Friday Review: A Place I Haven’t Been in a While

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Library with a book ladder and lampOn my way home from the office yesterday, I darkened the doors of a place I haven’t been in a while: the public library. When I was throwing some things out recently, I stumbled upon my old library card. The card sat in my car for a while. And today I used it. Anticipating upcoming travels, I thought I would allow amazon.com or Apple’s iBooks service to flounder without me for a few weeks and get a couple of library books.

How long had it been since I last visited a library? I’m not sure. But the librarian laughed when I presented my card and said that it had expired in 2009. 2009 was the year that I purchased my Kindle and began helping Amazon and Audible pay their mortgage. When I noted this to the librarian, she laughed at me again and said that I can check out ebooks and audio books through the library and put them on my Kindle. Yesterday, I picked up Sam Harris’ Waking Up.

This morning, I logged onto Georgia’s Library System. Within minutes, I was logged on to their ebook/audiobook borrowing section. And minutes after that, I was redirected to the Amazon site, where I clicked a couple of things and a library book was on my Kindle. I downloaded the biography of Elon Musk where I will hope to feel optimistic about the future of technology in America and The Garden of Beasts, where I anticipate I will find parallels to the modern American political climate.

I may be the last person to this party. If I am, don’t roll your eyes. Just take pity. If you still aren’t at the party, go and visit a public library. It turns out they’ve changed with the times.

New 11th Circuit Interpretation of a Portion of the Sentencing Guidelines

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One of the hats I wear is that of the Federal opinions editor for a caselaw update that the Georgia Association of Criminal Defense Lawyers publishes monthly. It has been a slow month for Eleventh Circuit Opinions. But there is one that I will be writing up. And this blog post will pull double duty as a caselaw summary for that publication.

The case is United States v. Sheels, a January 31 published opinion. This case deals with whether it was proper to impose a four-point enhancement under 2G2.1(b)(4) of the Federal Sentencing Guidelines. The question turns on what is sadistic of masochistic conduct.

The Point:

For purposes of determining whether to impose a four-point enhancement for a conviction for sexual exploitation of a minor by production of sexually explicit material, it is proper to impose the enhancement even if the defendant is the recipient of sadistic or masochistic conduct was directed at him rather than from him.

The Facts:

Mr. Sheels was convicted of one count of producing and one count of receiving child pornography. He received a sentence of 600 months to serve. The sentencing added four points to his base level offense of 32 because the material contained the following as defined by 2G2.1 of the Federal Sentencing Guidelines:

If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels.

Mr. Sheels argued that the enhancement did not apply because he was the recipient of the argument. The Court affirmed, having determined that the depiction of such conduct, in any form, was sufficient to apply the enhancement.

The Reasoning:

The Court found that it was not necessary to look further than the plain language of the guidelines to answer the question. “Involved material that portrays,” applies to the conduct in any form. The Court then went to a dictionary definition of the word involve.

There were no cases directly on point. And Mr. Sheels relied on some dicta from other cases potentially to support his position:

He cites a number of cases, like United States v. Hall, 312 F.3d 1250, 1261 (11th Cir. 2002) (quotation marks omitted), which contain statements like: “[A] photograph is sadistic within the meaning of Section 2G2.2(b)(3)3 when it depicts the subjection of a young child to a sexual act that would have to be painful.” But those cases merely stand for the proposition that material depicting sadistic or masochistic conduct directed towards the child is sufficient to warrant the application of a § 2G2.1(b)(4) enhancement, not that it is necessary.

Ultimately, the Court held that even the object of sadistic or masochistic conduct is subject to the enhancement. To the extent that this point was unresolved by the language of the guidelines, it is resolved now.

 

How I Handle Email (Right Now)

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Missle CommandIf I allowed it to happen, I would do nothing but read and write emails all day. I have had days where this has happened. And I have had vacations days or family events where I spent all of my time reading and writing email. And, while I have improved at it, I am pretty sure that I am still fairly bad at email. I’ve tried more email apps for the phone that you could imagine. And I’ve tried every system you can think of to try to tackle email.

