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An Introduction to “Rural-Proofing,” and Why We’re Unlikely to Implement It in the U.S.

I learned about the concept and practice of “rural-proofing” on my first trip down under, in 2010. It’s a term Aussie law- and policy-makers use regularly–especially at places like the Rural and Regional Law and Justice Conference, which I keynoted that year. Rural-proofing refers to the process of vetting proposed laws and policies to determine whether and how they will “work” in rural communities, a way of avoiding unintended consequences that might leave rural places worse off than they previously were–or (substantially) worse off than urban places.  You might think of it as an environmental impact statement, but with the focus on rural livelihoods rather than on the wider environment.  It uses rurality as a the critical lens in relation to a purposeful investigation into the consequences of a proposed law, policy or funding scheme.

Turns out it’s not just Aussies who do this rural-proofing thing.  You can find discussions of rural proofing in New Zealand, South Africa, and the United Kingdom, too.  Here’s an academic paper that compares the process in the U.K. to that in Australia.  I especially like this New Zealand statement about the foundational tenets that support rural-proofing:

  • All people, no matter where they live, should have a reasonable ability to live, work, and to contribute to and be part of New Zealand society.
  • Rural people should have the same health outcomes as people living in urban areas.
  • Rural people should have access to services that are equivalent to primary health services in urban centres.
  • Primary care services in rural areas should be comprehensive, sustainable, provide continuity of care by the right person, at the right time, in the right place.
  • Rural communities should be resourced at a level that enables providers to provide the services required.
  • Rural people should have access to primary care services that will be accessible into the future.

The New Zealand document also address the “why” rural matters:

• 70% of merchandise exports

• Rural based tourism

• Rural access to healthcare

• Sustainable health services

• Maintaining quality services

I find the first two bullet points especially interesting because in my many years of studying rural people and places, I have often circled back to the conclusion that rural America will not get its due–by which I mean what its people need to flourish in light of its struggles to achieve economies of scale–unless and until it/we/they are able to convince urban America that rural people and places matter, that they are worthy and worth something, that rural and urban are actually interdependent.  (Think Derrick Bell’s interest-convergence theory).

What rurality is “worth,” of course, typically boils down to what rural folks produce:  food, products of extraction, rural recreation/tourism revenue.  These are pretty big deals, of course, but they are shockingly easy to lose sight of in contemporary political discourse.  This is a huge topic, and I won’t dig in further here except to note that I always chuckle at images of skyscrapers covered in gardens as the future of how we will feed cities.  We may be able to grow more food closer to cities and thus reduce the carbon footprint associated with agriculture, but the U.S. will not continue to play the role it now plays in feeding the world without vast acreage devoted to food production. Most of that acreage will continue to be in places pejoratively referred to as flyover states, in places which are by some definition rural.

Further, the thought of rural America “getting its due”( in the sense I assume is appropriate) increasingly looks like a pipe dream.  First, in spite of the fact that Trump played to rural America during his campaign, many are pointing out that he is now not only neglecting rural America, he is seriously and even actively undermining it.  Read Paul Krugman’s column focusing on the consequences of Trump’s budget for West Virginia.  Other analyses focused on agriculture and rural infrastructure under Trump are here, here and here.

But it is not only Trump and Republican neglect of rural America that concerns me.  Nearly as frightening these days is liberal/Democratic disdain for rural people and places.  Indeed, it’s a bi-partisan endeavor these days.  Bear in mind that Michael Katz, an economist for the FCC, said back in 2009:

Other people don’t like to say bad things about rural areas.  So I will.

The notion that we should be helping people who live in rural areas avoid the costs that they impose on society … is misguided, from an efficiency point of view and an equity one.

As for the political economy of rural America in 2017, take this story from today’s Wall Street Journal:  Janet Adamy and  Paul Overberg report under the rather dramatic (but apparently justified) headline, “Rural America is the New ‘Inner City’.”  The story recounts some seriously bleak data:

In terms of poverty, college attainment, teenage births, divorce, death rates from heart disease and cancer, reliance on federal disability insurance and male labor-force participation, rural counties now rank the worst among the four major U.S. population groupings (the others are big cities, suburbs and medium or small metro areas).

As discouraging as these data are many readers’ responses to the story.  I’ve taken some screenshots from Janet Adamy’s Twitter very lengthy feed about the piece:

 

These screen shots are nearly impossible to read, so let me highlight a few comments (other than some rural dwellers saying they didn’t vote for Trump):

Is anyone telling them to pull themselves up by the bootstraps and lock up their addicts, or is that response for city dwellers only?

