Category Archives: Cross

Category for crosses, to make them easier to separate out from other posts.

Cross: Josh Blackman, A Fearless Constitutional Contrarian

January 18, 2017 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross prolific blogger and South Texas College of Law associate professor Joshua M. Blackman.

Q. You went to college at Penn State, where you studied information sciences and technology, not exactly the routine precursor to a career in the law. What were you into then? Was the plan to be on the cutting edge of tech, or something less remunerative? You were apparently pretty good at it, graduating magna cum laude in December, 2005, and yet you chose to go to George Mason Law. What went wrong? Was there something that pushed you away from a lucrative career? Was law always in the plan? Did you get in trouble and get punished by being forced to attend law school?

A. For as long as I can remember, I was surrounded by computers. Both my parents were in the business, and I was always exposed to technology. During my sophomore year in high school (1999), I took notes on my Palm Pilot IIIe. By my junior year, I brought a HP Jornada 820 laptop to class. Penn State’s then-new major of Information, Sciences, and Technology seemed like a good fit for my interests and skillset. In hindsight, I am very grateful for the education I received.

In recognition of my work on network security, the Department of Defense awarded me a two-year full scholarship-for-service: they would pay my tuition for two years, and in exchange I promised to work for the DOD after I graduated for two years. It was a sweet deal. Following my junior year, I interned at the Defense Information Systems Agency in Arlington, Virginia, and was assigned there permanently once I graduated.

For reasons I still don’t completely understand, I decided to take the LSAT during my final semester at Penn State. I had only taken one law-related class, which focused on cyberlaw, and knew next to nothing about what law school entailed. My preparation was minimal—I took a few sample tests over the course of a few weeks. I frankly wasn’t too concerned with my score because my plan was to apply early decision to George Mason as an evening student, and nowhere else. By that point, I would have established in-state residency, so my tuition would be a fraction of the cost of other D.C. schools. Also, my office was a 10-minute drive to Arlington’s campus.

I had some vague notion that my technical background would prepare me for a career in intellectual property, but didn’t know much more than that. I distinctly remember GMU’s brochures which basically promised me a starting salary of $160,000 a year, so it seemed lucrative enough. (Those were the heady days, huh?) I had no idea what I was getting myself into—I didn’t even know what 1L meant.

Q. After graduating Penn State, you went to work at the Department of Defense doing computer stuff while attending law school. Was there some connection between your working for the government and your views toward law? Did this shape your perspective? What about your analytical background in computers? Did that relate to your view of law? You continued to work for DoD throughout law school, moving from computers to the general counsel’s office. Did you want to work as a government lawyer? Where there other areas of law that interested you? Was your work with the DoD a matter of paying for law school or did that reflect your area of legal interest? How did you find the time to be articles editor on law review with all that going on?

A. During my first year of law school, I continued to work 40 hours a week as a computer scientist with the DOD, focusing on network security. My initial goal was to rush through law school as an evening student in 3.5 years. However, after a few weeks, I realized I absolutely loved law school! My passion was no longer for coding. After my first year, I switched to the full-time program.

To my good fortune, my supervisor at work recognized my shifting interests, and allowed me to transfer to the agency’s general counsel office, where I focused mostly on labor issues. We were able to work out a deal where I would work 25 to 30 hours per week, but with staggered shifts, that would allow me to go to class during the day. During the week, I would go to work in the morning for a few hours, go to a class, go back to work, then back to class for evening sessions. (By the way, this is where my custom of always wearing a suit to class began—I literally had to because I was schlepping back and forth to work).

As your readers may know, the ABA has a paternalistic rule that limits students to 20 hours of work during the week. It is utterly insane for the accreditors to tell students how much they can work to support themselves, without any reference to an individual student’s aptitude. I violated the rule, and am damn proud of it.

This schedule, combined with law review duties was brutal, but I loved it. Also, as a glutton for punishment, I took 18 credits every semester, including every constitutional law class GMU had to offer. Even though I started off as an evening student, with a credit deficit, I still graduated magna cum laude with 6 or 7 credits more than I needed to graduate. All the while, I continued working at the DOD until August 2009, when I began my clerkship for Judge Gibson in the Western District of Pennsylvania.

Q.  Following law school, which you graduated in 2009, again magna cum laude, you clerked for two judges, first Judge Kim R. Gibson in the Western District of Pennsylvania, and then Judge Danny Boggs at the Sixth Circuit. Judge Boggs is famous for giving his clerkship applicants an arcane general knowledge quiz. You apparently passed, but neglected to go on TV’s “Who Wants To Be A Millionaire?” What was it like clerking? Was there a reason why you sought to clerk with Judges Gibson and Boggs? How did that experience shape your view of the law? Did you share their philosophy toward law? Politics? Did the experience make you want to try your hand in the well or at the lectern?

A. By the summer before my third year in law school, I became obsessed with the idea of clerking. I am not exactly sure why I wanted to do it (a close friend did it and seemed to enjoy it) but my burgeoning interest in the federal judiciary had taken a hold of me. To accomplish this goal, I did something absolutely insane: I applied to every single district and circuit judge in the country. (I discuss the details in this essay I wrote shortly before I started teaching).

That year, I received a single circuit court interview (he happens to be on Mr. Trump’s short list), but did not get the position. I also received several district court interviews, but none felt as good of a fit as Judge Kim R. Gibson. Judge Gibson was a West Point graduate, and a former state-court judge from Somerset, PA. He made his name by handling the legal aftermath of Flight 93, which crashed in his jurisdiction. We had such a good rapport during the interview, I knew I would be at home. Above all, he was always kind to me, and supported my insane endeavors with a smile. Most importantly, the clerkship allowed me to sit in court nearly every day of the week.

Though my practice experience is nil (Scott will never let me forget this), in my two years clerking, I received a crash course in all manner of civil and criminal litigation. We had a higher-than-average number of trials (several diversity jurisdiction tractor trailer accidents on the Pennsylvania turnpike) as well as some bizarre criminal cases involving Pennsylvania “militia men” (all acquitted!).

As a geographic matter, however, the clerkship was not so great. Johnstown, Pennsylvania is remote—about 2 hours from Pittsburgh and 4 hours from Washington, D.C. In hindsight, the isolation was a blessing, as it gave me so much time to write. During my two years in Johnstown, I published nearly ten law review articles, started my blog, launched FantasySCOTUS, and began building my platform. I don’t know if I could have done all of that had I lived in a more interesting place.

As for Judge Boggs, I actually applied to him three times. First, as a 3L, I applied and received the quiz, but did not make the cut. I applied again during my first year with Judge Gibson. Much to my disappointment, I was his fourth choice, and there were only three slots available. He had recently concluded his Chief Judge service (a year early!), so he had one fewer space. After candidate #3 accepted, Judge Boggs told me to apply, yet again, the following term.

During my second year clerking with Judge Gibson, I applied, and probably out of pity, I got the coveted Sixth Circuit clerkship. Judge Boggs is a polymath and a renaissance man. I don’t say that lightly. He knows everything about everything. It is humbling to work for him, and I learned so much about the law, as well as countless other topics that he would muse about. We still keep in close contact. I am beyond grateful that my first two employers after law school were such remarkable jurists.

Q. While you clerked for Judge Gibson, you taught a federal courts seminar at Penn State. Was that it? Were you hooked on academia? Following your time with Judge Boggs, you entered the AALS meat market for a tenure track position. Was there an attempt to go for a Supreme Court clerkship? How did that turn out? Did you consider practicing law instead of teaching? What if you hadn’t gotten a position, was there a plan B? Do you ever wonder, looking back now from the Ivory Tower, whether you chose the wrong path?

A. Shortly after the clerkship began, Judge Gibson mentioned that he was asked to teach a federal courts seminar at the Penn State law school (his alma mater). I had mentioned during my interview that I had an interest in teaching. He asked if I would help him teach the class with him. I was elated! Working closely together, we put together a syllabus, and (thankfully) about a dozen students decided to enroll in the new class. Over the course of the spring 2010 semester, every week Judge and I would drive to University Park (about 2 hours away), and teach a 2.5 hour class on all facets of litigating in federal courts.

The lectures were usually divided in half. I would discuss the theoretical aspects of the law, and go over the relevant cases. Then Judge Gibson would explain how it works “in practice.” To answer your questions, I was hooked. I couldn’t believe how much I enjoyed teaching. We taught the class again in the Spring of 2011. By that point, I decided that I wanted to apply to become a fulltime law professor.

I submitted my materials to the AALS “meat market” in the summer of 2011, shortly before I began my clerkship with Judge Boggs. To be frank, I didn’t have a Plan B. I had an offer waiting from the law firm I summered at, but I had no interest in going back. One experience crystalized that reaction—I wrote a memo for a partner on some government contract issue, and raised a due process issue. The partner criticized the memo, saying he didn’t care about the Constitution. Technically, the offer is still standing, but I suspect they forgot about me. I didn’t, and still haven’t, applied for a Supreme Court clerkship. It was academia or bust. In hindsight, I have no doubt I made the right decision.

Q. You ended up teaching in Houston at South Texas College of Law, first in Property Law and then shifting into Constitutional Law. How did an East Coast kid end up in the Republic of Texas? You had the misfortune of coming out of law school at a dark time for new lawyers, something that was also reflected in legal academia. Was there much opportunity for new lawprofs? What were the options available for teaching law? Not to be unkind, but South Texas isn’t Harvard. Is there any hope to climb up the food chain? What does a young lawprof do to establish his scholarly cred?

A. The “meat market” process at the AALS was brutal. At the time, I had a dozen publications, and several more in the works. To my surprise, I received about two-dozen interviews at the market, including several at Tier I schools. Though, for reasons I still don’t completely understand (you can speculate), I was only invited for “call back” interviews at two schools: Ave Maria and South Texas.

I had never been to Texas before the interview (other than a layover), but my visit was spectacular. The faculty and staff quickly made me feel at home, and offered me a place to develop as a scholar and teacher. Shortly after the interview, South Texas made me an offer, which I gladly accepted. Originally, I was hired to teach property only, but in my second year, a constitutional law professor took emeritus status. That opened up a spot for me. I am grateful to the administration for allowing me to slot into this coveted courseload.

I’ve now been teaching at South Texas for five years, and am really lucky for the focus the school places on teaching. For purposes of tenure, teaching is more important than scholarship. At most other schools, that presumption is reversed. Working with senior colleagues, I have tried to continuously improve my teaching. No matter how much I write, the biggest impact I’ll have is on the 150 students I teach every week. No one else has to read my work, but those students are required to sit and listen to me talk for two hours straight. This, and not in print, is where I will make my biggest mark as a scholar.