I took the best general idea for what to do with email in a talk by Merlin Mann in 2007 on the topic of Inbox Zero. His general idea is that your email inbox is a terrible to do list. It is a poor texting service. And if you aren’t careful, you’ll just collect emails that number in the thousands. It’s true because I have been there. If you reply to emails, then you are just going to generate more email particularly if the email exchange is with more than two people and you are trying to make arrangements for some sort of meeting or event. For Mann, the goal every day should be to reduce emails down to zero.

Opinions differ on whether you should try to respond to every email. With that said, here is an overview of my system for dealing with email. Again, I suspect I’m not good at email. But I’m trying to build a better system to handle it.

  • I batch my email with an aim to only process it at selected point of time during the day. Email is at its most evil when you see them while you are standing in line, while you are in a conversation with someone, while you are hanging out with your family, or when you are stopped at a red light. The worst is the angry email from someone that is hard to let go of. It’s best to get all emails in a batch at pre-set times per day. Right now, my service for handling all of that is Batched Inbox. Batched inbox holds your emails and delivers them all at once at times you select. If I open up any of my mail apps, I don’t see incoming emails until they all push through at once.
  • The Scheduling Can Be The Hard Part. I’ve tried every combination imaginable. I’ve tried three times a week, once an hour, twice a day and three times a day. Before I made a recent change, I had them all come in at 11 and at 4. It turns out that this these times did not work so well. 4 is when I’m thinking about winding down the day and getting some ready for when I get home. At 11, I might be engaged in a meeting or court. Then I end up trying to process to zero as quickly as possible. Also, the emails I responded to managed to yield a response or 5 before I leave the office. There’s also a flaw in Batched Inbox. All of the emails go to a folder called “BatchedInbox” that you can actually open. And when you go there and start looking, then Batched Inbox just becomes another inbox. When I respond to something twice during the work day, I sometimes get curious about what the replies might be. Then I’m sucked in.
  • The Other Trick is To Schedule Delivery. Another part of the system is to batch the outgoing emails so that they go at a time that I schedule. Boomerang does several things. But the best thing is that it allows you to schedule when you want the email to go out. Instead of pressing send, you press another button that schedules the email to go out.
  • If Something in the Email is an Action Item, Then Take it out of Email. Email is a bad inbox. It’s a poor substitute for memory. If you need to make some issue in an email into an action item, then write it down elsewhere and archive the email. If something needs to be scheduled, then put it on the calendar. Email is a terrible calendar.

With all of that said, here is what I am now doing. All emails are scheduled to come in at 3:00 a.m. Most emails that I send in response go out at 10:00 p.m. With this system, none of my outgoing emails are reaching a recipient during the work day. Which means that they cannot reply during the work day. And all of the incoming emails come in while I am asleep. There is some conventional wisdom against checking email in the morning. But I think that this wisdom can be defied if you know that this is the one time that you will process email and what you send out will not return until this time tomorrow. Also, I am not looking at it when the rest of the world is awake. Then I leave my house knowing that I don’t have to think about email until tomorrow and knowing that I have a bunch of emails cued up to launch after I’ve gone to bed tonight.

You may read this thinking that this system is rude or that I’m not being responsive. I find that quite the opposite is true. When I do process through email, I am focused on it. I am not swatting it away or playing missle command with it. And when I answer an email, I am calm. I am not being short with people because I just read an email from an angry person.

Again, I don’t think I’m good at email because I am not so sure that it’s possible to be good at it. It’s kind of a messed up thing. But I am always trying to systematize it and make that system better.

Criminal Sentencing and the Problem of Free Will

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steamsaleCriminal calendars may be handled slightly differently in every jurisdiction. But they have one thing in common. At some point in every case, the lawyers will argue about why a person did that he did. And a judge or jury will evaluate this question and make a decision about what to do in light of that decision. In some instances, this evaluation will literally amount to life or death. In most, this decision will determine whether a person goes a away to a prison, is able to continue a course of education, or has her career choices forever limited by a label. But in each of those moments, not only the choice a person made but that person himself is judged. For that reason, how we think about free will is an important subject.