My response:  why, yes, that is exactly what I read J.D. Vance to suggest should happen in his best-selling Hillbilly Elegy.  I’m assuming lots of folks agree with him because the book has sold nearly a million copies and is still on the NYTimes bestseller list after nearly a year.  (My thoughts on Hillbilly Elegy are here, with links embedded to three others posts in the series here on Concurring Opinions).

This comment is representative of another thread in response to the WSJ story:

they all vote consistently against their own interests while demonizing progressives of all stripes. I can’t bring myself to care.

I see a lot of this “their own damned fault” rhetoric on social media (also applies to the white working class, with which rural populations have significant overlap, not least in the national imaginary).  I saw plenty of badmouthing rural folks and their livelihoods before the 2016 election (I wrote a whole darn law review article about it in 2011), but I’m convinced it is far more widespread now.  Indeed, a colleague asked me this spring why I was advocating for poor rural white folks in relation to environmental injustice episode.  The colleague explained his/her question:

 Some of these people were quite powerful in some domains, even exercising electoral power over California (and me) in the last election.

I understand the annoyance and agitation, but I’m not willing to give up on rural dwellers or the white working class–not yet anyway (huge topic; read my other work; more to follow…).

These comments suggest that liberals are not very sympathetic to rural folks and that a particular backlash against them is not only permissible, but may even be in fashion now.  All of this raises the question whether a critical mass of folks/leaders give a damn about rural Americans, never mind food production, extraction and (even!) our next foray into the rural and remote recesses for a wilderness experience (Yellowstone, anyone?  maybe the Great Smoky Mountains or the Shenandoah National Park if you are back east).

Nevertheless, assuming for a moment that we might care enough about rural America to engage in rural-proofing, let’s return to the New Zealand statement I quoted above.  This NZ policy document points up the fact that rural proofing is often discussed and done in relation to rural health initiatives (and here’s a tool for that purpose; read more here).  Yet the concept and practice need not be so limited.  Indeed, some of my earlier work, while not using the term “rural-proofing,” has illustrated the mis-match between federal law- and policy-making on the one hand and rural realities on the other.  In Missing the Mark:  Welfare Reform and Rural Poverty, I argued that “welfare reform” in 1996 didn’t “work” in rural places because of rural differences–in particular, limited job markets, lack of child care, and lack of transportation infrastructure/public transit that could actually get people to the jobs they were required to have in order to continue to receive welfare.

This is a topic that Adamy and Overberg pick up in their story today (quoting me, I’m pleased to report), and it’s one to which I’ll return in my next post, which will focus on rural labor markets in relation to this practice of rural-proofing.

