erik lundegaard

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Friday August 20, 2010

John Paul Stevens Quote: Citizens United

On September 9th last year, Stevens engaged in a classic version of advocacy-by-interrogation during the argument of Citizens United v. Federal Election Commission...

The Court had first heard arguments in the case in March, 2009, and the questions raised then were mostly narrow ones... But, in June, the Court issued an unsigned order asking for the case to be reargued on new terms. Such an order, which requires a majority, had never been issued since Roberts became Chief Justice, in 2005, and only rarely in earlier years. The Court now told the lawyers to address much broader issues about the relationship of corporations to the First Amendment..l.

For a century, Congress and the Supreme Court had been restricting the participation of corporations, and individuals, in elections, mostly through limits on campaign contributions. The Court had come to see campaign spending as a form of speech, but one that clearly could be regulated, especially if the speaker was a business. The notion that corporations did not have the same free-speech rights as human beings had been practically a given of constitutional law for decades, and the 1990 and 2003 decisions (both joined by Stevens) reflected that consensus. Now the Court seemed open to what had been radical notions—that corporations had essentially the same rights as individuals, and could spend potentially unlimited amounts of money in elections.

Stevens never uses his questions to filibuster, and his first query was simple. “Does the First Amendment permit any distinction between corporate speakers and individual speakers?” he asked Theodore B. Olson, the lawyer for Citizens United and a Solicitor General in the second Bush Administration.

Olson hedged, saying, “I am not—I’m not aware of a case that just—”

“I am not asking you that,” Stevens persisted. “I meant in your view does it permit that distinction?”

Finally, Olson said, “I would not rule that out, Justice Stevens. I mean, there may be.”...

His strategizing was for naught. In a decision announced on January 21st, Kennedy, joined by the four conservatives, wrote a breathtakingly broad opinion, overturning the 1990 decision and much of the 2003 decision, and establishing, for the first time, that corporations have rights to free speech comparable to those of individuals...

Stevens’s ninety-page dissenting opinion in Citizens United (the longest of his career) was joined in full by Ginsburg, Breyer, and Sotomayor, and was a slashing attack on the majority, laden with sarcastic asides. “Under the majority’s view, I suppose it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech,” he wrote...

Stevens charged that the way the majority had handled the case was even worse than the legal outcome. “There were principled, narrower paths that a Court that was serious about judicial restraint could have taken,” he wrote. “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” He added, referring to the Court, “The path it has taken to reach its outcome will, I fear, do damage to this institution.”

—from Jeffrey Toobin's article “After Stevens” in the March 22nd issue of The New Yorker

Posted at 06:36 AM on Aug 20, 2010 in category Law
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Saturday July 03, 2010

Q&A with Gerry Spence

For my day job I had the privilege of interviewing Gerry Spence, the celebrated Wyoming trial attorney, a few months back. He's one of those guys who, in explaining his job, explains life. Here's an excerpt:

What are some of the biggest changes to the law during your career?
The Patriot Act is a huge change in the law. And there’s been an enormous change on the idea of terrorism. We are afraid of everything. Ultimately we are so afraid that we quietly give up our rights. We are unable to understand that our greatest danger is the loss of our few remaining rights.

Fear is a common theme in your books, isn’t it? From the childhood fears you write about in The Making of a Country Lawyer to your fear in the courtroom in How to Argue and Win Every Time.
I think we’ve been taught not to admit our fear, even to ourselves. We’re all supposed to be brave. We’re supposed to view our lives and those of our opponents without fear. But that isn’t who we really are. We’re all really very afraid. I think we have to recognize our fear and deal with it in an appropriate way. Once we face it and own up to it, it will energize us and, magically, it will retreat like a cowering dog.

There's also this:

What makes a good storyteller?
The listener can’t hear anything that doesn’t have the ring of truth to it. We happen to be one of the few species on the face of the earth that will lie and hurt members of our own species. But we’ve also got the biological advantage of all of these little psychic feelers that are out there feeling whether or not this person is being truthful.

And here's a big part of his story:

You were a prosecutor for two terms before becoming a lawyer for insurance companies …
I’ve committed a lot of sins in my life.

… Then you switched to the other side. Why?
When I first went into the law, if you were an important lawyer you represented an insurance company. That was proof that you had made it. I can remember how proud I was when I went rushing home to tell my wife that I’d been hired by an insurance company.

Then, as I matured, I began to see what was really going on in the legal system. I saw the power of money, and the power of insurance companies, and poor people that couldn’t get representation; and poor people who, if they could get representation, were represented by lawyers who couldn’t afford to take the case and deal with it in a correct fashion. And if you are sensitive to and become educated from your experience, there comes a time when either you respond to that or you become calloused against it. And it just so happens that I grew up with poor people so I recognized the helplessness of ordinary people against the power structure. And there came a time when I couldn’t represent the power structure anymore. Came in a specific case.

What case?
I was defending a woman for an insurance company. And of course when you defend for an insurance company the court lies to the jury—never tells the jury that the little old lady sitting there, in her floppy hat, and looking very poor herself and very upset, has $5 million worth of insurance.

She had run into a man with her car. He had worked all of his life in a refinery in Casper, and was about to retire. He hoped to spend his retirement with his grandchildren, do some fishing and enjoy the retirement that he’d earned. And he was hurt by this woman with her floppy hat with all of the insurance. She was totally at fault. And I walked in there on behalf of the insurance company and did things to that poor man on the stand that undercut his credibility. They were the skills of a defense attorney, and the plaintiff’s attorney couldn’t combat it. And the jury returned a verdict against him. He got nothing.

That evening I was at the Safeway store, gathering up food for a celebration, and in the checkout line here was this old man, the plaintiff, ahead of me. And he turned around. That was as close as I’d ever been to him. I could see his painful eyes—pain was on his face—and I said to him, “I’m sorry that this all turned out this way for you.” And he said, “Oh, that’s all right, Mr. Spence. You were just doing your job.”

And I thought, “Just doing my job?”

I helped him out with his groceries to his car. That evening I’m in bed with my wife, telling her this story, and I said, “Is that my job? To cheat old men out of justice?” She didn’t answer. Didn’t say a word. The next morning I got up and contacted my partner, Robert R. Rose Jr., who became chief judge of the Wyoming Supreme Court. And I said, “You know, we’re not going to do this anymore,” and he said, “No, we’re not.” I wrote nearly a score of letters to as many insurance companies that said you’re going to have to get somebody else to do this. And we’ve never, never represented an insurance company or large corporation or the government to this day.

Read the whole thing here.

Posted at 10:14 AM on Jul 03, 2010 in category Law
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