For those who are represented by thorough defense counsel, this judgment is made early and in the charging stage. The sooner you can bring a person’s full humanity to the attention of “the system” the more hope you can bring to that person. From the defense attorney’s perspective, the more complex that decision is, the better. It’s easy to pass judgment on a file and difficult to pass judgment on a person. So, you do everything you can to show to the system your client’s full humanity. Ken White wrote about this very thing:

If judges confronted the defendants’ individual humanity as they caged them one after another, they’d go quite mad.  It’s impossible and inadvisable.

The trick is to light a spark that catches the judge’s eye, that transforms your client even momentarily from an abstraction or a statistic or a stereotype into a human being with whom the judge feels a connection.  Judges are people, and people connect with each other through commonalities – family, hobbies, sports, music, and so forth.  At sentencing, a good advocate helps the judge to see the defendant as someone fundamentally like the judge, with whom the judge can relate.  It’s harder to send a man into a merciless hole when you relate to him.

Ken White was writing about the Stanford swimmer whose sentence struck many around the country as exceedingly light given his conduct.

What the system is asking itself when it passes judgment is not just how we judge the person’s action or the person himself. The best among our profession challenge the moral framework that the system uses to even pass those judgments. And that moral framework inevitably turns to free will.

Free will is a touchy subject. It is perhaps the third rail of jurisprudence, politics, and religion. For those who are interested in exploring this moral framework and the role free will has to play in it, I commend to you Sam Harris on this topic.

Harris posits that free will is an illusion and that it matters that we develop a more sophisticated understanding of it. And Harris argues that (1) we are not free to make choices independently; and (2) that our choices are not even the product of our conscious mind.

And where he goes with this argument is not where you might expect.

We live in a world of cause and effect. Even within our body, we are doing things well beyond our conscious control. We are making red blood cells, but we are not in control of whether we make them. And we did not choose who our parents or where we were born. And, for Harris, our choices emerge from “a wilderness of cause and effect” that we neither see nor fully appreciate. We carry genetic information from ancestors and a lifetime of experiences with us. And that material may well be dispositive of every decision, including whether to buy coffee or cocoa on our way to work. In short, Sam Harris argues that free will is an illusion.

The Consequence for Us and For How We View the World

For one, if our free will is an illusion, then we should chill out about a couple of things. We should be more humble about our good choices. To a certain extent, we should be no more prideful about our good choices than we are about our height. At the same time, if we have managed to choose well, we should feel fortunate about this fact in the way we feel fortunate about good health. And if we have chosen badly in the past, we should perhaps go a little easier on ourselves.

More importantly, Harris’s view of free will is important for how we view others. If other people’s choices are a manifestation of their genetics and life experience, then we should feel more compassionate and less of a sense of hatred toward those who have made exceptionally bad choices.

Let me Anticipate Your Argument

If free will is an illusion, then why have a criminal justice system? Why send any defendant to jail since there is not free will. This takes us to our next point.

Free will is an illusion, but choice still matters. Says Harris,

The fact that our choices depend on prior cause does not mean that choice doesn’t matter. To sit back and see what happens is also a choice that has its own consequences. So, the choices we make in life are as important as people think, but the next choice you make will come out of a wilderness of prior causes that you cannot see and did not bring into being.

And an understanding of free will can guide future choices in a more systematic and perhaps grander way. We can shift the the ground from which our choices arise. And I hope you will pardon me for putting in another block quote:

A creative change of inputs to the system — learning new skills, forming new relationships, adopting new habits of attention — may radically transform one’s life. Becoming sensitive to the background causes of one’s thoughts and feelings can, paradoxically, allow for greater creative control over one’s life.

This understanding reveals you to be a biochemical puppet, of course, but it also allows you to grab hold of one of your strings.

A very wise friend of mine who counseled some of my clients and testified on behalf of some of theme at sentencing, would tell them that the way to recover from an addiction had less to do with the choice to “use” in the moment and more to do with avoiding the moment. She drilled clients on what she called the “PPTs” or “persons, places, and things.” Change your landscape and eventually your “free will” acts differently.

Harris provides a helpful view of the world and a paradoxically liberating escape from free will.

