberal movement activists but is not]. Like the liberals who rejected Frankfurter, these conservatives only care about winning, and treat judicial philosophy as a useful fiction.
[‘Treating judicial philosophy as a useful fiction,’ is a powerful statement worth thinking about.  Is that what Scalia, Alito and Thomas are doing?  If it is, what does it say to us about the relationship between law and politics?  And if this is what they are doing, why do other justices use their discretion in opposite ways?  And what does seeing all of this together suggest about law and politics?]
It would be nice to think that history will vindicate Roberts. But it hasn’t vindicated Frankfurter — at least not yet. Constitutional law should be more than pure politics. Roberts deserves admiration, not contempt. Maybe someday he’ll get it.
Feldman is a Bloomberg View columnist. He can be reached at

Saturday, September 5, 2015

The Story Trump Tells about Trump is Phony
Check out this Washington Post analysis of Trump’s four bankruptcies here.

Here are some selections from the larger article…

When Republican front-runner Donald J. Trump was pressed Thursday about his companies’ four bankruptcies in 18 years, the blustering business mogul called them routine corporate deals allowed by law and repeated by “many, many others on top of the business world.”

Yet missing from Trump’s retelling is that all four bankruptcies were high-profile embarrassments for his name-brand American empire. Amid some of the proceedings, the mogul poured in millions of dollars from his personal fortune to keep the restructurings alive.

To secure better deals or more time to pay off debts, Trump forfeited lucrative ownership stakes and allowed bankers, lawyers and bondholders to feast on his empire. In one deal involving hundreds of millions of dollars in debts he had personally guaranteed, he agreed to sell his airline and mega-yacht, and he allowed bankers to stipulate how much he could spend every month….

…But Trump was exaggerating, experts said, when he said that virtually every business leader has filed bankruptcy. An estimated 5 percent of the 500 biggest U.S. companies have filed for bankruptcy in the past two decades, Georgetown law professor Adam Levitin said.
A Chapter 11 filing, said Henry Sommer, editor in chief of the legal treatise Collier on Bankruptcy, can be a legitimate, respectable business response to corporate woes such as an industry shift or other nasty surprise — though, he added, it can also stem “from deals that were poorly put together to begin with….”

…The first Trump-tied bankruptcy, in 1991, was of Trump’s biggest Atlantic City casino, the Trump Taj Mahal, whose $1 billion construction was financed by junk bonds at a staggeringly high interest rate of 14 percent. Its glitzy unveiling fell flat amid slumps in Atlantic City and the broader U.S. economy, leaving the Trump firm more than $3 billion in debt.

Rather than the “fantastic deal” that Trump has celebrated, financial experts say the filing, and Trump’s guarantee of the debt, marked the moment when his personal fortunes were most in jeopardy….

…For a lower interest rate and more time to make loan payments at the Taj Mahal, Trump struck a deal with his lenders, giving up half his ownership and equity in the casino that bore his name. He also agreed to a bank-set limit on his personal spending and sold his airline, the Trump Shuttle, and his 282-foot yacht, the Trump Princess, which he had bought a few years earlier from the Sultan of Brunei….

…In 1992, one year after the humbling developments of Trump’s first business bankruptcy, the mogul was back in court with another Atlantic City mega-property, the Trump Plaza Hotel and Casino, crushed beneath $550 million in debt.

For easier repayment terms for those debts, Trump agreed to give up his 49 percent stake to a half-dozen lenders, including Citibank. Trump stayed on as chief executive, though the role was symbolic and declawed: He did not have a role in day-to-day decision-making, and he did not earn a salary.

In 2004, Trump faced his third corporate bankruptcy…underneath $1.8 billion in debt….
Trump brushed off the bankruptcy as “really just a technical thing” that touched only a small fraction of his net worth, telling the Associated Press then, “I don’t think it’s a failure, it’s a success.” But Trump also pumped $72 million of his personal fortune to help keep the restructuring afloat.

