会说话的鹦鹉–talking parrot

Petra loves the talking parrot that is on the way to Wa-Mar (Walmart) in Shekou. He makes money for his master by saying,

nihao_hello-chinese-character1

That means “hello” in Mandarin. Then, the customer pays the master, and the customer may feed the parrot from seeds made available for that purpose.

China is a wonderous place for a little white girl with a heart of gold and silver slippers.

IMG_0457RGK

 

 

The internment of US citizens of Japanese ancestry

Photo credit: Professor Michael Bess. See here.

Photo credit: Professor Michael Bess. See here.

The holiday season is upon us. Most of us try to think good thoughts during this time. That is true even for those of us who are unbelievers. From the Jackson List, here is something in that vein worth reading and celebrating:

For the Jackson List:

The background history is well known—

· On December 7, 1941, Japanese attackers inflicted grave damage on the United States Navy at Pearl Harbor, Hawaii.

· The next day, President Franklin D. Roosevelt sought and obtained a congressional resolution declaring that the U.S. was at war with Japan.

· In February 1942, President Roosevelt signed Executive Order 9066, authorizing the Secretary of War and U.S. military commanders to prevent possible espionage and sabotage by declaring parts of the U.S. to be military areas, excluding persons therefrom, and taking other steps that commanders deemed appropriate.

· Pursuant to that authority, the U.S. Army soon declared the west coast of the U.S. to be an area under military command.

· The Army then issued a series of security orders directed at persons there who were of Japanese descent (both immigrants and U.S. citizens). These orders included curfews, then exclusions from coastal areas, and then directives to report to internment camps in the interior of the country.

· The U.S. Congress and President Roosevelt then enacted criminal laws penalizing violations of those orders.

· During the war years, over 100,000 Japanese-Americans, obeying these orders, were interned by the U.S. government.

· Some—relatively few—Japanese-Americans refused to obey those government orders. Some were prosecuted and convicted, and some of their appeals reached the Supreme Court of the United States.

· In 1943 and 1944, U.S. and allied forces, fighting island to island and at horrific cost, began to prevail – the war moved ever farther west, away from the U.S. and its people, toward Japan, and toward Allied victory.

· In June 1943, the Supreme Court affirmed unanimously a curfew violator’s conviction, holding that the Constitution empowers Congress and the President to enact and enforce such a restriction in what they regarded as the interest of national security (Hirabayashi v. United States).

· Two other Japanese-American cases – one challenging the constitutionality of a military exclusion order (Korematsu v. United States), the other challenging the legality of the government’s internment of a concededly loyal U.S. citizen of Japanese ancestry (Ex parte Endo) – were argued before the Supreme Court in October 1944.

As decisions in those cases were impending (and probably a Supreme Court leak tipped off the executive branch that decisions, perhaps adverse, were coming very soon), the United States government decided … to stop.

On Sunday, December 17, 1944 — seventy years ago today — General H. Conger Pratt, the U.S. Army’s western commander, located in San Francisco, issued Public Proclamation No. 21. It revoked, effective January 2, 1945, the military orders that had resulted in the internment of Japanese-Americans.

The Supreme Court then acted, the very next day.

In Ex part Endo, which the Justices and the press regarded then as the big case/the frontal assault on the internment system, the Court held unanimously that the government had no legal authority to intern a loyal citizen.

In United States v. Korematsu, a lagging case regarding a citizen’s conviction for violating back in 1942 an order that excluded him, based only on his Japanese-American ethnicity, from the coastal area in which he lived, a divided Court—three, including Justice Jackson, dissented—upheld the constitutionality of the executive branch’s actions in what it claimed to have been national security interests.

United States government treatment of Japanese-Americans during World War II is and should be a topic of constant study and reflection. Those executive (presidential and military) and congressional actions show how injury, knowledge, power, fear, ignorance and prejudice can combine to produce oppression. The judicial decisions show deference, rationalizations and perhaps institutional abdications.