If We Eliminated Social Media, We Could Read 200 Books Per Year

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I just e-filed an appellate brief. Current time is 9:38 p.m. Yes, it was one of those days. Yes, I need a shower. And, yes, it will take a while to come down from this coffee. But I want to keep a commitment I made to myself to blog every weekday. And here is what I have.

During breaks for lunch and dinner today, I listened to a little bit of the podcast, This Week in Tech. At about minute 33:00, Mike Elgan claims that if you quit social media, you would for yourself enough time to read approximately 200 books per year. I wondered where he was getting this claim, and I found the reference. The opening of the piece struck me:

Somebody once asked Warren Buffett about his secret to success. Buffett pointed to a stack of books and said,

Read 500 pages like this every day. That’s how knowledge works. It builds up, like compound interest. All of you can do it, but I guarantee not many of you will…

The average American spends 608 hours on social media and 1642 hours on television. It would take about 417 hours to knock out 200 50,000-word books. The 417 hours of book reading would likely be more valuable than spending those 417 hours on social media.

How does Mike Elgan get his news? He subscribes to a right-leaning publication and a left-leaning publication. Then he takes what he learns from reading long-form journalism and shares it to others on social media. He is a producer and not a consumer on social media. He is not at risk to get taken in by fake news.

For today, I was in my basement home office finishing up an appellate brief. So I neither watched television, consumed social media, nor read any books. I read statutes, caselaw, transcripts, and my own writing until my eyes went all blurry. Tomorrow, I have a good book waiting.

Friday Review — Michael Lewis’s The Undoing Project

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Happy Friday. I’m making a point to review a book or some other work on Fridays. Alas, I don’t have anything new that I’m ready to review today. But I wanted to mention a book that I’m listening to in audio form. That book is the latest by Michael Lewis, The Undoing Project. Lewis discusses the collaboration between Amos Tversky and Daniel Kahneman. The two researched the irrationality of the human mind. Lewis’s book is practically a prequel to Moneyball. From the New York Times review:

Their work revealed previously undiscovered patterns of human irrationality: the ways that our minds consistently fool us and the steps we can take, at least some of the time, to avoid being fooled. Kahneman and Tversky used the word “heuristics” to describe the rules of thumb that often lead people astray. One such rule is the “halo effect,” in which thinking about one positive attribute of a person or thing causes observers to perceive other strengths that aren’t really there. Another is “representativeness,” which leads people to see cause and effect — to see a “narrative” — where they should instead accept uncertainty or randomness.

I’m not very far into the Audible version of the book. And so far I like what I am reading. It appears to pair nicely with Robert Chialdini’s Pre-Suasion.

I’ll keep you posted. If anyone else is reading it and wants to discuss, please drop me a line.

Ninth Circuit Refuses to Lift Stay of Republican Administration’s Travel Ban

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Moments ago, the Ninth Circuit Court of Appeals ordered that the temporary restraining order imposed on the Republican presidential administration’s travel ban will remain in place. The Court has found that the states of Washington and Minnesota have standing to challenge the ban, that the Republican administration is unlikely to prevail on the merits in the lawsuit, and that the balance of hardship to the public interest also weighs in favor of the States over the ban.

Background

On January 27, 2017, the Republican administration issued an executive order suspending travel for 90 days from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. The EO also suspended the United States Refugee Admission Program. And it suspended indefinitely the entry of all Syrian refugees.

Shortly thereafter, the State of Washington brought suit challenging the program on various Constitutional grounds including Due Process and violation of the First Amendment. Washington sought a temporary restraining order against enforcement of the executive order, which was granted, arguing in part that “the Executive Order was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a ‘Muslim ban’ as the President had stated during his presidential campaign that he would do.”

The Federal government immediately appealed to the Ninth Circuit for a stay of the TRO.

Standing

The Court found that the states have standing to bring the suit because they could show a “concrete and particularized injury” to their university system. Teacher, students, and researchers were stranded without the ability to enter the country. Their absence threatened essential state functions.