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The Meaning of Patriotism

Last fall, I began reading Hillbilly Elegy. I wanted to see how the author, J.D. Vance, would deal with the question of class. I was particularly interested to see if his experiences at Yale Law School were anything like mine. They were in one respect – we were both introduced to sparkling water at large law firms and couldn’t understand why anyone would drink the stuff.
I finished reading the book after the election. Vance’s memoir is more an effort to deal with his dysfunctional upbringing than an explanation of the white working class’s electoral preferences. There are no more than a half dozen political comments in the volume. Before the election, I quickly glossed over them. After the election, the asides, however brief, rankled. The one to which I kept returning was his declaration that his people were “patriotic.” Yet, he gave the idea of patriotism no content. It made me reflect on my own upbringing.
My working class family certainly thought of itself as patriotic. My father had fought in World War II and he identified strongly with that service. When we moved out to the suburbs, he bought a flagpole and mounted it in the center of our front yard, flying the flag every day the weather permitted.
Beyond the flag, however, my parents’ patriotism had content that they frequently repeated. Most of the litany was “this is a great country because” and the most important because was that the country embraced us. All four of my grandparents had come from Italy around the turn of the twentieth century. My parents kept telling us as children that we would be “American.” For my brother and me, with our blue eyes, blond hair, and inability to speak any language other than English, this was a source of amusement. But we also understood that our parents meant that we were to embrace American values.
The first of those values was the importance of education. Two of my four grandparents had been illiterate. My parents had been the first in their families to complete high school and they felt deprived of the opportunity to go further. They spent our childhood telling us that education was the American secret to success and that we must be prepared to seize the opportunities America offered.
In Catholic school, the nuns also taught us about what it meant to be American. They prepared us to do battle with our perceived enemies – the Protestants, who we were told would challenge our faith. But we were also taught that we could be loyal Americans and good Catholics because of the separation of church and state. The need to separate private devotion from public leadership was central to our understanding of citizenship. We saw tolerance as the great American virtue, and learned that it was something we owed others if we were to demand it for ourselves.
Next in my parents’ litany of “this is a great country” was their belief that the United States was strong and prosperous because, unlike Italy, it got things done. As a child, I read Mark Twain’s, A Connecticut Yankee in King Arthur’s Court, which captured the idea of the United States as a nation of tinkerers open to innovation. My father, who was a carpenter, liked the idea. He was proud that he had voted for every winning presidential candidate from Franklin Roosevelt to Jimmy Carter – irrespective of party. His winning streak ended with Ronald Reagan. He didn’t vote for Reagan for the same reason he didn’t vote for George McGovern: he saw both as radicals who put commitment to ideology over pragmatism, that is, ahead of doing what the nation needed at the time.
These notions of patriotism informed my family’s definition of effective leadership. My first cousin became the Republican Majority Leader of the New York State Senate when Mario Cuomo was the Democratic governor. He liked to say that he respected Cuomo and Cuomo respected him. The two of them had come from similar backgrounds and while they often differed politically, respect meant thinking of each other as intelligent, competent and willing, when the necessary time came, to cut the deals necessary to get the state’s business done.
These clear distinctions between public leadership and private commitments informed my own sense of professionalism. I remember my surprise in the eighties when I sat down with a new faculty member. She began the conversation by announcing, “I am a feminist.” I thought to myself: “If you were to look at the sum total of my beliefs, you could say I am a feminist, too. But what does it mean to tell somewhat that in your first extended discussion? Does it mean that you have made up your mind before you hear the facts? That you put loyalty to the cause ahead of loyalty to the institution that just hired you?”
My cousin the majority leader, who was substantially older than I, died a while ago. In 2005, I stopped by to see his widow who was dying of cancer. When I walked in the door, in the only political conversation we ever had, the first thing she said to me was, “Does anyone still support George W. Bush? We had his number in 2000. We can’t believe anyone still supports him.” My cousins, lifelong Republicans, felt betrayed by the direction their party had taken.
Is there anything left of the notions of patriotism that my working class family once held dear? It’s hard to find them in today’s politics. But the academy is changing. When I moved from California to the Midwest ten years ago, I was pleased to find a less ideologically divided faculty despite a range of political views. My new colleagues told me that the faculty had been more factionalized a few years earlier. But the most polarizing of the professors had left, and those who remained were determined not to rekindle the conflicts. They had recreated a leadership ideal that made commitment to the whole more important that uncompromising purity or partisan loyalties. Let us hope that there is a way to do so for the country as a whole.

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FAN 153 (First Amendment News) POLICYed & Richard Epstein Bring Free-Speech Lessons to Digital Media

If you watch music videos or wild-animal adventures on YouTube, you may come upon a public-service announcement by, yes, Professor Richard Epstein. Well, sort of — he’s the brain power behind an animated and podcast series on free speech.

The series is titled Intellections: Activate Your Thinking and contains videos on a range of topics from rent control to health-care insurance to free speech and beyond. Intellections is part of POLICYed, which is funded by the Hoover Institution located on the campus of Stanford University.

Below are three animated videos for which Professor Epstein helped prepare the content:

  1. Should Speech that Offends be Prohibited? (transcript here)
  2. Who Can Restrict Free Speech? (transcript here)
  3. The Limits of Free Speech? (transcript here)

Related Podcasts

  1. The Libertarian: “Yale, Safe Spaces, And Free Speech” (Troy Senik interviewing Richard Epstein)
  2. Mob Censorship on Campus (Troy Senik interviewing Richard Epstein)
  3. The Libertarian: Free Speech on College Campuses (Troy Senik interviewing Richard Epstein)

Fourth Circuit: Wikimedia Has Standing to Challenge NSA Surveillance Program

The case is Wikimedia Foundation, et al v. National Security Agency, et al (4th Cir., May 23, 2017).

Judge Albert Diaz

Plaintiffs Claims: “Plaintiffs—educational, legal, human rights, and media organizations—filed their first amended complaint wherein they ask for, among other things, a declaration that Upstream surveillance violates the First and Fourth Amendments, an order permanently enjoining the NSA from conducting Upstream surveillance, and an order directing the NSA ‘to purge all records of Plaintiffs’ communications in their possession obtained pursuant to Upstream surveillance.'”

Summary from the court: “The Wikimedia Foundation and eight other organizations appeal the dismissal of their complaint challenging Upstream surveillance, an electronic surveillance program operated by the National Security Agency (the “NSA”). The district court, relying on the discussion of speculative injury from Clapper v. Amnesty International USA (2013), held that the allegations in the complaint were too speculative to establish Article III standing. We conclude that Clapper’s analysis of speculative injury does not control this case, since the central allegations here are not speculative. Accordingly, as for Wikimedia, we vacate and remand because it makes allegations sufficient to survive a facial challenge to standing. As for the other Plaintiffs, we affirm because the complaint does not contain enough well-pleaded facts entitled to the presumption of truth to establish their standing.”