General Pratt’s announcement of December 17th also shows, however, something that is hopeful. It was possible, and thus it is possible, for officials to wake up, to rethink, to change course, to improve behavior, to turn pages. Even when officials act late, and even when they act in response to forces and developments that largely have forced their moves, such actions are the promise of self-government.

* * *

To Professor John Q. Barrett, Professor of Law, St. John’s University, New York, NY and Elizabeth S. Lenna, Fellow, Robert H. Jackson Center, Jamestown, NY thank you for reminding us that redemption is possible even for governments. And, more broadly, thanks for the Jackson List, it is a pearl of great price.

RGK

Holiday season down under

Keller's birthday is in December, and Christmas follows on not much later. X-Mas forecast for Albury, Australia: 64 / 80 °F. Heavy rain, and the more sun than clouds. Christmas especially happy this year, with new baby Indigo. Also, stress brought down a small notch too. Stacey submitted her PhD dissertation (like Keller, on the biology of fishes) last week. Two Dr. Kopf's soon.  Reuben the dog remains goofy. Fletcher the boy remains curly.

Keller’s birthday is in December, and Christmas follows on not much later. X-Mas forecast for Albury, Australia: 64 / 80 °F. Heavy rain, and then more sun than clouds. Christmas especially happy this year, with new and very cute baby Indigo. Also, stress brought down a small notch too. Stacey submitted her PhD dissertation (like Keller, on the biology of fishes) last week. Two Dr. Kopfs soon. Reuben the dog remains goofy. Fletcher the boy remains curly.

Posner on greatness

Professor Collins’ series on Judge Posner give us many insights into the thinking of a great judge. The irony is that Posner doesn’t care about being great. He is bored by the idea.

It is not that Posner lacks for ego. Oh, God(s), no! He has ego aplenty. In fact, his ego is so strong that he “nicht eine Scheiße” about the opinions of others. His thinking, his research, and his writing is what he cares about. If others find it wrong, or even immoral, Posner is perfectly indifferent to their opinions. What he does care about–what drives him–is the quality of his intellectual effort and the joy that he derives from that endeavor.

RGK

When a quasi-sick sap sentences a really sick controlled substance seller

Yesterday, I did something out of character–I don’t think I have ever done anything quit like it before. I sentenced a guy in his early fifties to time served plus a life of supervised release even though his criminal history was IV, he sold drugs and probably kept a gun under his sofa. He cooperated with the government, but the cooperation, while helpful, was not of the “hero” variety.  The government moved for a departure under the Guidelines and the statute. The really good and very fair AUSA recommended a thirty percent reduction from the low-end of 150 or so months under the Guidelines. By doing so, the government essentially freed me from the ten-year statutory minimum sentence.

As a part of, and in conjunction with, granting the departure motion, I varied downward even more than I might otherwise have done ’cause the guy was really sick. In fact, over the last 23 years as a district judge, he is the sickest person I have seen at the time of sentencing. And I have seen a bunch of sick folk.

Sentencing had long been delayed for significant surgeries and other important medical procedures. The defendant suffered from serious heart problems and serious problems with cancer. The fellow had a list of medications as long as your arm. He could barely walk with his cane. Yet the Bureau of Prisons said “no problem,” they could care for him in a humane fashion. Incidentally, I don’t doubt the BOP.

In the end, I just couldn’t see that it made sense to put the guy in prison. I uttered a bunch of mumbo-jumbo at sentencing that I truly meant and I hope makes sense, but it was, nonetheless, a rationalization for my instinct. My gut told me that no one–the public, the defendant, the BOP, or other drug dealers–would be served well or deterred by a prison sentence for this fellow.

Now, here’s the kicker. I have had cancer (Hodgkin’s lymphoma), and I may still have it. In January, I will undergo chest surgery (via VAT) to take out a nodule in my lung. The surgeon will also strip out some lymph nodes adjacent to the lung. The humor, I mean tumor, board thinks we should definitively determine what is going on in order to deal effectively with cancer if there is some still lurking in or around my lung.  Because of the anatomy of the human body, thoracic surgery is the only option.