Reviewabiliy

The Federal government argued on behalf of the Republican administration that the order was unreviewable by any court because it touched upon national security. The Court made short shrift of what would be a fairly dangerous argument to our system of government. Presidential authority under Article II is seldom if ever beyond review by an Article III Court.

Factors

The Court applied a four-part test to the government’s appeal:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.

On Due Process grounds, the Court reasoned that the Republican administration was unlikely to prevail on the merits. Because the Executive Order summarily stopped all immigrants, including permanent residents, from entering the country with no due process and restricted travel outside the country (again) without due process, the Executive Order is likely to be found unconstitutional. And because the system completely suspends the asylum process for immigrants from certain countries, it is likely to be found violative of Due Process.

Secondly, the administration is unlikely to prevail on the First Amendment grounds. Here, the Court went beyond the four corners of the Executive Order to look to the Republican Chief Executive’s intent as expressed in public statements and on social media regarding a desire to ban Muslims from entering the country.

In terms of the balance of hardship and the public interest, the Court reasoned that the Federal government has pointed to “no evidence” that any alien from one of the named countries has ever engaged in terrorism in the United States. By contrast, the states have been able to point to injury from the restriction on travel from those effected by the ban.

Next Steps

The Republican Administration will likely petition for a rehearing en banc to seek a hearing before the entire Ninth Circuit. This order was issued by a three-judge panel. And the matter could ultimately go to the United States Supreme Court. However, two things are important. First, there are only 8 justices. In the event of a tie, the Ninth Circuit ruling will be upheld. And this order does not reach the merits of the case. Rather, there is merely a TRO until the merits are reached. So, there may be an uphill battle for the Federal government on a cert. petition.

How We Interview Trial Counsel

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Ineffective counsel claims are probably the least fun part of the job at the state level in Georgia. Unlike the Federal system, where an evidentiary hearing on an IAC claim is often left for habeas proceedings, Georgia IAC must be raised at the first available opportunity, or it is deemed to be waived. This system has its benefits, but it also creates pressure on the appellate attorney to raise ineffective assistance of counsel, regardless of the issue’s viability. Having done many IAC interviews over the years, I have some basic things that I have learned to do in my approach.

  • Recognize that this interview is part of the job. Awkwardness can feel like an inevitable part of this process. But it does not have to be horrible. There are some things that I always acknowledge up front. What I am doing here is part of the process. And the lawyer you are about to interview had a difficult job to do. Criminal defense can feel like a thankless task. And if the trial attorney is a public defender or was appointed to the case, it probably feels even more thankless. I always like to start the interview by expressing gratitude to the trial lawyer for doing this job and for all that he did to try to protect the client’s right to a fair and meaningful trial. No trials are perfect. And just as the lawyer did his job to protect the client, you are there to do the same.
  • Listen. Lawyers are great at making arguments and asking questions. We sometimes are not the best listeners. Just as you have worked hard to prepare for the interview, you should work hard to listen to what the lawyer tells you in the interview. And it can be good to demonstrate how well you are listening. If the lawyer gives you a lengthy answer, stop at points along the way to say, “okay, let me see if I understand what you are saying.” Then give the fairest possible short summary of what the lawyer just said that you can possible do.
  • You Are Not There to Argue. Part of listening is to encourage the lawyer to talk to you. So, if you think that the lawyer is mistaken about his understanding of the law or memory of the facts, you should not argue. The law is what it is, and the facts are what they are. And you will have the opportunity to argue all of this to the Court at some point in the future. If the lawyer is mistaken about what happened or doesn’t remember, it can be okay to show him the transcript. But do so with an aim of being helpful, not to argue.
  • If You’ve Been in the Lawyer’s Shoes, Don’t Forget That Experience. There is nothing fun about this part of the appellate process. It’s not fun to be interviewed toward IAC, and it’s not fun to do the interview. It is important to think about what it’s like to be answering the questions and not to get caught up on what it is like to be asking them .
  • Take a Witness With You. It is a maximum in the law that no interview with a witness should be without a witness to the interview. You don’t want to be the sole impeaching witness if the lawyer later changes an answer
  • Elicit the Lawyer’s Persective on the Other Issues. Reading the trial transcript is a poor substitute for living through the trial. The lawyer lived through it. Don’t lose the opportunity to ask the lawyer for her perspective on the trial. What did she think was unfair about the trial? What does she think the appellate issues are? Another good question is, “Mr. Lawyer, if you were in my shoes doing this appeal, what would you do?” Often this question is met with a blank stare. But occasionally you will hear something that you hadn’t thought of before that point
  • Be Grateful for the Interview. No matter how you think it went, be sure that think the lawyer for his time. The lawyer did not have to sit for an interview. So, make sure that you thank the lawyer for letting you interview him. And, again, think the lawyer for being a criminal defense lawyer. It may be that you are the only person in the case who has ever told him thank you.