Q. You are, to say the least, a prolific writer, and have been since law school. At present, you have more than 10,000 blog posts, 34 law review articles and two books, Unprecedented: The Constitutional Challenge to Obamacare and Unraveled: Obamacare, Religious Liberty, and Executive Power. What drives you to write? One of the primary critiques of academics is that they may write scholarly articles, but no one reads them. Has that been your experience? Do you think your work has had an impact in the real world? Has it been worth it, or do you wonder if you murdered all those words for nothing? Which of your efforts has had the greatest impact, for you and for the law?

A. I love writing. I consider it a hobby. Whenever I have a free moment, my fingers are drawn to the keyboard, as I think about how to phrase my ideas in the most appealing manner. The process is truly iterative. My ideas often start as tweets, evolve into blog posts, and before I know it, I have enough content for a law review article. Indeed, my books are (in large part) collections of my prior writings. I hope to continue writing for as long as I can. I have more topics that I wish to write about than there are hours in the day.

This may surprise my readers, but I don’t write for them. Truly. I write for myself. Whether anyone reads my material is secondary to my personal intellectual pursuit of putting words to (digital) paper. Even though all of my writings are publicly available, and I encourage (urge) people to read my material, I write because it satisfies my own curiosity. Writing about something helps me think through issues.

My writings have impacted the real world. Federal judged have cited my scholarship in consequential opinions affecting constitutional law. I’ve written several amicus briefs—though not cited (yet), their ideas were adopted by majority opinions. Reporters have quoted me in media to explain complicated legal issues to millions of Americans. Beyond the law students in my classrooms, tens of thousands of law students around the world watch my lectures on YouTube. I can relate that Unprecedented sits on the bookshelves of several Supreme Court chambers, and one Justice discussed it during conference.

Q. Early on, you staked out a libertarian position on law and politics, and it’s been reflected in your writings and opinions. Where did this come from? Prawfs Ilya Somin and Randy Barnett, Volokh Conspirators both, were offered as your academic references. Did they influence you? Did you consider what impact your views would have in an extremely progressive academic climate? Did your views have any negative impact on you as an academic?

For a young law professor, you’ve never been shy about stating your views. More importantly, you’ve never been shy about having views that differ from the prevailing views amongst your fellow academics. You have not yet gotten tenure, though you were promoted from assistant to associate prof in 2015. Are you at all concerned that expressing more conservative or libertarian views would cause problems? Does it concern you that there are so many academics who have the protection of tenure who remain concerned about voicing views outside the progressive academic mainstream? To what do you attribute that?

A. As a law student, I am very grateful to have had the opportunity to take classes with so many prominent libertarian professors, including Ilya Somin, David Bernstein, and others on the GMU faculty. Additionally, I took full advantage of the D.C. scene, and became friends with Randy Barnett at Georgetown, Ilya Shapiro at Cato, the lawyers at the Institute for Justice, and many others. They were all instrumental in my intellectual development, and helped shape my views on the law and the Constitution. With their guidance, by the time I graduated, I had already authored seminar papers (which would become law review articles) on the Second Amendment, eminent domain, information privacy, the Establishment Clause, and national security.

This strong publication record, perversely, complicated my entry to the academic market. It singled me out as a constitutional law scholar—and even worse, a libertarian one! Virtually every single one of my mentors told me not to go onto the market as a libertarian constitutional law professor: without a Harvard or Yale JD, or a Supreme Court clerkship, as a Caucasian male, I had no chance. Randy Barnett urged me over dinner to consider becoming an IP scholar (in light of my technical background), as the private law field is less prone to ideological bias. Others suggested I should not write about anything controversial, and lay low until I got tenure—then I could come out of the intellectual closet to show everyone my true colors. And they all insisted that blogging was a bad idea, and I should not create a record of informal writings that could be used by opposing faculty to spike my candidacy.

Through a combination of arrogance and naiveté, I ignored all of their advice, and went on the market as a constitutional law professor. I could not hide from my already-public record at that point, nor would I want to be a scholar on topics that don’t interest me—I don’t think I’d be nearly as productive. Fortunately, I had written an article on Pierson v. Post, so I could credibly list property as an alternate class. That single paper helped get me the interview at South Texas, and the rest is history.

As for being outside of the mainstream, it really has never bothered me. Many professors—even with tenure—have a natural aversion to being criticized. Playing it safe means your work won’t be criticized. Thankfully, since I was young, peer pressure has never worked on me. As I noted above, I frankly don’t care what others think of me, or what I write. I do it for my own worth. If others find value in it, great! But that’s not why I do it. Even without tenure (which I will be eligible for in the Spring of 2018), I take seriously the importance of academic freedom, and put all of my efforts into critical thinking—regardless of how far out of the mainstream I am. Since I began teaching, I have been very fortunate to have the support of the Dean and the faculty in all of my endeavors, and never once felt like the content of my writings was held against me.

Q. While there has been no shortage of scholarly Blackman writings, your blog has also proven to be very influential, as well as informative. But unlike law reviews, it’s pretty readable for the practicing lawyer, and even the non-lawyer. Bryan Garner has waged war against lawyer-speak, which remains the mainstay of most academic writing, but you’ve been remarkably plain-spoken and comprehensible on the blog.

Where have you gone wrong? Do you take issue with dense and prolix writing? Are you deliberately trying to be clear where others are more circumspect? You wrote a particularly funny post about the meaning of the word “interesting” in academic jargon. Is this a message that you will say what you mean and not moderate your writing to the point of incomprehensibility? Does it make your head hurt when other academics refuse to say what they mean?

A. Like my decision to go on the hiring market as a libertarian constitutional law professor, my decision to start the blog in September 2009 was driven by a mix of arrogance and naiveté (sensing a pattern?). After I narrowly missed out on the clerkship with Judge Boggs, a close friend urged me to start a blog. He said it would give me an outlet to write and build a reputation while I was stuck in Johnstown. I do not recall ever asking for permission from Judge Gibson before I began—I think I told him after I launched it. I still can’t believe he let me blog—he never objected to any of my posts so long as I stayed away from politics and anything concerning the Western District of Pennsylvania. Although he did make me take down my video of “Hitler reacts to Citizens United. (He didn’t get the meme).

Launching that blog was one of the better decisions I’ve ever made. Thanks to several early links from the Volokh Conspiracy, Instapundit, Althouse, and a few others, many people began reading my blog, beyond those I could reach on my Facebook or my nascent Twitter account. JoshBlackman.com has allowed me to develop a special bond with more people than I’ll ever know. In a little more than eight years, I have published nearly 10,000 posts on more topics than I can even remember, and reached millions of readers around the globe. Remarkably, some of my original readers still follow the blog, and regularly email me about posts. Occasionally, when I meet people, they will say “I’ve been reading your blog since you were in Pennsylvania!” It’s surreal.

My writing style on the blog, and everywhere else, is geared towards a college educated person with an interest in the law. Occasionally, I’ll have a technical post, that gets into the weeds of legal doctrine, but for the most part my prose is designed for a broad audience. Writing in this fashion, so often, and so quickly, has helped me become an even better academic writer, as well as a brief writer. I continuously work on my prose, sometimes agonizing over an opening sentence for an hour (it is really the most important). I hope all of my colleagues take Bryan Garner’s advice to heart—we can reach so many more people if our material is understandable.

Q. An issue that we’ve talked about in the past, but has returned (did it ever go away?) with a vengeance is academics using their cachet as scholars to promote their political agendas without regard to any “search for the truth.” Indeed, it’s quite the opposite, that some are deliberately promoting false understanding of law to serve a goal for which a faithful representation of law presents a problem.

How big an issue is this in the academy? Do prawfs recognize it but not care? Is there any movement within law schools to call out those academics who abuse their credentials for their cause? Are there liberal prawfs who are disturbed by this happening? Are they willing to speak out, to admonish their colleagues not to take advantage of their scholarly credibility to achieve a political goal? If not, what’s become of intellectual honesty in academia?

A. Professors hold a very special place of trust with the public. When we write something, it has a different significance than when a non-professor writes the exact same thing. Unlike attorneys who represent clients (and thus have a vested interest), and even think-tankers (who are often nudged in a certain direction), professors are given academic freedom to pursue the truth wherever it goes. If we forsake that trust, our words become worthless.

I recently wrote critically of a letter signed by 1,400 law professors opposing the confirmation of Senator Jeff Sessions as Attorney General. As a threshold matter, the letter had no meaningful legal analysis—it recited hackneyed talking points, which were of contestable veracity. Further, of the 1,400 professors who signed it, maybe a couple were actually involved in writing it. Would any professor put their name on a law review article they did not write? More specifically, one of the claims in the letter referenced Senator Sessions’ record over the past three decades. Did any of them review his entire record over this period. Of course not! (I doubt any Senate staffers did either). How they could put their signature to this letter boggles my mind. I will use all of my efforts to explain to professors why putting their names on these letters, to which they did not contribute, exploits their credibility.

In any event, NBC News and the Washington Post wrote favorable stories about the letter. I wrote a letter to the editor of the Post (which was not published), questioning why this non-legal analysis was in the least newsworthy. (It wasn’t).  Ultimately, the letter served its purpose. Senator Feinstein of California, the ranking member of the judiciary committee, referenced the letter during her opening statement, as if it would give a single Senator a reason to oppose Sessions. (It didn’t).

Q. As a still-young professor, you’ve got a lot ahead of you, despite having published more than most by the time of retirement. Where do you go from here? Is the goal to end up with the New England elite? While you’ve done numerous amicus briefs, what about real litigation, whether in the trenches or on appeal? Or given that lawprofs have found their way to the Supreme Court (where your Fantasy SCOTUS has had more than its share of success predicting outcomes), what about being on the bench someday? Is there anything you aspire to do other than teach and write?

A. I try not to think too far ahead, because my predictions are almost always wrong. As for litigation, I would like to become more of a lawyer. Largely on Scott’s warnings, I’d be afraid of serving as a grunt in the trenches, as I would likely make some inadvertent procedural error that screws over my client. My on-the-fly command of the rules of evidence and procedure are not up to par. My skills are better suited for appellate arguments, and hopefully even before the Supreme Court one day. The right case will come along sooner or later. Even short of litigation, I regularly advise state and federal law makers on a whole range of policy matters. The best way to stop bad laws is to never enact them in the first place—or repeal them as soon as possible.

Article III is the ultimate brass ring. The likely reaction to that prospect is that my paper trail (the blog, the articles, the tweets, etc.) makes me unconfirmable.  As I’ve written elsewhere, I think this preference for people who played it safe gets the nomination process exactly backwards. We should insist on jurists who have written at length about their judicial philosophy on different issues—and done so in a position where they could be criticized.

A proven record, intellectual honesty, and a backbone, are indispensable attributes of a federal judge. The nomination shouldn’t be left to chance. Ironically, thanks to Harry Reid and the nuclear option, Presidents can now become more ambitious with their nominees. (I think we will see the fallout of Reid’s decision with the new administration). If a person like me, who has written on all manner of the law with honesty and directness, can be considered for a judicial appointment, then I would be much more confident in the direction of the federal courts. Until then, SCOTUS will remain a fantasy.