Judge Albert Diaz wrote the majority opinion, in which Judge Motz joined and in which Senior Judge Davis joined in part. Judge Davis wrote a separate opinion dissenting in part.

Majority Opinion: Article III Standing: “[T]he Wikimedia Allegation is that the NSA is intercepting, copying, and reviewing at least some of Wikimedia’s communications in the course of Upstream surveillance, ‘even if the NSA conducts Upstream surveillance on only a single [I]nternet backbone link.’ We conclude that this allegation satisfies the three elements of Article III standing.”

“. . . because Wikimedia has self-censored its speech and sometimes forgone electronic communications in response to Upstream surveillance, it also has standing to sue for a violation of the First Amendment.”

Judge Andre Davis

Judge Andre Davis, concurring in part and dissenting in part: “I agree with the holding that Wikimedia has standing to challenge the NSA’s surveillance of its internet communications. However, because I would find that the non-Wikimedia Plaintiffs also have standing, I respectfully dissent in part.”

→ Counsel for AppellantsPatrick Christopher Toomey, ACLU Foundation, New York

→ Counsel for AppelleesCatherine H. Dorsey, United States Department of Justice

Amicus briefWikimedia Foundation v. National Security Agency (4th Cir., 2016) (Chelsea J. Crawford, Joshua Treem, Margot E. Kaminski, Marc J. Blitz, A. Michael Froomkin, David Goldberger, James Grimmelmann, Lyrissa Barnett Lidsky, Neil M. Richards, & Katherine Jo Strandburg)

Court Summarily Affirms “Soft Money” Case: Hasen’s Commentary  Read More

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Bushrod Washington on Judicial Modesty

I like the following quote from Justice Washington in McFadden v. The Exchange, which was a circuit opinion addressing whether the admiralty jurisdiction could hear a claim that an American vessel was illegally seized by France. It nicely combines the confidence that judges must display in their decisions with the healthy skepticism that keeps them open-minded:

I am fully sensible of the delicate nature of the question which is here decided, and I feel cheered by reflecting that the error of my judgment, if I have committed one, can and will be corrected by a superior tribunal; for surely a question of such national importance as this is, ought not, and I hope will not, rest upon the decision of this court. I can at the same time truly declare that if I could be so wicked as to decide this case different from the opinion which I must sincerely entertain respecting it, my humble genius and talents would not enable me to give one single reason which my conscience or judgment could approve.

Sure enough, Washington was reversed by the Supreme Court in an opinion that he joined.

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Justice Washington and the Erie Doctrine

Everyone knows that Erie R.R. Co. v. Tompkins overruled Justice Story’s 1842 opinion in Swift v. Tyson and held that federal courts hearing cases in diversity jurisdiction should use the applicable substantive state law on matters involving contracts, torts, and other common-law subjects. People also usually learn that Holmes was a sharp critic of Swift v. Tyson during his tenure on the Court.

What you may not know, though, is that Bushrod Washington appears to be the first judge who articulated why the Erie doctrine made sense and why Swift did not. I learned this from reading something by Robert Jackson that cites Washington’s 1814 circuit opinion in Golden v. Prince. In Prince, Washington was called upon to interpret the same provision of the Judiciary Act of 1789 that was later read by Swift to empower federal courts to create their own general common law.  Here is what Washington said in rejecting that suggestion (it’s a long passage):

The powers bestowed by the constitution upon the government of the United States, were limited in their extent, and were not intended, nor can they be construed to interfere with other powers, before vested in the state governments; which were, of course, reserved to those governments impliedly, as well as by an express provision of the constitution. The state governments, therefore, retained the right to make such laws as they might think proper, within the ordinary functions of legislation, if not inconsistent with the powers vested exclusively in the government of the United States, and not forbidden by some article of the constitution of the United States, or of the state; and such laws were obligatory upon all the citizens of that state, as well as others who might claim rights or redress for injuries, under those laws, or in the courts of that state. The establishment of federal courts, and the jurisdiction granted to them in certain specified cases, could not, consistently with the spirit and provisions of the constitution, impair any of the obligations thus imposed by the laws of the state; by setting up in those courts a rule of decision, at variance with that which was binding upon the citizens, if the suit had been instituted in the state court. Thus, the laws of a state affecting contracts, regulating the disposition and transmission of property, real or personal, and a variety of others, which, in themselves, are free from all constitutional objections; are equally valid and obligatory within the state, since the adoption of the constitution of the United States, as they were before. They provide rules of civil conduct for every individual who is subject to their power, in all their relations to society; and consequently cannot, in cases where they apply, cease to be rules by which the conduct of those individuals is to be decided, when brought under judicial examination, whether the decision is to be made in a federal or state court.