When the interview is over, I get my notes together and process them as soon as possible. I also try to follow back up with additional questions as soon as possible after the interview. There is no way to make this process fun. But I find that the steps I have outlined above make it a bit more palatable.

Stoicism and the Modern Lawyer

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Marcus Aurelius seemed to know the modern lawyer (though he died centuries ago). See if you can identify with the following sentiment:

Say to yourself in the early morning: I shall meet today ungrateful, violent, treacherous, envious, uncharitable men. All of the ignorance of real good and ill… I can neither be harmed by any of them, for no man will involve me in wrong, nor can I be angry with my kinsman or hate him; for we have come into the world to work together…

Marcus would have been an excellent litigator (or at least a healthy one).

Every day this year, I have started the day off with a selection of Ryan Holliday’s The Daily Stoic. If you haven’t considered ancient stoicism, you should check it out. If there is a system of philosophy out there more ready-made for lawyers, I am not sure what it is.

What Stoicism Isn’t

Forget what the dictionary or common usage tells you about stoicism. Stoicism is not a generalized ability to resist pain, and it is certainly not systemized indifference to the world around you. Such is the popularized caricature of stoicism. Stoics are engaged with the world around them in a particular way. Nor is stoicism a singular philosophy. Just as there are sects of Christianity, there are sects of stoicism. But there are some commonalities among the schools of stoicism. And none are like the popularized notion of it.

What Stoicism Is

I will not be able to explain anywhere near fully in a short blog post. I’d refer you elsewhere for more reading. Ryan Holliday’s blog is a good starting point. So are some of the blog posts on the topic by Tim Ferriss. My introduction to stoicism came from a novel that I read by Tom Wolfe titled A Man in Full. I first picked up this book because of its setting in Atlanta. But I read to the end for its introduction to stoicism. And when I finished the novel, I wanted to know more.

So, what is stoicism? As much as I implore my students to stay away from wikipedia in their assignments, the entry on stoicism is a good starting point:

Stoicism is predominately a philosophy of personal ethics which is informed by its system of logic and its views on the natural world. According to its teachings, as social beings, the path to happiness for humans is found in accepting that which we have been given in life, by not allowing ourselves to be controlled by our desire for pleasure or our fear of pain, by using our minds to understand the world around us and to do our part in nature’s plan, and by working together and treating others in a fair and just manner.

Students of Buddhism or devotees to Christianity might see some commonalities here. For Buddhists, suffering comes from uncontrolled desires or the inability to see and accept the reality of change arounds us. From the Judeo-Christian context, sin lies in placing idols before God, which are worshipped as if God. These things ultimately fall short on providing happiness. St. Augustine wrote “our heart is restless until it finds rest in you.”

For stoics, the natural world operates in a logical system. And our minds should work within that plan. However, we can get caught up in our own dramas of desire for pleasure or fear of pain. All of which disturbs our sense of tranquility.

I am aware that I have grossly oversimplified the philosophy and may be committing an error by trying to describe stoicism as a unified philosophy. And perhaps you are thinking, “who cares?” Let me try to bring this to the level of the relevant by describing a few stoic exercises.

Stoicism is infinitely practical. Holliday writes, “stoic writing is much closer Yoga session or a pre-game warm up than to a book of philosophy a university professor might write. It’s preparation for the philosophic life – an action – where the right state of mind is the most critical part.”