Cross: Tim Young, Leading Ohio’s Public Defenders

January 11, 2017 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross the State of Ohio’s Public Defender, Tim Young.

Q. You were an Air Force kid, born at Hill AFB in Utah and, like many military brats, shunted around much of the globe while growing up. You graduated high school at Ramstein AFB in Germany, just forty miles from Trump’s ancestral homeland. Do you speak any exotic languages? Did growing up abroad leave you with an exotic outlook on American criminal law? Did you long for home, or was the adventurous lifestyle the right one for you? And why’d you repatriate?

A. As a kid I didn’t know anything different. Moving from place to place is what my family did. After a year and a half or two years, there was this expectation that it was time to move on. People often ask, “how could you move all the time?” I respond with the question of “how could you stay in one place so long?” People are amazingly adaptable.

As a kid, I was adapted to moving – often. And it was great. I lived in so many places; outside of DC, in New Mexico, in Wisconsin, overseas, and so many more. My mom was a teacher. New places were an educational opportunity in her mind. We were the family that stopped at all of the historic markers and vista overlooks along the highways. When we got to a new city or sometimes, a new country, she had lists of places we needed to see and things we needed to do.

Don’t misunderstand, I did not come to appreciate any of this until later in life. I was the typical kid griping in the back seat of the car and asking how much longer till we got there. But I was also being exposed to cultures and people from all over the country. I lived in states all across this country and that was my real education – school was the same everywhere – but the people and cultures were so different.

That is what living abroad did for me, it gave me a perspective on my home from afar. When we moved to Germany, we did not live on the base but instead lived in a small village, one of only two American families in the village. Later I would understand this as my mother taking advantage of another educational opportunity. Again, this is my perspective now. At the time I was a 17-year-old kid living in Germany, a place I could legally drink. Enough said.

Q. You attended the University of Dayton in Ohio for undergrad, then stayed on for your law degree. Why Ohio? Going in, was the plan to become a lawyer? Or did someone entice you into the profession with promises of riches and glory? And what attracted you to crim law? You clearly gave your classmates the impression it was the perfect gig for you; they voted you “most likely to become a criminal defense lawyer.” Did you embrace the label or refuse to be pigeonholed?

A. I returned to Ohio to attend school. My father and stepfather both served full careers in the Air Force. There was no “home” to return to when I graduated high school in Germany. My father had retired from the Air Force and had started his second career at the University of Dayton. They had a tuition-free policy for kids of employees. That made the college choice pretty easy. There was no grand plan. Just get a degree.

Grad school was always an option. I was probably a junior in college when I really started to consider law school seriously. At that point, I was a philosophy major so grad school had become a concrete plan. As much as I enjoyed philosophy and defended it as my choice of major, even I knew it should just be renamed “the going to grad school major.”

As I entered law school, I knew I wanted to be a litigator but nothing much more specific than that. As I took classes, I was largely defining areas I never wanted to practice. After contracts, I realized I was never going to do anything with the UCC. And tax law was an easy no. I really enjoyed environmental law, but upon graduation the only interview I got remotely related to environmental law was with Ashland Oil Company. Given I became a public defender, I don’t imagine it is hard to see what a bad fit that would have been, defending an oil company. I would have lost my license.

But by the end of third year, my classmates knew what I was supposed to do, voting me most likely to be a criminal defense attorney. In a classically predictable way for a future public defender, I had to be contrary, and it took me two more years before I accepted what others knew about me.

Q. After you graduated in ‘92, you signed on as an associate with Ruppert, Bronson, Chicarelli, & Smith in Franklin, Ohio, where you primarily handled civil cases. What could’ve induced you to give away your criminal-justice birthright? Did they promise you a spectacular mess of potage? Were you at all doubtful about a career in criminal defense, given that it can be a poorly paid, stressful and low-status job?

You spent two years at RBC&S, during which time you also handled the odd criminal case. That takes us to the obligatory first trial question. What was the case about? Who’d you go up against? Going in, did you believe you were adequately prepared? Were you right?

A. I started with RBC&S because I had clerked for them and they were a really great small firm doing plaintiff’s work. And, like many people, I was blind to what I should have seen much earlier. I was still narrowing down my plans for what kind of lawyer I was going to become. It was a general practice firm ranging in practice areas from family law, wills and estates, medical malpractice to criminal defense. But most importantly, they were really great people. I had friends who despised the firms and people where they worked. I had a huge benefit in that after two years of work, I really liked the people I worked with. I just hated most of the work. Bless the lawyers who handle divorce cases, but I wanted to go back to bartending before I took another family law case.

But before I got to the moment that I was going to become a client if I had to do another divorce case, I had also done two years of appointment work in public defense cases. One of the things about Ohio is that not all counties have public defender offices. RBC&S was in one of those counties. All public defense cases were handled by appointed counsel and the firm had committed to having all of the lawyers on those lists. But the reality of firm practice is that the partners, while on the list, rarely handled the cases when appointed. They gave them to the lowest associate – me.

And that was my first jury trial. It was an appointed case. I had been a lawyer for just about a year and I was about to handle a felony jury trial. The case involved a guy charged with burglary. He and his ex-girlfriend had children together and he was probably not getting over her as much as he should have. She, however, was over him and had moved on.

One morning, the kids call him and tell him that they are hungry and mom is not there. He goes and finds her at her new boyfriend’s apartment and barges in demanding she get up and get home to take care of the kids. He won’t leave until she gets up and comes outside to go home. The cops are called and, miracle of miracles, actually refuse to arrest to him. I remember getting the case file with the police report and thinking this is a mistake – I’ll call the prosecutor and get this cleared up – plea to a trespass (a low level misdemeanor in Ohio). But the prosecutor had already indicted for burglary and refused to budge. Ohio has one of those statutes where trespassing in an occupied dwelling is a burglary without anything more. No other act is required, just trespass in a house. My client was technically guilty, but the case seemed so damn wrong.

I was woefully unprepared. There was really little investigation to be done. The police reports and witness statements were clear. There was little dispute about what happened; versions differed a little and blame was allocated differently in each version, but the three versions all matched up at the important points. The unpreparedness was simply my inexperience. I had never tried a case. I did not know crap about proper cross. My objections were tentative and hesitant. But there were two good things in the client’s favor. Most people reacted like I did when asked about the charges, that this seemed wrong. And I had a judge who was going to give the trespass charge as a lesser included offense.

I stumbled and stammered through the day. The jury went out. I had always heard that quick verdicts are bad for defendants. The jury was back in 20 minutes. Not guilty of burglary, guilty of trespass. We would have pled to that months before, and the client was released with time served. I had tried my first criminal case.

Q. You resigned your gig in Franklin in ’94 to join the Montgomery County Public Defender’s Office, headquartered in Dayton. Here at Fault Lines, we’ve interviewed former PDs who were desperate to leave the profession and move on to things as unlikely as comedy, citing overwork, the lack of money and the misery of representing unappreciative defendants in the trenches as reasons to leave the life behind. Others, however, seem drawn to it.

What made you want to swim upstream? Why’d you trade it in for one of the most demanding and responsible jobs a lawyer can do? And when you arrived at the PD’s office, how difficult was it for someone used to private practice to adjust? Did you find you had fewer resources at your disposal? Was there less leeway to choose how best to represent your clients? Conversely, did the PD’s office come with a bigger storehouse of knowledge to draw upon? Were you mentored, or thrown in the deep end and left to swim?

A. I came to the realization of what I wanted to do while on a long drive home after taking my younger brother to college. Between my own appointed cases and those I handled for partners at RBC&S, about a third of my work was appointed counsel work. And those were the cases I enjoyed. As corny as it sounds, I got into law to help people. And despite my Con Law professor’s best efforts at beating the majesty of the bill of rights out of me, I was (and still am) completely awestruck by the founders and their foresight to create these fundamental rights. Today, a big sign hangs outside of my office, it is a quote from John Adams: “it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished…”

I had come to loathe much of my other work and it showed in the quality of work I was doing. And with this clarity, I resigned the day I returned from the trip with my brother and applied to the public defender office in Dayton, Ohio. I did not have a job with the public defender office yet, but I knew that was what I was meant to do.

I was hired a couple of weeks later and was doing what I loved. But I was drowning. The caseloads were and remain far too high. At first, trying to juggle 15 files for a morning call in a misdemeanor court was almost too much. Learning to focus on what was in front of me was really hard when I had so many other cases that needed something done. And the knowledge gap was huge — what was a lesser of what, when did the government have to prove a gun was operable, what are the elements of every criminal charge in the code? I was drowning.

But six months later, most of that was second-hand knowledge. Every day there had been another PD I could go to and ask another annoying question. Every day I could copy someone’s organizational system for juggling so many cases. And for the first time since I became a lawyer I could focus on the people in front of me and help them.

Q. By 1994, violent and property crime rates in Ohio were already falling from their peak in ’90. But had anyone noticed? The nation was in the grip of panic about crime, fed by “superpredator” rhetoric, kneejerk federal and state legislation and the impulse to ramp up the drug war to deal with the crack cocaine epidemic.

What was it like for Ohio public defenders in the mid-‘90s? Were you insulated from the madness, or was Montgomery County as hard-hit as any other? Was funding remotely adequate? Were enough public defenders being hired to deal with the influx of indigent clients? Was the kind of grotesquely excessive caseload PDs across the country are expected to shoulder today common back then? And what were your bosses at the Montgomery County PD doing in response?

A. Montgomery County PD remains a place of which I have very fond memories. It was where I became a trial lawyer and then a manager and office leader. But Montgomery County was like everywhere else. Caseloads exploded. There were 100,000 new police on the streets across the country, we doubled down on the failed war on drugs, and tough on crime was and is the hue and cry of too many policy makers.

But Montgomery County was far better prepared to deal with some of it. Years before caseloads exploded, a jurist, Carl Kessler, had the amazing capacity to bring unlikely groups together, and he essentially overhauled the county justice system and put in place a systemwide case management plan. This plan includes open discovery available upon indictment, a very coordinated scheduling of dockets, and active participation from all the players in the case.

The court also instituted a mentoring system for new judges, and this helped bring a consistency to sentencing within the court with variations being far less than seen elsewhere throughout the state. Having these kinds of systems in place helped absorb some of the extensive caseload growth. But at some point, the money stops keeping up. The caseloads creep up, the budget lines for experts remain flat even though there are more cases, the amount of money dedicated to training declines. Budgets continued to increase but at a slower pace than caseloads. I had too many cases. We all did.

But I was never pressured to not try cases or file motions. In fact, just the opposite. I never had an expert request denied when I needed it. I also never once in the 14 years that I worked there, saw a lawyer take a verdict alone. The Montgomery County PD office had 40 lawyers and there were regular jury trials across the office. Regardless of when a jury came in, I cannot think of one time that other PD colleagues had not remained to be there with the lawyer and client when a jury returned. The dedication of my colleagues is what keeps me going every day.