The injustice, as well as the absurdity of the former deciding by one rule, and the latter by another, would be too monstrous to find a place in any system of government. Thus, for example, if the laws of a state, which regulated the distribution or transmission of property in the year 1789, should be totally varied by a subsequent law, the latter only would be the rule by which property could be distributed or transmitted from the time the law came into operation; and it can never be seriously contended, that a person inter- ested in this property, and from the adventitious circumstance of his residence in another state, entitled to make his claim, either in the federal or state court, should recover more by resorting to the former, than he would have recovered had he applied to the latter court.

With respect to rules of practice for transacting the business of the courts, a different principle prevails. These rules are the laws of the court and are, in relation to the federal courts, laws arising under the constitution of the United States, and consequently not subject to state regulations. It is in reference to this principle, that the 17th section of the same judicial act authorizes the courts of the United States to make all necessary rules for the orderly conducting business in the said courts, provided the same are not repugnant to the laws of the United States; and under this power, the different circuit courts, at their first sessions, adopted the state practice as it then existed, which continues to this day, we believe, in all the states, except so far as the courts have thought proper, from time to time, to alter and amend it Indeed, the counsel for the plaintiff, in this case, seemed to admit the distinction between general laws affecting rights, and those which relate to the practice of the courts; but still he contended, that the act of assembly in question, afforded no rule of decision for this court and could not be pleaded in bar of the action, because it was enacted since the year 1789. Now, it is most clear, that a law which discharges a contract is no more a law of practice, than one, under the sanction of which, the contract was made. If it would bar the action in a state court it would equally do so in a federal court; although the particular mode of setting up the bar, might depend upon the practice and rules imposed by the state laws upon the former courts, and those which the latter may have thought proper to adopt.

This is the Erie doctrine, stated succinctly more than a century before Justice Brandeis did so for the Supreme Court. Pretty remarkable.

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On Ree Dolly, J.D. Vance and Empathy for Low-Income Whites (or, What Hillbilly Elegy is Good for)

This is my fourth and final installment about J.D. Vance’s Hillbilly Elegy:  A Memoir of a Family and Culture in Crisis.

One striking aspect of the wide-spread kudos heaped on Hillbilly Elegy is that readers do not seem put off by J.D. Vance.  That is, many (most?) readers appear to sympathize (for lack of a better word) with him, even if they cannot empathize with the circumstances of his upbringing and his struggle socially to transition to Yale Law.  When you consider how many outlets exist for poking fun at low-income, low-education whites, sometimes referred to as “white trash” (think:  Wal-Mart shoppers,  lots of reality television shows poking fun at the white working class, lots of hateful Tweets demeaning this group, the presumptive Trump voter), this attraction to Vance is surprising.  Is it really possible to “clean up” so well, so quickly?  I knew Yale law degrees were valuable, but Vance’s seems to be working miracles.

This generally positive response to Vance reminds me of a similar response to Ree Dolly, the 17-year-old heroine of the movie “Winter’s Bone,” which won the Grand Jury prize at Sundance in 2010.  If you saw the film and remember it, that is likely because Jennifer Lawrence starred as Ree.  Indeed, for this her breakout role,  Lawrence was nominated for the Academy Award for best actress. (The film was nominated for best picture).  Ree is the daughter of what would widely be considered a “white trash” family.  Yet she is nothing short of heroic as she courageously rises above the meth-making and hillbilly-version-of-organized-crime circumstances of her extended family.  She takes plenty of hard knocks–literally as well as psychologically–in the quest to prove her father’s death so that she can prevent loss of the (very modest and “trashy”) family home to the bail bond company that secured her father’s release after his last foray into the illicit drug scene.  Along the way, however, it is clear that Ree prioritizes the well-being of her younger siblings–and keeping her nuclear family together in the face of her mother’s mental incapacity and father’s death.  I recorded some of my thoughts about “Winter’s Bone,” Ree and our reaction to her and her milieu back in 2010 here and here.   The most salient quote from one of those posts follows:

Film critics have touted Ree as brilliant, a feminist heroine, a modern-day Antigone.  Like many film goers to whom I have spoken, they look past her trappings and her kin, and they see her value.  This is progress—but then, Ree’s character and courageous acts are exceptional.