Stoic Practices

  • Is This What I So Feared? Seneca advised his students to simulate misfortune or to live out, if only for a brief time, what they fear most. He advised spending a period of time in practiced poverty, wearing course clothes are the sparest of food. He notes that the reaction to practicing poverty or to simulating misfortune is that you will find that it wasn’t the big deal you imagined it to be. In simulating what might happen if you failed at something, which is likely more transitory and more reversible than you might imagine, you free yourself up to act on bigger thoughts with higher risks.
  • Training Perception to Avoid Good or Bad. Again, from Holliday:

There is no good or bad to the practicing Stoic. There is only perception. You control perception. You can choose to extrapolate past your first impression (‘X happened.’ –> ‘X happened and now my life is over.’). If you tie your first response to dispassion, you’ll find that everything is simply an opportunity.

Want to see suffering in action? Open up your Facebook feed and look at the posts you find there — nothing but vitriolic emotional reaction from objective reality, whether it be some interpersonal issue, an event in sports, or an event from the news. You can train yourself to view things as they are then to take the opportunity that the event creates.

Application to Law

The law is richly rewarding to attorneys. However, neither judges, clients, nor opposing counsel hand out lollipops to us on a daily basis. And I commend a study of stoic philosophy to lawyers. Open up the bar journal and look at last month’s list of lawyers who were disciplines. Many of them acted to avoid something that would have been far easier to handle than the consequence of the choice they made. What if they had regularly engaged in the practice of what they feared the most? And the number of lawyers who suffer mental health issues or substance abuse? What if we trained ourselves to look first at objective reality to see what opportunity is presented?

I’ll close by saying that I’m no stoic. But I enjoy reading about stoic teachings. And I have extrapolated from it some practices that are helping me.

Trump Administrative Order on Travel Likely to Withstand Legal Challenge

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Adam Liptak has a comprehensive article in today’s New York Times over nationwide appellate proceedings regarding President Trump’s Executive Order banning travel from several Middle Eastern nations. The article tracks the progress of an order from the United States District Court for the Western District of Washington staying enforcement of much of the Executive Order. The administration has appealed and that case is moving forward on an accelerated briefing schedule in the Ninth Circuit. On the East Coast, the United States District Court for the District of Massachusetts has refused to grant a stay of the Executive Order’s enforcement, reasoning that the immigrants are not likely to prevail on the merits.

The issue in the case is how to draw the line between executive power under Article II versus the First Amendment’s protection against the establishment of a religion. Article II vests in the president wide latitude in conducting foreign affairs and in regulating immigration into the country.

Issues to Consider

  • To what extent may we look beyond the text of the executive order? The text mentions nothing about banning immigrants on the basis of religion. Here’s the relevant text:

In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

  • The President has made some statements about a potential preference for Christians seeking to enter the United States to escape persecution. But I am unclear on the extent to which the courts are allowed to look to such statements versus the language of the order.
  • Even if the restriction is wholly or partially based in religion, is there a First-Amendment violation? May religion be a factor in immigration decisions? It’s a murkier question than it might appear on its face. May the government weigh a person’s religion as a factor in determining the extent to which the person poses a threat to safety? The question would turn on whether doing so “establishes” a religion. For instance, let’s imagine a hypothetical religion. Suppose there was a sect of people who believed that the true God countenanced no secular leaders and that it was the sacred duty of a follower of that religion to overthrow any secular governmental figures. In other words, the central religious tenets of our hypothetical religion included a duty to war against the idea of government. Would it be a violation of the First Amendment to bar adherents to that religion from entering the country? The answer would appear to be no.

If I were to place a bet on the outcome of this litigation, I would bet on the administration. Beyond the Constitution, Congress has vested the President with broad power over immigration. Adam Liptak writes:

A key part of immigration law does give the president broad power. It says, “Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

But another part of the law forbids discrimination “because of the person’s race, sex, nationality, place of birth or place of residence,” but only “in the issuance of an immigrant visa.” The Trump administration argues that the power to bar entry, the subject of the first law, is broader than the limits on issuing visas.

I make no editorial comment upon the wisdom of the president’s immigration decisions. Rather, in terms of the law, he likely stands on a solid footing with respect to current legal challenges to the Order.

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