Q. It didn’t take you long to make it into a leadership position. In 1997, the Supreme Court of Ohio appointed you to the state Public Defender Commission, where you and your fellow commissioners were responsible for overseeing the Office of the Ohio Public Defender – which you now run – and allocating money to PD’s offices throughout the state.

Was the lege generous enough with the money it set aside for public defense, or were Ohio’s elected officials like those in most U.S. counties and states in that they’re reluctant to fund a service that, though mandated by the Constitution, doesn’t win them a lot of love from voters? How independent was, and is, OPD’s funding? How’d you divvy up the money? And should Ohio, which has its fair share of counties without trial PD services, be doing more to expand access?

A. The undeniable reality is that public defense is woefully underfunded in Ohio. Ohio is a “home rule” state. Local delivery and control of governmental services is the model. Ohio divides its public defense funding between the state and counties. Originally, this split was to be 50/50, but the state has underfunded the appropriation to meet 50%, going as low as 25% in 2008. This places a burden on the counties, and with a larger share, the counties are even more reluctant to increase the budget dedicated to public defense.

OPD’s operating budget is drastically underfunded. From FY 2000–2015, OPD’s operating budget grew only 7.7%, or half a percentage point per year. The Consumer Price Index during this same period increased 37%. Caseloads, workloads, and the prison population have all grown dramatically. But OPD has lost nearly a third of its staff.

A decade ago, the Ohio Supreme Court created a group to examine indigent defense in Ohio. The Task Force that issued the 2006 Report and Recommendations on Pro Se & Indigent Litigants found that:

Funding dedicated to indigent criminal defense in Ohio … totals $128.8 million in fiscal year 2007. The task force believes, based on its understanding of the needs of the system, that $148.7 million is a more appropriate figure.

Despite consistent growth in the size of Ohio’s criminal justice system, the total funding dedicated to indigent defense remains below that recommended figure, ten years later.

Building a high-quality indigent defense system will cost Ohio substantially more than it currently spends on the system, but other areas of the criminal justice system will realize cost savings as a result of improved defense services. Local jail populations and costs will stabilize or decrease, as defense attorneys identify alternative placements or monitoring systems for clients awaiting trial, and as cases are processed more quickly and efficiently. Ohio’s prison system will benefit, as more sentences will be legally sound and appropriate, and as more clients are diverted to appropriate community alternatives. And Ohio’s courts will realize efficiencies and savings, as defense attorneys are more prepared to proceed with cases, better able to represent their clients, and less likely to commit constitutional errors that result in legal appeals.

A high-quality indigent defense system increases public safety by ensuring the right people are in prison, serving the right sentences. Well-trained, adequately supported defense counsel are also the most likely obstacle between an innocent Ohioan and a wrongful conviction.

Q. In 2008, you took over as state public defender after fourteen years in Montgomery County. Now that you had your hands on the tiller, what were some of the first reforms you wanted to undertake? Was the transition from lawyer in the trenches to high-profile administrator a smooth one? Had anything in your career prepared you for the responsibility of overseeing a large staff? What about the responsibility of ensuring access to quality representation for so many Ohioans? Did you ever think to yourself, “I wish I were still in the well?”

A. I don’t know of anything that prepares you for a job like this. I joked with people for the first six months: don’t tell me anything new after 2:00 p.m. as my brain was full for the day, already overloaded with all the new information I could possibly digest.

But a few things were obvious. The first was giving the juvenile section the same status as the adult divisions within the office. I believe public defense does a distinct disservice to children and the justice system when we use juvenile court as a training ground for lawyers – when we treat it as ‘kiddie court’. These are children, they deserve our best. So, when I got to OPD, my first ‘official act’ was to restructure the office so the juvenile section was not a subset of another department but instead a department of its own, on the same footing and stature as the other departments within the office.

The second major effort I knew I wanted to undertake was to try and bring the public defense system together. Being a home rule state, each county office is independent. For years in Montgomery County, both as a lawyer and as a manager, whenever I was trying to solve a problem I always thought to myself that someone in Ohio must have addressed this problem before. But there was no coordination of information flow between county PD offices. Each was an island without much contact with other PD offices across the state. And the state office, OPD, had something of an ivory tower reputation. It was viewed as insular and not necessarily as a resource for those working in public defense across Ohio.

This outreach project is continuous to this day and into the future. During my first year I started by getting in the car and driving to every county PD office in the state. I wanted to meet everyone and make sure they knew that OPD was here to help. This is a project that continues to this day. OPD has staff going somewhere across the state every day. We hold annual conferences for all of the county PDs. Our website is driven by user needs. We host a caselaw handbook, a motion bank, immigration guides, a collateral consequences database, and numerous other resources.

Finally, OPD now has a Policy and Outreach division. One of the main purposes of this division is to coordinate with and assist county PD offices and appointed counsel throughout the state. Public defenders by their nature are non-conformists. We are not joiners. We reject authority. But, we are stronger together. We can be better lawyers when we share our work, when we coordinate our efforts, and when we speak with a unified voice for our clients and for the resources we need to help them.

Q. One of your signature achievements as Ohio Public Defender was the creation of the Wrongful Convictions Project, which, since 2009, has sought to free innocent Ohioans languishing in prison for crimes they didn’t commit. Where’d the impetus come from? The project was initially funded through a donation from the Moritz College of Law, paid for by TV reporter Erin Moriarty, who’s put out a great deal of coverage of wrongful convictions. How’d you get that grant?

DoJ subsequently signed on and agreed to provide additional funding, allowing you to expand WCP and hire more people. It’s not easy to get the feds to open their purse strings for so eminently worthy a cause. How’d you do it?

Since its inception, WCP has made use of law students to review prisoners’ claims of innocence. These days, it’s trendy to complain about the flakiness and unreliability of young soon-to-be lawyers. Is that true of the kind of law student attracted to helping out the public defender?

And finally, how many prisoners has the WCP freed in its seven years of existence? Is the project high-profile enough? Does the average Ohioan know about the good work you’re doing?

A. I want to answer these questions, but I also have a distinct desire to answer a broader question about the people who do this work. So, let me try to do both and answer the question and also use it as a jumping off point.

As a public defender for 14 years in courtrooms, nothing scared me more than an innocent client. It was terrifying to think of someone locked up in a cell for something they did not do and making sure I stopped it from happening. And DNA testing had revealed how flawed so many of the other “forensic sciences” are, and the unreliability of other evidence we rely upon to convict people and take their freedom. But DNA exonerations meant there had to be hundreds and thousands of more cases that had the same faulty science or unreliable evidence. When I became state public defender, Ohio already had the Ohio Innocence Project, a DNA-based exoneration group that is doing tremendous work, headed up by Mark Godsey and housed at the University of Cincinnati.

I also had the privilege of representing two individuals who were exonerated. (State v. Aldridge) Along with three other lawyers, we represented two clients who had been convicted of molesting a group of children in an apartment complex in a twisted and sordid tale that was unbelievable on its face years later. But right after the McMartin preschool case, everyone was looking for these kinds of cases and was determined to find them, evidence be damned. It was one of those cases that you remember forever, but the highlight was the state had fought us on discovery. In Ohio, discovery is discretionary in post-conviction actions. We had won the right to an evidentiary hearing, but the state had won the discovery battle – they thought. We already had volumes of Brady violation material we had obtained through public records over the years.

So we are in the hearing and there has been no exchange of anything, not even witness lists. Somehow, we had gotten Dr. Richard Ofshe as an expert in our case. Dr. Ofshe is a nationally-known leading scholar on false memories and coerced interrogations. This leads to this classic courtroom moment when Dr. Ofshe is called to the stand, the state does not know who he is and does not even have his CV. He is asked about his qualifications and awards. As he relates that he has won the Pulitzer Prize for Public Service, the lead prosecutor leans over and whispers a bit too loudly to her subordinate, “Oh crap, you take him.” Both clients were ultimately freed and remain out today.

With that background, the Wrongful Conviction Project was a no-brainer, as was the fact we needed to expand the types of cases we looked at – to the non-DNA side of the house.

As to how we got it funded and our students, I cannot say enough about the people involved. Erin Moriarty and Moritz School of Law have been the backbone of funding. We awarded Ms. Moriarty our Defender of Justice award in recognition of her commitment to the project. DOJ started guiding more grant money towards innocence projects, and we got turned down the first time we asked. It was our second effort that was rewarded.

And the law students are the only way the project could ever be successful. Our experience has been the exact opposite of the way the question is phrased – the students we have involved in the project make it function. We could not collect the relevant case documents, review the requests, and review the files without the students. Our staff lawyer assigned to the project, Joanna Sanchez, was hired directly from Moritz as part of the project.

And this is where I want to jump off and speak a little more broadly than the question asked. Public defense is about the people. It has been fun to answer these questions, but it also makes me a little uncomfortable in that I am only as good as the people I work with. People are drawn to this work. I think there are one or two career public defenders per law school class – people who do the work because it is a calling. They come to PD offices with a shared belief system in fundamental freedoms and individual liberties. They come to help those who need it the most. They come to try and rebuild lives. That is not to say that others do not share these beliefs, there are many. But PDs feel a need to do this work.

My job, as a leader, is to make sure we hire those who have this devotion to the mission and want to be career public defenders and then do everything in my power to lobby for the tools, systems, and policy changes that will allow them to do their jobs at a very high level. So, it is about them. Yes, there is great pride in our Wrongful Conviction Project, but it is the people who make it great – our project director, Joe Bodenhamer and his team. Our Juvenile Department was recognized nationally by the National Juvenile Defender Center. It is due to the people who do the work – they are amazing.

Our Legal Department has been involved in huge victories, ultimately winning the first constitutional challenge to Adam Walsh legislation. Our Death Penalty division has been involved with more clemency success than anywhere else in the nation and Ohio is ground zero for lethal injection litigation. This is true across OPD – whatever goes well, whatever recognition I have is really and truly only because of the work being done by the lawyers, investigators, mitigators, IT staff, administrators, and all of our support staff. If I thought there was a prayer it would not be edited out, I would list each and every one of the amazing employees here at OPD because they deserve the recognition!

Q. Is Ohio doing enough to fulfill Gideon’s promise? Funding is one major problem, but funding by itself isn’t enough. Strickland v. Washington established that the accused have the right to an effective lawyer, but set the bar so low as to be satisfied by breathing and the occasional “huh?” As such, it’s possible to pay lip service to an indigent defendant’s Sixth Amendment rights by giving him, not a lawyer capable of effectively and zealously representing him, but a warm body to prop up in the courtroom.

What can the state public defender do to ensure the lawyers entrusted with the poor are not just well-funded, but appropriately trained and ethically up to snuff? For that matter, what should the lege be doing?