In 2009, Trump Entertainment Resorts, formed in the aftermath of the Trump empire’s bankruptcies, itself declared bankruptcy after missing a $53 million bond interest payment. The company, which ran the Trump Plaza and Trump Taj Mahal, was forced into court, scattering investors and sending its $4 share price plunging to about 25 cents.

After a messy, months-long sparring with the company’s board of directors on how to reshape the company and repay the debt, Trump resigned as chairman and left with a reduced corporate stake of about 10 percent, which allowed the company to use his name in licensing….

…Trump has often celebrated his foresight for pulling out of his Taj Mahal casino on the New Jersey coast, saying during the debate: “I had the good sense to leave Atlantic City. I left Atlantic City before it totally cratered. And I made a lot of money in Atlantic City, and I’m very proud of it….”

…But Trump’s multiple spells in bankruptcy court, and the little effect they have played on his abundant wealth, highlights the stiff gap between how businesses and consumers are treated amid financial strife. The Trump businesses, as with many companies, were afforded significant leeway in the hope they could recoup those massive debts.

[Dare we say they were too big to be allowed to fail…even though, by any market-related measure they did fail?]

This Vox analysis of Trump’s success being more about his inheritance than his putative business acumen is also worth reading.

Wednesday, September 2, 2015

What if the other side will not join the conversation?

Good question.  Consider, enacting the outcome you want as an invitation to join the conversation. Individually and in groups.

For instance, have representative groups (senate, union) issue separate or better a joint call for a conversation structured to build trust and strengthen UA AND announce that we will take the following steps toward demonstrating our willingness to do what it takes to build trust and strengthen UA in the hope that doing these will move us in that direction AND create conditions for the both sides to join the conversation called for here.

[These actions are the answers we get when we start with this question:  what would our campus community look like, work like, if faculty and administration really were on the same team?  Keep in mind this is not an invitation to re-phrase and recycle the same criticisms of the other side, but to see if we can discover ways we might 'be the change,' ways we might act as if we were on the same team to help our students in the hope that these actions bring about the end we are enacting.]

While each faculty and staff member working on the ground with students will choose to Intensity Our Commitment to Each Other in their own way, here are some illustrative ideas:

Critically review each syllabi or each routine interaction we have with students to find at least one way we can revitalize it, be more responsive and helpful and open to meeting our students where they are rather than criticizing them for not meeting us where we are (see very bottom of this entry).
Initiate conversations within work units to do the same at the unit level or to create teams (of similar types of colleagues or cross-functional teams) to brainstorm ways to do this because it is good for our students. 
While our goal should be to be pro-active and student focused in ways that do not require new resources, when a particularly powerful idea comes up that might be scale-able, find a friendly administrator to bounce the idea off of (because this is complex organization we work within and ideas will likely have implications beyond what the initiator considered if it is to be scaled up) and if there is agreement on the power of the idea work up a plan to share the idea through the chain of command to see if resources might be found. 
Share all these ideas and information in one centralized location, for all to see, and each semester the union and senate will hold a joint meeting to review and celebrate successes.
Just some thoughts.  No guarantees, of course.  But seems worth considering.

And the initial premise (that the other side will not join the conversation), in my view, needs to be understood not as an attack statement or moral judgment, but a recognition of the fact there trust is low and there are good reasons on all sides to be wary, even if the call is to join a conversation to help our students and institution.

To build a meaningful conversation out of a context of distrust will take time, start with small steps like these (perhaps, or other steps), and requires all of us to work as hard to understand and respect those we disagree with as we are willing to work to help our students and institution thrive.

We feel disrespected and not trusted.  It is not realistic to expect to change that if we frame our efforts in language that is disrespectful to those we want to partner with, no matter how divergent our perspectives on the challenges we face.

Speaking to faculty in particular...
Consider using more interactive teaching tools, boosting formative assessments particularly very early in the term, ask your students how to enliven your course with non-traditional texts or tasks or multiple modes of delivery, hold office hours at Zips football games, try to do less criticizing of students for their lack of writing skills or numeracy and, instead, integrate into your courses opportunities for you to help them improve these foundational and transferable skills, talk with colleagues to share and borrow ideas that could be on this list....