So Ree is brilliant, and J.D. is compassionate and discerning.  (And if Ree is Antigone, what figure from Greek tragedy might J.D. be?)  I guess I’m surprised by these assessments because I grew up a little too close to where both of these “characters” come from.  As I have suggested elsewhere in this series of posts, maybe my response, my skepticism is a case of familiarity breeding contempt.  (And to be clear, I feel contempt for neither Ree nor J.D., but my relationship to both is complicated by considerable familiarity with their milieu.)

Or maybe I’ve just heard so much denigration of low-income whites in my years as an academic that I expect the worst (at least in this regard) from liberal elites.  A number of scholars of socioeconomic class have observed that hillbillies, rednecks and such are the only “identity” group not protected by political correctness (see here, here and here, collecting sources; plus herehere, and here).  Given that it’s ok to engage in micro-aggressions (and worse!) against low-income, low-education whites, what gives for Ree and J.D.?  How can they be heroes?  Presumably because  both rise above their circumstances.  (Interestingly, both also remain loyal to parts of their families, despite those family members’ anti-social practices).

If we coastal elites have this capacity to respond with compassion to Hillbilly Elegy despite the provenance of its protagonist, maybe the book has some redeeming value after all.  Maybe it’s good for something besides satisfying our voyeuristic curiosity about the enigmatic Trump voter (and, of course, making J.D. Vance a very rich man).  Maybe, in fact, it’s particularly useful for educators– including legal educators.

In January, I participated in an AALS 2017 panel on “Cultivating Empathy.” I spoke about how the use of film excerpts in both my Law and Rural Livelihoods and Feminist Legal Theory courses helped to foster student empathy for low-income, low-education whites.  My law school, UC Davis, features an overwhelmingly left-leaning student body, and as a community we were nearly universally flummoxed by the outcome of the 2016 Election.  In a sense, our law school is its own echo chamber.  Yet I noticed that when I showed even brief excerpts from films such as “The Accused,” “North Country,” and “Winter’s Bone,” students responded with great empathy to characters like Sarah Tobias, Josey Aimes, and Ree Dolly–all low-income, low-education, working-class white women.   If we see these socioeconomically disadvantaged whites first as human beings and only secondarily as  (presumptive) Trump voters,  it’s not so hard to empathize with them, to process the stories of their lives, to “get into their heads” in some small way and to imagine having to make the very difficult choices they must make to survive, never mind thrive.

After that AALS panel, a  law professor who teaches at a state university law school in the midwest approached me and said he thought my plea for a more empathic approach to low-education whites could help him and his colleagues better understand their students, most of whom are conservative to one degree or another, and many who are Trump supporters.  Of course, not all conservative white voters are low-income and/or low-education (an angle on the 2016 election often lost on the media; see more here and here) but some overlap exists.  So, wouldn’t it be great if law profs could take their generally positive reaction to J.D. Vance and Hillbilly Elegy and use it to inform how they engage their own students who may be similarly situated to J.D. before he got that fancy schmancy Yale Law degree.  In this regard, we should credit Yale Law’s Amy Chua, who saw value in Vance as a student and mentored him while we was at Yale.  (One can’t help wonder the extent to which the sensationalism of Chua’s Battle Hymn of the Tiger Mother inspired similar sensationalism in Hillbilly Elegy, but I digress).

UC Davis Undergraduate Education has just launched a #firstgen initiative.  In its initial phase, the program encourages professors who are the first generation in their family to get a college degree to “out” themselves (as by wearing to class these cool T-shirts they have supplied to us) so that first gen students can find us, seek us out for mentoring.  The program also aims to educate faculty about first gen student perspectives, encouraging us to be transparent about expectations and grading, reminding us that not all of our students will have parents who can coach them toward success, who will understand the significance of opportunities on offer, let alone how to actively seek out those opportunities.  Among the startling figures that have come to the fore with this new UC Davis initiative:  42% of our undergrads are first gen, a number that no doubt reflects the enormous racial and ethnic diversity of California and our student body.  Further, more than 300 faculty members from across campus have self identified as first gen by joining an online faculty directory.  At an initial gathering, I noticed that many of them/us appeared to be non-Hispanic white, though perhaps that is a generational thing.  Our law school also has a #firstgen program in the works.  A few other law schools already boast these, and numerous undergraduate programs do, too (see more here, here, herehere, and here).