You’ve been a major proponent of reform in this regard, including on the national level – you even met with former AG Eric Holder to discuss the issue. Could the feds be doing more? Should they be? Are national initiatives to hold indigent defense to high standards the answer, or is this a problem that defies a uniform fix?

A. Frankly, with the exception of a handful of places in this nation, no state or local government is doing enough with regards to funding. Even with a lack of funding there are still things that can and should be done. And it is public defense leaders who must seek change. No one is going to fix this broken system for us.

As noted in the question, Strickland’s second prong essentially reduces the quality of the lawyer to a lump of flesh in many cases. We support this crazy fiction that if the evidence of guilt is overwhelming it does not really matter how badly your lawyer performed – drunk, sleeping, who cares. But isn’t the corollary also true, crappy lawyering makes the evidence look overwhelming? We have a system of review that presently values economy over fundamental fairness. Because that is what Strickland really holds, you are not entitled to a fair trial or an effective lawyer if you are ‘really’ guilty. We should do better. Think how differently the system would function if the second prong of Strickland did not exist. Everyone would be incentivized to make sure the client got a fair trial – not a perfect trial, but a fundamentally fair trial where competent counsel was involved.

As a state public defender, there are still steps towards improving the quality of the system that can be taken regardless of holdings like Strickland.

First, we have invested heavily in training. We sponsor seats at numerous CLEs around the state. We partner with the National Defender Training Project to put on a trial school every June and we fully fund 40 attendees. If I could, I would double or even triple the training budget.

Second, we have undertaken the building of a case/client management system. This system will provide one platform for public defense professionals across the state to enter data and records about the cases they handle. This will be provided free of charge to county PD offices and court appointed counsel. Ultimately, we will collect a very detailed set of data about public defense in Ohio. We will be able to make much more effective arguments about the need for reform, and we can be much more detailed about the degree and location of problems.

Third, the Ohio Public Defender Commission has recently passed a full set of comprehensive administrative code rules governing the qualifications of counsel and the necessary resources for a county public defender office or a not for profit organization.

While these will not solve the problems of inadequate funding, we will ultimately raise the bar for performance, have a much better understanding of how clients are being represented across the state, and reduce the number of cases that need resources dedicated to fixing what we should have gotten right the first time the client was represented.

Q. You ended 2016 with an amazing array of decisions out of the Ohio Supreme Court, including a declaration that mandatory bindover for kids is unconstitutional; that a term of years that exceeds life expectancy for a child is unconstitutional; and a new standard that makes police records and other governmental records available as public records upon conclusion of the trial. Not too shabby. Where do you go from here? What about the death penalty? What are the big issues you hope to slay in 2017? And what happens to Tim Young next? Is there a robe in your future? Or maybe you miss the good old days of crossing a cop and watching his eyes well up with tears?

A. As a PD, you dream about the two weeks we had at the end of term in 2016 from the Ohio Supreme Court. There were a plethora of a groundbreaking decisions released.

All 7 members of the Ohio Supreme Court agreed that a statute that limited DNA testing in death penalty cases is unconstitutional. The Ohio Supreme Court reviewed the statute and the State offered the following purpose: Ensuring that the final judgments of its courts are expeditiously enforced. The Ohio Supreme Court disagreed:

“Are we to take this to mean that expeditious enforcement of the death penalty is the guiding factor and goal? Are we to value speed over certainty? Of all cases that cry out for certainty, it is cases that result in the extinguishing of a human life. If, however, the generic expeditious enforcement is the basis of the state’s argument, even a cursory investigation reveals that this rationale is faulty. See State ex rel. Nyitray v. Indus. Comm., 2 Ohio St.3d 173, 176, 443 N.E.2d 962 (1983). Indeed, expedience is subverted by the statutory scheme.”

In State v. Moore, the court held that “pursuant to Graham, a term-of-years prison sentence that exceeds a [juvenile] defendant’s life expectancy violates the Eighth Amendment to the United States Constitution when it is imposed on a juvenile nonhomicide offender.”

In State v. Aalim, the court held that mandatory bindovers of juveniles violate the Ohio Constitution. It is difficult to describe the scope of this win and how many children’s lives will benefit from it.

Finally, the Court handed down a case that completely opened up public records requests for post-conviction litigation. Today, in Ohio, the police files become public record upon completion of the trial.

Whatever else I may have thought of 2016, it ended well – it is impossible for me to be prouder of all of the staff at OPD, what this kind of work says about each and every one of them. These decisions are the result of huge team efforts that include every department and support from every part of the agency.

As to my future, OPD just finished celebrating 40 years of service. My goal, if they will have me, is to be here when the agency turns 50 and then retire. I have my dream job. I am not looking to go anywhere. I never pictured myself in a robe. And while I desperately miss trying cases, I love my job today. I am a career public defender and I am deeply proud of that. If I can finish my career at OPD and then teach a little as an adjunct professor I will be happy, for I will have spent the vast majority of my career helping people in need, people without resources, people without a political voice, people without a home. But how we treat people is the measure of the strength of our community. How we treat those in poverty, those who have the least, that is the measure of our community.

And this is what I hope the legacy of our work is at OPD – we helped people. We helped offices improve, we helped lawyers with problems, and most importantly, we helped clients.

Cross: Justice Mark Dwyer, From Wingman To Law Man

December 21, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross former loooong-time Manhattan Appeals Bureau Chief turned Acting Supreme Court Justice, Mark Dwyer.

Q. You got into Princeton at the end of the Summer of ’68, graduated in ’72 and went straight on to Yale Law. In retrospect, those choices weren’t so bad, but what possessed you to go to these very prestigious schools at a time when counter-culture was king? Obsess about the moon landing? Party uncontrollably? Go for a tour of Vietnam? And why law school? Going in, was it your plan to make your mark as a prosecutor (and, maybe, jurist)? Or do these things just . . . happen? When you packed your bags and left for New Haven, where were you really headed?

A. The “why law school” part is the easiest. Dad was a lawyer (and judge; I inherited the Judicial Gene). My mom’s father was a Biglaw lawyer (if that can be said of any lawyer in Erie, Pennsylvania). Three of my uncles were lawyers. Two of my sisters are lawyers. Plus, it’s easier than math.

Growing up in the heartland, I always heard that the Ivy League schools taught you more. We’re talking 1968, for college admission. I assume that what I heard is much  less true now, but it seemed a goal worth shooting for. My dad had chosen Harvard Law, so he was able to understand my view.

The counter-culture was not quite my style, but it could be said to have led to my acceptance at Yale. I applied in 1972, when Yale Law School had just been rocked by a couple of years of protests in what the profs considered “The Dark Ages.” My application was still on hold over spring break, when I went north to check out another school. So I stopped in New Haven to look around there as well.  I knocked on the door of the Dean of Admissions, dressed in a blue sport coat and a button-down shirt, and had hair the same length as now.  He hemmed and hawed, and said, “we haven’t decided.” But when I got back to college about five days later, I found the “fat” envelope waiting for me.

What was my goal? I was going to be a litigator. Not one who takes depositions and settles; I would try criminal cases for somebody.

Q. At Yale, you roomed with a fellow Princeton ’72 alumnus, a kid from New Jersey by the name of Sam Alito. Were you already friends in undergrad? What was it like, living, sharing meals and facing down the horrors of law school with a future SCOTUS justice? Was it enlightening? Did you think your roomie was destined for the big bench? Did you have to teach him how to pronounce Latin correctly? And what did two young law students do in the evenings for, ahem, fun?

A. We knew each other well in college. We were both in the college debate group, ate at the same dining facility, and had many mutual friends. And we were similarly, um, “anal” enough that visitors to our suite considered it a trip to see “the two Felixes.” Sam was much more the diligent student, making no noise, and thus was an ideal roommate.  And it is no surprise that he has done so well — though it is always against the odds to get where he has.

When we discussed matters, he always thought he won the argument. I knew he was always wrong. Those who speak of “sibling rivalry” don’t understand how much more intense “law school roommate rivalry” can be. It was when I heard Sam was going to be a Supreme Court Justice that I resolved to be a Supreme Court Justice too.  Et voila!

Q. After you graduated, you spent a year clerking for Judge Platt, EDNY, and another teaching writing at NYU Law. Now, your judicial opinions are notable not just for being thorough, but for their clear language and straightforward style. Did you ever consider going the Bryan Garner route, building on that early job and committing yourself to improving the state of legal writing? How bad is it, really? Are lawyers too prone to wordiness, boilerplate, bad prose, empty conventional phrases? And what about judges, who have to deal with and produce more writing than anyone? Do you ever wish you were a prosecutor again, so the pain of reading bad motions would end?

A. My one-year NYU job happened only because I didn’t get hired by the Manhattan D.A. on my first try. A law school friend, Nancy Ryan, encouraged me to re-apply and encouraged Mr. Morgenthau to take another look. Being any kind of an academic was of no interest to me.

But: boilerplate motions are silly — except that they are something that overworked defense attorneys have to file to survive. Any unusual point they have in their favor gets lost when they push the buttons to copy what their colleagues said in the last 1000 cases. Prosecutors read those motions too — and respond with boilerplate of their own.  And so do judges.

Beyond that, the simplest thing to improve lawyers’ writing?  Divide those long sentences. It’s easy.

Q. With a resume like yours, you could have gone to work for any white-shoe firm in the country. Instead, you chose to dedicate yourself to public service, signing on with the New York County District Attorney’s Office under the legendary Robert Morgenthau.

Why? A passion for prosecution? Did you see yourself in the well, battling for victims and putting away the bad guys? Were you, like your new boss, a product of your time, committed to prosecution because it was an honorable calling and something the community needed? Do public servants like that exist anymore, in this access- and status-obsessed age?

A. Plenty of public servants like that still exist, and are desperately needed. They fill not only the DAs’ offices, but the defense offices and the court offices as well. By the time I left law school, my ambition was to be (if I may date myself) Perry Mason, but on the other side. I was lucky to have the option of not going to work every day, just to get paid.

Q. Obligatory first trial question. This would be back in 1977, when the City was a radically different animal than it is today. What were the facts? What was it like, standing in the well for the first time? Going in, did you think you knew what you were doing? And if so, did your confidence turn out to be well founded? Looking back now, were you all you thought you were at the time? Do you smile or cringe?

A. In a job interview, Peter Zimroth, then the head of the Appeals Bureau, asked: “gee, it wouldn’t be so bad to start in appeals, would it?” Not being the world’s dumbest interviewee, I said, “gee, that would be great!” I figured my Perry Mason moments were on hold for just a year.

But within a month I realized that appeals was perfect for me, and I settled in for the long term. The law was more attractive to me than all those grubby facts. As to the law, I had much to learn, but a lot of good teachers.

I did try one case later, just for fun. The guy was a pick-pocket. An E felon. I nailed him.