So why do I write about this? I do not write to discuss the merits of my sentencing decision. Rather, I write about this case in pursuit of my “jihad” for transparency. Did my health status impact my sentence? I don’t think so, but the truth is that one can never know for certain about such things.

In the real world, judges have personal issues that they balance all the time against an abstract standard of impartiality. These types of issues are not susceptible to black letter ethics rules or law. Such decisions are made by the judge himself or herself after serious reflection. We do our best and consider these matters with utmost seriousness, but in the end the public and the bar must of necessity rely upon our sense of honor and our knowledge of ourselves. That sounds wishy-washy. It is. But, that’s life and that’s the truth.

RGK 

 

What’s really behind the Sony hack? “I’m so ronery!”

The world pretends to ponder the motivation for the Sony hack. In our racist and capitalistic viciousness, we consciously overlook the harm our isolation of North Carolina, I mean Korea, has caused their diminutive leaders.

The hack was a cry for help, a helpful trigger warning if you like. Kim Jong Un, just like his father Kim Jong-il, is “so ronery” it hurts. We must show empathy for survivors of roneryness. I am cancelling court today in solidarity.

Although it may be almost more than you can handle, view the following, and then weep with me in empathy for all those who are so ronery.

RGK

The value of law reviews to judges

Judge Harry T. Edwards

Judge Harry T. Edwards

Judge Harry Edwards is a distinguished jurist, and he was a distinguished practitioner and then a highly regarded law professor at Michigan. He has long been known for his criticism of law teaching as focusing too much on the obscure and the theoretical to the exclusion of doctrine and practice. See Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (October, 1992).

The judge has now written an essay entitled Another Look at Professor Rodell’s Goodbye to Law Reviews, 100 Va. L. Rev. 1483 (2014).  He concludes this way:

I am not advocating a return to the narrow-minded, provincial doctrinal scholarship that Professor Rodell singled out for criticism. My hope is that law schools will lead the way in valuing the work of all good scholars, those who write articles focused on professional practice, procedure, doctrine, legislation, and regulation, as well those who focus on theory, philosophy, and empirical studies. The law schools and law reviews should consider seriously Professor Rodell’s view that “law is supposed to be a device to serve society, a civilized way of helping the wheels go round without too much friction.” If the status quo remains, our profession may find itself criticized for merely “diddling while Rome burned.” Professor Rodell’s memorable phrase is as apt today as it was when he wrote it in 1936.

Id. at 1511.*

My focus in this post is on law reviews as opposed to law teaching more broadly. With that said, I am in general agreement with Judge Edwards. Most of the time, most law reviews are not helpful to most judges and most practitioners.

Almost 20 years ago, after a lot hard work and in celebration of the 75th anniversary of the Nebraska Law Review, I studied the impact of the Nebraska Law Review on the Nebraska Supreme Court over a span of 25 years. I found that over that period, the Nebraska Law Review had little apparent impact upon published opinions of the Nebraska Supreme Court whether measured quantitatively or qualitatively. In response to that finding, I made a detailed suggestion about how that law review might become more valuable to judges and practitioners. See Richard G. Kopf, Do Judges Read the Review? A Citation-Counting Study of the Nebraska Law Review and the Nebraska Supreme Court, 1972–1996, 76 Neb. L. Rev. 710, 734-736 (1997).  Stripped of the details (which can be found in the article), I suggested the creation of an editorial partnership between student law review editors and judges whereby judges might play a much more significant role in the selection of some fixed percentage of the articles published each year. I continue to think that is a good way to bridge the practicality gap.

RGK

*Professor Michael Dorf has written a particularly pointed critique of Judge Edward’s essay. See Michael Dorf, Judge Harry Edwards Is Still Unimpressed With Legal Scholarship, Dorf on Law (December 15, 2014). You should read it.

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