These “#firstgen” initiatives are important in that they remind us to see and assist  not only racial and ethnic minority students, but also would-be class migrants who are white.  We must be mindful of what all of these students need to succeed in a very different world than the one from whence they come.  White skin is not a magic tonic.  And as much as Hillbilly Elegy annoys me (see prior posts here, here and here for elaboration), if the book is good for something , that something may be cultivating empathy among those who can help aspiring class migrants–whatever their race or ethnicity, remembering that white people “have race,” too–to achieve the increasingly elusive “American Dream” via access to higher education.

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Bushrod Washington and the Presumption of Constitutionality

One of Randy Barnett’s many contributions to constitutional law is his argument that the current presumption of constitutionality should replaced by a presumption of liberty. While there is no single source for the presumption of constitutionality, Justice Washington is often cited for this proposition. The quote comes from the conclusion of his opinion in Ogden v. Saunders (1827):

It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt. This has always been the language of this Court when that subject has called for its decision, and I know that it expresses the honest sentiments of each and every member of this bench.

While this line was quoted in three different dissenting or concurring opinions by Justice Brandeis, what catapulted Justice Washington’s admonition to fame was Franklin Roosevelt’s Fireside Chat defending his 1937 Court-packing proposal:

For nearly twenty years there was no conflict between the Congress and the Court. Then Congress passed a statute which, in 1803, the Court said violated an express provision of the Constitution. The Court claimed the power to declare it unconstitutional and did so declare it. But a little later the Court itself admitted that it was an extraordinary power to exercise and through Mr. Justice Washington laid down this limitation upon it: “It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity until its violation of the Constitution is proved beyond all reasonable doubt.”

But since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State Legislatures in complete disregard of this original limitation.

I wonder if Brandeis and FDR chose this quote because Justice Washington seemed to invoke the authority of George Washington. Unlike Corfield v. Coryell, which was about a constitutional clause that became even more important as a reference following the ratification of the 14th Amendment, there is nothing particularly special about Ogden or about Washington’s view of judicial deference.

 

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Presidential Declassification of Information

I just wanted to observe that the recent controversy over the President’s alleged disclosure of classified information to the Russian Foreign Minister was discussed in analogous way by an episode of “Yes, Prime Minister.” Prime Minister Hacker and Sir Humphrey have a conversation after Bernard Wooley tells the press (in a garbled way) that the PM is above the law with respect to the disclosure of information under the Official Secrets Act.

The PM: We must do something to improve my relations with the press, which deteriorated considerably when my private secretary told them I felt I was above the law when it came to official secrets. What’s the constitutional position, Humphrey?

Sir Humphrey: Well, in a sense, Bernard was right. The question, in a nutshell, is what is the difference between a breach of the Official Secrets Act and an unattributable, off-the-record briefing by a senior official? The former-a breach-is a criminal offence. A briefing is essential to keep the wheels turning. Is there a difference or is it a matter of convenience and interpretation? Is it a breach of the act if there is an unofficial, non-attributable briefing by an official who’s been unofficially authorised by the Prime Minister?

Sir Humphrey: Not if it’s been authorised by the PM, no. I should decide if it’s in the national interest for something to be disclosed, not officials. Last week’s leak must’ve come from an official.

Sir Humphrey: But what if the official was officially authorised or even unofficially authorised? What if the PM officially disapproves of a breach of the act, but unofficially approves? Then a leak would be unofficially official, but officially unofficial.

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FAN 152 (First Amendment News) Gilbert Roe — Free Speech Lawyer is Subject of Forthcoming Book

Breaking News from the New York Times

“. . . Mr. Comey had been in the Oval Office that day with other senior national security officials for a terrorism threat briefing. When the meeting ended, Mr. Trump told those present — including Mr. Pence and Attorney General Jeff Sessions — to leave the room except for Mr. Comey.”

“Alone in the Oval Office, Mr. Trump began the discussion by condemning leaks to the news media, saying that Mr. Comey should consider putting reporters in prison for publishing classified information, according to one of Mr. Comey’s associates.”

_______________________

Do not be bluffed on this subject of free speech. Remember that the first amendment of the Constitution stands.  I would say it with greater emphasis if I were a member of the forces of the [Wilson] Administration; for I want to say that if any administration in this country wants to seek trouble, it will find it along the line of denying the constitutional rights of free speech and free press. — Gilbert Roe (1917)

Indeed, [Gilbert] Roe provided the most trenchant and prescient of all criticisms of the Espionage bill by stressing the dangers of the intent requirement. — David Rabban

Gilbert Roe

By and large, First Amendment law is Supreme Court centric. That is, we equate the law, logic and history of freedom of speech with the names of Justices — Holmes, Brandeis, Black, Douglas, Brennan, Scalia, and Roberts. The lawyers behind the cases are all-too-frequently ignored . . . save, perhaps, for Floyd Abrams. But if one looks around the black robes and then turns the clock back, one name, among others, surfaces — Gilbert Roe (1864-1929).