Q. You lasted 33 years at one of the nation’s highest-profile DAs offices, run by a professional with exacting standards. Did you immediately discover you were well-suited to the job, or did it take you some time to adjust to the workplace and the reality of prosecution? Did someone mentor you, help you get oriented, or were you entirely self-taught? Ever think to yourself, “I made the wrong choice?” Secretly wish you’d gone into defense?

In 1985, you became chief of the Appeals Bureau, perhaps the law-wonkiest job at 1 Hogan Place, where you remained for about 25 years. Was it that great? What was the worst thing you ever had to deal with as head of Appeals? Looking back, what impact did your tenure have on New York criminal law?

A. I always tell people that being a judge is the second-best job I’ve ever had. I loved appellate litigation. Every defense brief posed puzzles, factual and legal, and they paid me to play the game of solving puzzles. I was proud of my written work, if I made it the best I could. And oral argument is more fun than watching your favorite football team win the national championship.

My most entertaining was a habeas corpus argument before an en banc Second Circuit panel. I never got closer to the Supreme Court podium than to the chair beside Bob Pitler in two cases, but I had plenty of fun anyway.

Bob and all the senior appeals ADAs were, indeed, mentors.  Every substantial brief was edited by someone senior to the writer, and so you learned on every brief. The worst thing? When you are the bureau chief, you have to spend a lot of your time on administrative matters. But as the bureau chief, you get to pick the most interesting cases to do yourself.

In that regard, whatever impact I’ve had on the law has been as part of a team effort. In a public office with a very large caseload, it can’t work any other way.

Q. New York’s changed a lot since you started out as an ADA. Gone are the days when you had to fear for your life while walking through Central Park. Even relative to the rest of the nation, New York’s crime rate plunged precipitously during the ’90s. To what extent can we attribute the change to the work of prosecutors? What about cops, who, a couple of decades ago, didn’t always act with the integrity of today’s NYPD (think Knapp and Mollen Commissions)? Was it always a picnic, working with them to score convictions?

And has our newfound state of security, something most Millennials take for granted because they’ve never known anything else, blinded us to the importance of what prosecutors do? These days, even the Grey Lady occasionally takes up the “prosecutorial misconduct” refrain. Is this a case of Chesterton’s Fence, where people attack an institution without really understanding why it exists?

A. As a kid from the sticks, I was startled by crime conditions in NYC in the late ’70s and early ’80s. I was mugged one and a half times. I remember having to avoid the last car, the “marijuana car,” on the subway. I like the city better now. My daughter will never know that seedy a place.

Prosecutors worked hard, but we didn’t clean it up. The same, I think, with cops (with whom, as an Appeals ADA, I never worked). Times simply changed, as they always do, and this time far more likely for economic reasons than legal. But it still isn’t “all clear” out there. I see fact patterns involving conduct just as depraved as in the old days — just not as many of them.

I’m sure there has always been prosecutorial misconduct. I’m guessing it was far more prevalent in days gone by than now. Now, though, we are suddenly willing to look at it, as fear of criminals has lessened. And that is, of course, a very positive thing. We all agree that we can’t have privileged lawyers above review, for absolute power still corrupts absolutely. And that goes for judges and defense attorneys as well.

Q. In 2010, there was a major changing of the guard at the New York County DA’s office, the first real shake-up since you joined. Outgoing District Attorney Morgenthau, like you, with over 30 years of service to his credit, retired and was replaced by Cy Vance, who, in addition to refurnishing the office, moved some Morgenthau veterans out of their jobs and replaced them with his own people.

Before Morgenthau retired, you’d spent 25 years at the head of the appeals bureau and, at the end, served as his Chief Assistant. Then three weeks after he left, Governor Paterson nominated you to the Court of Claims. Did that appointment come at a good time? Were you eager to try your hand at judging? Thirty-three years as a prosecutor seems like long enough for anyone– were they? Were you ready to stick it out with a new District Attorney?

A. Essentially by accident, I had to fill a gap and become chief assistant when the boss had about seven months left in his final term. It was obvious that Cy would, quite naturally, bring in his own chief assistant. The boss was then kind enough to recommend me to the governor, and so I wasn’t suddenly out on the street.

And, as you suggest, after all those years I was rather ripe for a new challenge.  Plus, having a mandatory retirement age makes things simpler.  At 70, I will be quite happy to do a little more non-legal reading than I can now. But I would have been quite content to finish as an appellate lawyer.

Q. As a judge, you’ve written a number of decisions that could be interpreted as “defense-friendly.” But really, what you do boils down to looking beyond surface appearances. In People v. Abdul-Akim, you suppressed evidence after the police systematically violated the defendant’s Fourth Amendment rights. In People v. Hazzard, you weren’t afraid to call out a cop when the defense showed he lied about being given consent to search a home. And last year, in People v. Collins, you refused to sign off on junk-science, even though other judges had held their noses and done so.

Defense attorneys like to complain about former prosecutors serving as judges. You, however, have proven to be profoundly committed to deciding cases on the merits and without of bias. So are the kvetchers wrong? You served in an office known for its integrity, and contributed meaningfully to that reputation. Is what you do now an extension of your work ethic from your prosecutor days? And while you may not act on it, do you ever feel the pressure to do your former colleagues a solid?

A. In the DA’s office, I generally advised trial lawyers that if the legal argument passed the giggle test, and they really, really needed to do something, then they should do it (and let the appeals bureau clean up afterwards).

I think some of my former colleagues have been surprised at a few of my rulings, which don’t necessarily endorse steps I would have advised them to take back then. But I have a different client now. I have had no trouble changing gears, and looking at legal questions from a different perspective. A very large number of my judicial colleagues, in Brooklyn and now in Manhattan, were experienced prosecutors. I don’t think they have a problem making neutral decisions. Nor do my colleagues who used to be defense attorneys.

I will confess one thing. When I suppress evidence, I still feel sick to my stomach.

Q. Normally, we use the last question to ask where you might be headed next. But you’re now an Acting New York Supreme Court Justice, meaning you’ve just about reached the apex of the profession, and will suffer mandatory retirement in 2020. So instead, tell us some judicial war stories. Has it been as much fun on the bench as you hoped? How heavy are the shoulders that wear the robe? And what do you think of being told you’re soon to be over the hill? Do you miss the trenches, and ever wish you could go back to the well or the lectern for one last fight?

A. Who knows, maybe I will visit one or two courtroom lecterns after I retire. But as I’ve said, I have no problem with quitting full-time work at 70.

Being a judge is mostly fun. People suddenly have to laugh at my jokes; that never happened to me before. You worry about what your decisions will do to people’s lives, but most of the time, that can’t control your decisions. So you do your job. “Next case.”

War stories? Well, just briefly. I had a Sovereign Citizen defendant who, at a pretrial appearance, asked if he could say something. He told me that the American flag behind the bench was illegal. It had nothing to do with his “sovereign” philosophy. He said that the gold fringe around the flag was permissible only for flags used by the military. I looked it up. He was right. (But the flag is still there.)

I try to treat defendants like the human beings they are. Just talking to them civilly and explaining what is happening is key. Most defendants respond well to that, which makes life in the courtroom much easier. I especially remember one fellow in Brooklyn who started out very angry with the criminal justice system, and very loud about it. By the time I sentenced him, he was happy as a clam and told me he was looking forward to having me as his lawyer when he was released from state prison.

Cross: Brad Heath, Where Legal Journalism And Investigative Reporting Meet

December 14, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg  cross USA Today investigative reporter and lawyer, Brad Heath, who won the Hillman Prize for Newspaper Journalism on prosecutorial misconduct.

Q. You studied poli sci at Colgate in upstate New York, graduating Phi Beta Kappa and at the top of your class. The cool thing about poli sci is that it’s flexible, a good springboard for a number of careers. So what made you want to choose the daily grind, penury and lack of appreciation of a journalist’s life? Why not go to DC, or do an MBA, or go directly to law school? What was it that attracted you to the Fourth Estate?

A. Honest answer: Being a reporter always sounded like more fun.

I started in newspapers when I was in college, and was lucky to work at small papers that let me cover things interns had no business covering. I went to crime scenes, interviewed politicians, chased storms and firetrucks, and once ended up dragging a date to an arson and a murder arraignment. I couldn’t imagine giving that up. I still can’t.

But I also have different – and probably better – reasons for staying with it now. The press does important work. At our best, we hold those in power accountable for how they wield it. We reveal the decisions they would prefer be kept secret. We show the consequences of those decisions, for good and ill. We help people see and experience the world in which they live. Those things strike me as important and worth doing.

But it’s still fun.

Q. You cut your teeth at the Press & Sun-Bulletin in Binghamton, New York, a local paper serving a metro area of about 250,000 people (then as now). As head investigative reporter, you were responsible for covering major national stories, but you also instigated investigations of your own. We keep hearing that small-town papers are beleaguered and struggling to compete with the big nationals, but do local papers have competitive advantages of their own?

Did the local focus of a paper like the Press & Sun-Bulletin allow you to devote time and attention to stories that would otherwise get lost in the noise? Was there, perhaps, more recognition for your journalism than you’d have gotten in a massive newsroom? Or was it all bad? That early in your career, was it intoxicating to be responsible for presenting the news to your slice of America? Or were you eager to move on to the big leagues?

A. I loved working for a small paper in a small city.

First, opportunity was there for the taking (and – attention young journalists! – it still is). The Press & Sun-Bulletin hired me as a health reporter, and I probably wrote a dozen health stories before my editors let me go off and cover Hillary Clinton’s first Senate campaign. They let me dream up investigative projects that took six months to execute. They sent me to New York the day after the terrorist attacks on September 11, 2001. They let me borrow a radar gun from the local baseball team to try to catch speeding cops. They didn’t use the word “no” a lot.

Second, local connections really matter. It helps to know the people you’re covering, and the readers for whom you’re covering them. It helps to be able to get in the car and go talk to people. (These days, there’s a good chance I’ll have to book a flight.)

Third, local institutions matter. The national government is huge and powerful. But it was local housing inspectors who failed to stop a landlord from letting his low-rent apartments deteriorate to the point that they became a danger. Local police have a lot more impact on a lot more people than the FBI does. Local politicians control the property taxes. Some of those institutions work really well; others don’t.

One of the last investigations I worked on in Binghamton showed that local property taxes were badly out of balance, meaning many people paid far too much because their neighbors paid too little. Our readers devoured it. And they showed up in town halls and used our research to challenge their tax bills. I was too young and too naïve when I started as a reporter to understand just how important that kind of coverage is. I’m still learning.

Small newspapers – all newspapers – really are struggling now. They still put out a pretty good paper in Binghamton, but it’s a fraction of what it was when I left 14 years ago. Like everywhere, there are fewer reporters and editors to cover a more complex world. Local papers’ competitive advantage is that they’re not competing with The New York Times or USA TODAY. In a lot of places, they’re still the only source for timely and reliable information about your schools, your taxes, your roads, and your mayor. When I worked in Binghamton, our main competitors were a pair of local TV stations, and a lot of what you saw on their evening news was based on what they learned in the morning paper.

Q. In 2002, after two years at the Press & Sun-Bulletin, you moved to the Detroit News. There, you got your first taste of the power of journalism when an expose you wrote on dangerous drivers led to the passage of a law that mandated harsher penalties for drivers with bad records. Did you expect that kind of reaction? Was passing a new law the right response? Your previous work, covering federal, state and local malfeasance at the Press & Sun-Bulletin, presumably taught you the risks of kneejerk government intervention. It’s gratifying for a journalist’s work to have real impact, but were you at all mindful of the potential downside of drawing attention to something that could result in the passage of a bad law?

A. Last part first: No.

Part of this is an institutional bias. I think you’re right that reporters like to see people act on the information we provide. I do, because it means somebody thought the story was important. Good journalism can stir people to outrage, kindness, or even legislation. But we should pause more often to evaluate that impact. But that gets to an even bigger (and, in my view, appropriate) institutional bias in favor of telling people about things.

We provide people information; what they do with it is up to them. I have a hard time imagining a circumstance in which I’d even contemplate not reporting on something because politicians might respond by passing a law I don’t like. What we should do – and often don’t – is follow-up, and try to figure out whether the government actually fixed the problem, and at what cost.

I don’t know the answer to how Michigan’s bad-driver law worked out. Somebody should probably find out.

Q. You arrived in Detroit while the “9/11 Changed Everything” trope was still very much in effect. What impact did that have on the stories you covered, the view toward law enforcement, who enjoyed the reflected heroism of police and firefighters who lost their lives at the Twin Towers? You covered areas like anti-terrorism measures in a major city. Was there serious scrutiny at the time? Was it acceptable to question or challenge Detroit’s handling of terrorism issues? Did you? Looking back now, would you have handled it differently?

A. I’ll say at the outset that I was a small player in our coverage of anti-terrorism issues. This was a huge issue in Detroit, where the government brought one of its first major terrorism cases after the September 11 attacks, and The Detroit News was already covering it aggressively when I arrived. Some of the paper’s top reporters were watching the Justice Department’s tactics pretty aggressively, and asking smart questions about who they were targeting and why. That led to an impressive investigation of how the federal government was looking for terrorism suspects in the local Arab community.

I got involved later, when one our reporters wanted to follow the legal trail to city court in Dearborn, Mich., where Arab residents complained that they were being targeted by local police. We reviewed the court’s electronic dockets, matched surnames against lists of Arab and Muslim names, and talked to a lot of people. There weren’t many rocks we didn’t turn over. I was involved in some of that coverage; I learned a lot by watching skeptical work by excellent reporters.

Q. Unlike the vast majority of journalists who write about the criminal justice system, you’re an honest-to-god lawyer with a fancy degree from Georgetown. But you didn’t go to law school until 2007, one year after you started at USA Today. What made you want to subject yourself to that particular torture? A more in-depth knowledge of the field you were covering? But plenty of dilettantes without an education to speak of manage to turn out criminal-justice copy. Standards too high for legal journalism a la Slate and Gawker? Or were you secretly planning on a legal career? What gives?

A. True story: I actually liked law school. Or at least most of it.

My editors were nice enough to let me go at night. A few times, I filed stories from the back of the classroom. I analyzed foreclosure patterns in Denver during torts. But somehow I still ended up learning a lot about a lot of things, in no small part because Georgetown’s night program attracts a fascinating mix of people working in DC. I learned intelligence law in a class full of intelligence officers. I learned about detainee reviews in a class whose students had previously run detainee tribunals in Iraq. (The torture was realizing that we’d be graded on the same curve.)

I went to law school in part to make myself a better journalist, and in part because newspapers were struggling and I wanted to have an escape hatch if I needed one. Then, about halfway through, a friend from college emailed to tell me he’d been laid off from his law firm and to ask whether it would be a good time to get into newspapers. Some escape hatch.

Q. Coming out of law school, big-time national reporter that you were, you still managed to be at the top of your class, magna cum laude and, ahem, Order of the Coif. With a pedigree like that, did you consider monetizing that effort and going to a big law firm to make it pay? If you had chosen to practice, would criminal law have been your thing or would a cushy gig at mergers & acquisitions have suited you well? You’re admitted to practice in state and federal court in Virginia? Have you given it a try? Do you want the chance to make a federal agent cry on cross?

A. By the time I got to my last year of law school, I wasn’t really thinking about going to practice law. But one day, a career counselor emailed to tell me that Georgetown had assigned me a career counselor, and to recommend that I apply anyway. I did, and I talked to a couple litigation firms.

But I ran into two problems I couldn’t get over. First, I’ve been lucky in my career that my editors have let me go after pretty much any subject or story I wanted. It’s rare when they tell me what to do, and rarer still that I listen. So doing what the client wanted wasn’t totally appealing. Second – and more important – is my time. I remember interviewing with a partner at a litigation firm who was a couple years older than I was. He had a picture of his son on his desk. And he told me that although he typically worked insane hours during the week, and on Saturdays, his wife knew that Sunday afternoons were usually for her. It was a clarifying moment.

I’ve never really practiced. I do my own administrative appeals when the government turns down my Freedom of Information Act requests, but I don’t litigate them. I work for a big company that can afford lawyers who are much better than me.

But thanks for the questions that are making me look at the balance on my checking account.

Q. You’re noted for the deep dives you take into some of the most serious issues confronting the legal system, investigative reporting in its truest sense. Of your more recent efforts, your work on fugitive extradition was exceptional, and garnered you quite a few awards as well. What made you go there? It wasn’t the trendy issue of the day, and while others were focused on drug war, sentencing reform and police demilitarization, you chose to do serious investigation instead. How did you come to the story? What made you decide where to put your efforts? What tells you, “this is where I really need to dig”?

A. The part of my job I like most is that I have the freedom to read the newspaper, wonder how something works, and spend some time figuring it out. The extradition investigation is a pretty good example. I started looking into it because I saw a story in The New York Daily News about the man who murdered NYPD Officer Peter Figoski in 2011. Before Figoski’s murder, his killer had been accused of another shooting in North Carolina, arrested in New York, and set free because the authorities didn’t want to come get him.

I read the story and wondered how often that happens. I didn’t know there’d be a story in it; I guessed that it was probably pretty rare. I called around to local sheriffs and jails. Eventually, I asked the FBI for a copy of their database of wanted fugitives, and – I’m still surprised about this – they sent me part of it. It listed 186,000 felony warrants for which the police had decided not to pursue someone out of state. That surprised me. It surprised the people who sat near me. That’s often my first test for whether something’s worth a deep dive.

And I’m still learning how to find the best and most important stories. A few years ago, a lawyer tipped me off to a case in which the Justice Department had acknowledged that a man convicted of illegally possessing a firearm was “legally innocent” and urged the judge to keep him locked up anyway. A cursory check of court records turned up dozens of federal prison inmates in a similar situation. This was obviously a story. But I still spent the better part of a week getting over the fact that it was only happening in North Carolina. A good editor set me straight.

Q. You started out at a time when newspapers still, for the most part, relied on dead trees. But things have changed overwhelmingly in the past fifteen years, and you were consistently one of the people to see it coming. Throughout your career, you’ve helped the outfits you worked at adjust to the new world order, ranging from helping the Press & Sun-Bulletin develop databases to creating apps for USA Today.

First off, where’d a poli sci major – cum – lawyer get those tech chops? How’d your employers feel about the intrusion of new tech into an industry that, for decades, was a byword for “staid and settled”? And what about us alternative media outlets? Can blawgers hope to approach the mainstream media’s level of journalistic sophistication? Are we an annoyance, a thorn in your side? Or do we have some kind of weird, symbiotic relationship?

A. I was – am – a nerd about this stuff. So I taught myself enough about databases and writing code to get by. I’ve been fortunate to work for editors who have been supportive and thoughtful about the role tech can play in our work. And they’ve grasped the need to innovate to serve our readers better.

When I worked in Binghamton, I got an electronic copy of the county’s payroll and we tried to put it online. Our website wasn’t great, so the only place we could figure out to do that was on the company’s email server. That got us some angry phone calls from corporate IT. A couple months later, we got a much bigger database of property assessments and ran it out through the same setup. That got us a corporate award.

I couldn’t do my job without basic tech skills. To investigate extradition practices, I had to merge big, ugly datasets with millions of records, and download millions of court dockets. I have robots that mine federal court dockets for things that might point to bigger stories. At first, that kind of thing let me find stories my competitors couldn’t. Now it’s the price of entry for even having a chance of figuring out how big, complicated institutions actually work.

I’m a fan of law blogs, and a lot of other alternative media. In general, I think we benefit from hearing more voices – and especially from practitioners. I don’t read them expecting dispassionate coverage. I don’t expect law bloggers to spend a year investigating prison discipline in New York, or to match thousands of FBI fugitive records to court documents. But law blogs that explain how things work, or how they should work, or where some court got something wrong, are helpful – to readers trying to understand the law, and to journalists looking to explain and investigate it. So are law blogs that tell journalists where we get it wrong. (It’s especially annoying when you’re right.)

Q. We live in a time of advocacy journalism, where reporters from either end of the political spectrum put political narratives ahead of facts, which have an inconvenient way of not fitting their ideologies. Is this as bad as it seems, or is it just a reflection of the times we live in? People gravitate to the media outlet that promises to confirm their bias. The next generation of journalists, currently at college, is learning that disagreement – however mild – is a major no-no and constitutes hate speech. The likes of Vox and Politifact were founded on the idea that it’s better to turn out propaganda than neutrally report the facts, which they claim are indigestible to the average reader.

Where do you, an old-school investigative journalist, stand on this? USA Today is still a platform for sane journalism. Will you, too, succumb to the insanity? Unlike many of your colleagues, you’ve got the chops to turn out quality reporting and a track record of doing so. But as of late, even law professors at Ivy League colleges are producing articles that are pure advocacy, things that have nothing to do with the law as it is and everything with how they think it should be. When the time comes to abandon reality and turn out clickbait, will you go gently into that good night? Or will you bear up against the storm of listicles, “fake news” and garbage?

A. We’ve always lived in a time of advocacy journalism. Newspapers, in particular, used to be tools of vicious partisan advocacy. Serious, straight coverage is a relatively recent innovation. And it’s a hard one. I know I can’t totally set aside my worldview when I approach a story, though I can try to be aware of it and keep an open mind.

I agree that advocacy and opinion proliferate online. And I basically think that’s good. The new twist, I think, is that advocacy, serious investigations, clickbait and deliberate lies all show up in your Facebook feed or browser looking more or less the same, and a lot of it is filtered to reflect your preexisting opinion. So it’s harder to be a discerning reader of the news now, and easier than ever to stay sealed up inside a bubble that comfortably reaffirms your views.