Among other things, Gilbert Roe was the lawyer for the Free Speech League. He  knew and once worked with Louis Brandeis before the latter became a Justice. In 1917 Roe represented Max Eastman, the petitioner in Masses Publishing Co. v. Patten (1917, per Hand., J.). Mr. Roe also argued the case on appeal to the Second Circuit (246 F. 24), which reversed Judge Hand’s opinion.

Before the Masses case Roe was Eastman’s lawyer in a criminal libel case. See People v. Eastman, 89 Misc. 596, 152 N.Y.S. 314 (N.Y., 1915). Before that Roe was the attorney for the petitioner in Fox v. State of Washington (1915). And in April of 1917, he testified before Congress against the Espionage Act.

In his amicus brief in Debs v. United States (1919) Roe, along with the attorney for the petitioner, challenged the Blackstonian interpretation of freedom of expression.

Once this Court says that public discussion of the measures of government can be punished because of any intent which a jury may find caused the discussion, or because of any result which a jury may think will follow such discussion, then the free speech and free press of the Constitution is destroyed. — Gilbert Roe, amicus brief in Debs v. United States (1919)

 Statement of Gilbert Roe, representing the Free Speech League, House Committee on the Judiciary (65th Congress), April 12, 1917 (re proposed bill “To Punish Acts of Interferference with the Foreign Relations, the Neutrality, and the Foreign Commerce of the United States”).

Gilbert Roe & Robert La Follett (credit: Wisconsin Historical Society)

Related

Gilbert Roe died in 1929.

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Beyond what Professor David Rabban wrote in his seminal Free Speech in its Forgotten Years (1999) and Mark Graber in his Transforming Free Speech (1991), this January Gilbert Roe will be the object of a full-length biography by Professor Eric B. Easton.

The book, to be published by the University of Wisconsin Press, is titled Defending the Masses: A Progressive Lawyer’s Battles for Free SpeechHere is the abstract:

“Free speech and freedom of the press were often suppressed amid the social turbulence of the Progressive Era and World War I. As muckrakers, feminists, pacifists, anarchists, socialists, and communists were arrested or censored for their outspoken views, many of them turned to a Manhattan lawyer named Gilbert Roe to keep them in business and out of jail.”

“Roe was the principal trial lawyer of the Free Speech League—a precursor of the American Civil Liberties Union. His cases involved such activists as Emma Goldman, Lincoln Steffens, Margaret Sanger, Max Eastman, Upton Sinclair, John Reed, and Eugene Debs, as well as the socialist magazine The Masses and the New York City Teachers Union. A friend of Wisconsin’s progressive senator Robert La Follette since their law partnership as young men, Roe defended ‘Fighting Bob’ when the Senate tried to expel him for opposing America’s entry into World War I.”

“In articulating and upholding Americans’ fundamental right to free expression against charges of obscenity, libel, espionage, sedition, or conspiracy during turbulent times, Roe was rarely successful in the courts. But his battles illuminate the evolution of free speech doctrine and practice in an era when it was under heavy assault. His greatest victory, including the 1917 decision by Judge Learned Hand in The Masses Publishing Co. v. Patten, is still influential today.”

Prof. Eric Easton

How the book came about: “I was looking to write something about Masses Publ. Co. v. Patten, but couldn’t find an approach that hadn’t already been done . . . and done well.  I decided to look at the human side of the case. Again, I found Hand and Eastman well covered (and Patten not terribly interesting).  But Roe seemed like a possibility, although I didn’t know who he was. Brief mentions of him in books I had read (Rabban, Graber) hadn’t really registered with me.

“I wrote to the University of Wisconsin Law Library, among others, to see if they might have some of Roe’s papers, and a librarian there sent me a Westlaw printout of Roe’s published cases (something I could have done myself, but didn’t). My interest was really piqued when I saw some familiar names as parties. When I read the cases, I knew I had something, and plunged into his papers (with La Follette’s in the Library of Congress) and his wife’s (at the Wisconsin Historical Society).”

“What followed was the most enjoyable scholarly experience of my career:  a new discovery nearly every day, a fascinating cast of characters, and a true unsung hero in the evolution of American freedom of speech.  I only hope I have done him justice.” [Source: e-mail to RKLC]

Professor Easton will present a paper at the October Masses conference at New York University Law School. His paper is entitled: “The Role of Gilbert Roe, the Masses attorney.”

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