Clickbait isn’t in my future, and fake news – to the extent it’s populated by deliberate lies – it’s basically fraud. If that day comes, I’ll take up gardening. But we’ll have bigger problems than the demise of the news industry.

But we in the news media should also pay attention to what the clickbaiters and even the liars are doing, and how they’re doing it. They’re reaching readers. (We still reach more.) We’re being naïve if we don’t acknowledge that the way we tell stories and deliver information has to keep up with the ways in which our readers want to get their news. And we should listen to the people who are tuning us out or don’t trust us anymore, because there are lots of them.

I don’t think the challenge facing USA TODAY or The New York Times or The Wall Street Journal is whether we will eventually succumb to lies, clickbait or partisan spin. We won’t. The challenge is how we build trust with readers while delivering the most reliable information we can in the ways they want to consume it. We should take those ideas wherever we can get them.

Q. Ordinarily, the final question asks what the future holds for the witness, but in this case, maybe the better question is what does the future hold for serious journalism? Is there any future for dead tree journalism? Is there money or interest to fund the sort of thorough investigative reporting you exemplify? Will the push to get words on a screen and clicks for advertising subsume accuracy and depth? Will there be any appreciation of a journalist with integrity in an age obsessed with advocacy? What happens to Brad Heath when it’s all kids at Huff Post who’ve never actually written in cursive?

A. I’m pretty optimistic about the future of serious journalism.

For all the clickbait and garbage, this digital revolution has also brought us ProPublica and The Marshall Project, both of which are producing some of the most sophisticated coverage of law and justice that you’ll find anywhere. The Huffington Post was on the streets in Ferguson, Mo. when unrest erupted after the death of Michael Brown, and it’s published a slew of thoughtful stories on prisons and sentencing reform.

I don’t know yet where the money will come from to pay for that. ProPublica and The Marshall Project are getting it from donors. That’s one way. But I also think that reliable information is valuable, and has a commercial future.

People crave strong, authoritative journalism. We see that at USA TODAY. We chase lots of breaking stories, and have lots of articles about whatever went viral on Twitter yesterday or whatever weird thing one politician or another said online. But it’s our original reporting – whether investigations or deeply researched pieces on executive power or diversity in tech – that our readers gravitate toward. A lot more people read those stories, they spend a lot more time with them, and they’re much more likely to share them with their friends. I take that as a sign of appreciation.

 

Cross: Jonathan Adler, Focusing On The Crush Of Regulation

December 7, 2016 (Fault Lines) — Ed. Note:  Scott Greenfield and David Meyer-Lindenberg cross Jonathan Adler, Johan Verheij Memorial Professor of Law, Director, Center for Business Law and Regulation and Volokh Conspirator.

Q. In 1991, you graduated magna cum laude from Yale with a degree in history. We’re not surprised your record of academic excellence reaches back that far, but we have to ask: why history? Where’s the connection to the environment, government, constitutional law, all the things that’ would preoccupy you in later years? Did you have a plan going in? Was law school always on the horizon? And did you ever guess you’d turn to the dark side, become a professor?

A: One summer in high school I took a course on early American political thought, and that class really sparked an interest in American political and intellectual history. I think those subjects helped lead to my interest in the law, as did the encouragement of my thesis advisor. Given my emerging politics, he suggested law school would be a safer route to academia than a Ph.D. in history or political science.

As he put it, the worst case scenario after law school would be getting well-paid as a lawyer. A Ph.D., on the other hand, would not open as many potential alternatives. That said, I really did not have much of a plan in college. By the time I graduated, I said I wanted to be a mid-level officer in the war of ideas, but wasn’t sure whether that meant becoming an academic, working in politics, or something else.

As for environmental policy, that grew out of my interest in the outdoors, and the time I spent growing up hiking, camping, fishing and hunting. Figuring out how to protect these things in a way that is compatible with other values is endlessly challenging and interesting.

Q. After undergrad, you spent nine years working as the Competitive Enterprise Institute’s director of environmental studies. What attracted you to the job, and how’d you get it? The job required you to have a thorough understanding of complex federal laws and regulations, but you didn’t have a law degree or any formal education in the field. Where did you get the chops to not only take on that role, but thrive in it? And what made you want to throw your hat in the ring as a libertarian environmental thinker, at a time when government and public opinion, broadly speaking, were headed in the opposite direction?

A: I ascribe much of my career to serendipity. I spent several summers in Washington, D.C. while in college, which allowed me to make significant connections at various think tanks and policy shops. That’s how I met the folks at CEI, which was then a tiny policy boutique headed by a guy named Fred Smith. Due to these connections, I was recommended for a job there – essentially as a policy analyst and research assistant to Smith – just before I graduated from Yale.

The idea of trying to apply libertarian principles to environmental problems was tremendously exciting and it seemed like a great way to spend a few years before figuring out what I was really going to do with my life. Little did I know, CEI was about to go through a massive growth spurt. When I showed up, it was a tiny place with only 8 people and a half-million-dollar budget. Within a few years, the organization had tripled in size, and I rode the wave, eventually taking over the environmental department. My role was to be the generalist who coordinated the specialists in what was a growing and increasingly influential program, and I guess I was good at it.

Q. During the 90s, CEI argued that federal environmental regulations weren’t just cumbersome, but ineffective (and frequently counterproductive). You lent your support to a new group of thinkers on the subject, known as free-market environmentalists, who championed regulatory reform and market solutions to environmental problems. And in that vein, on several occasions, you gave testimony to Congress on the encroachment of environmental laws on private property rights.

Looking back, were efforts to reform public thinking on the wisdom of state-sponsored environmentalism successful? How have things changed? Were subsequent administrations more responsive than the Clintons to the idea that less federal involvement is more? Just how cumbersome are we prepared to let things get before we come around?

A: I think the work we did at CEI in the 1990s was important, but I am not sure how successful we were. On the one hand, we helped develop some powerful critiques of traditional environmental regulation and helped legitimize the use of property-based or market-oriented approaches to some problems.

On the other hand, we failed to convince policymakers to rethink their overall approach to environmental policy. When Republicans took over Congress in 1995, for example, it was much easier to convince them that environmental regulation was bad than it was to convince them that they needed to embrace an alternative approach to environmental protection, and other than in a few select areas, the Bush Administration was not much better. Working with conservatives on these issues sometimes felt like banging my head against a wall.

Q. In 1996, while you were still employed at CEI, you chose to go back to school and get a law degree. You outdid yourself at George Mason, graduating summa cum laude and valedictorian. Why’d you make that move? To refine your knowledge? Or were you already planning to sign up with the academy? You clerked for Judge David Santelle on the DC Circuit, and you were a summer associate at the DC branch of Kirkland & Ellis. With a career in Biglaw as an option, why’d you choose to become a professor? Passion for teaching? Glutton for punishment? Or was it simply the right environment in which to develop your ideas?

A: After working at CEI for a few years, and finding myself waist-deep in regulatory policy, I realized I should go back to school. If I was going to play lawyer on TV, I should at least have the degree. And since I lived in Virginia, I realized I could get my degree at night at George Mason without having to go into debt. The aim, at that point, was not so much to get into academia as it was to flesh out my understanding of the law and perhaps gain the tools I would need if I ever wanted to pursue public-interest litigation.

During my summers at Kirkland, I focused on administrative law – basically helping the firm’s clients who were suing or getting sued by the federal government – and I thought I’d found what I wanted to do. I applied for clerkships on a lark – because it was something I wanted to do, but not because I thought I’d actually get one. My year on the D.C. Circuit was an amazing learning experience – perhaps the most educational year of my life – and it also provided the opportunity to continue working on some scholarly projects I had begun in school. Apparently some folks were reading what I was writing, as I was recruited at Case Western and figured the opportunity to become an academic was not one I should let pass by.

Q. In 2001, you left DC for Ohio when you were hired as assistant professor of law at Case Western. It turned out you had a remarkable gift for teaching: three years in, you received the Federalist Society’s Paul M. Bator Award for all-around professorial excellence, and in 2007, Case Western gave you its annual Distinguished Teacher Award. Nor were you behind in scholarship; in the past ten years, you’ve been consistently recognized as one of the most-cited authorities on administrative and environmental law (and the most cited of all in your youthful age group.)

Juggling the teaching and scholarship requirements of the job is a major challenge for many professors; how do you do it, let alone so successfully? And you made tenure in 2006. Now that your job’s secure, why aren’t you content to sit back and, like a sea squirt that’s found a place to attach itself, dissolve your own brain?

A: I’ve found that my teaching and scholarship actually complement each other. My regulatory policy experience in D.C. helped inform both, and I find that intellectual engagement with the subjects that I teach helps me bring more insight and energy into the classroom. Researching and writing on a subject makes it easier to teach. I also have largely been fortunate to teach in areas that I find inherently interesting, and I do what I can to communicate my enthusiasm for these subjects to my students.

Q. At around the time your law-professor career was taking off, Eugene Volokh founded Volokh Conspiracy, one of the longest-running and most influential blawgs (and definitely one of the most professorial). You’re an O.G. Conspirator, having joined as a pseudonymous contributor in 2002. Since then, you’ve become one of its leading lights. At the same time, due in no small part to VC’s migrating behind the WaPo paywall in 2014, its audience has grown massively and changed nearly as much. Is catering to the tastes and expectations of the WaPo readership as much of a change of pace as one would imagine? Do you ever feel pressure to reduce the complexity of what you write about, lest your message not get across? Is writing for a mainstream readership a healthy exercise in clarity? You’re not afraid to challenge liberal sacred cows. Has there been backlash or pushback from VC’s new fans? If so, does it matter to you, or are you used to all that from millennial students?

A: Blogging at the VC has been a tremendous opportunity and I’m quite grateful that Eugene invited me on board way back when. At the time, blogging was a fun outlet, but we had no idea where it might lead (let alone that we’d collect such a following).

For me, blogging is often a way to try out arguments and to explore issues that are more current or fast-moving than the focus of my scholarship. As you suggest, it’s also a good platform for learning how to discuss complex issues in a more accessible manner.

I don’t think I dumb-down my posts, but I do make an effort to keep my posts accessible to non-lawyers and non-academics, and I think this helps improve my other writing. I do not believe that legal writing has to be technical or obtuse to be effective. To the contrary, I think the best legal writing should be readily intelligible to lay readers. I hope that’s true of my blogging and my scholarship as well.

The shift to the Washington Post has been interesting. It’s certainly expanded our readership and reach, but it has also had some downsides. When Eugene first launched the VC, it was a small little site with a core dedicated readership that never hesitated to challenge our claims. The early comment sections often provided highly substantive commentary on our posts, and I would regularly read – and respond – to the more substantive comments.

This is something that’s been lost in the shift. A wider readership has also meant a wide array of commenters, including lots of people who are not particularly interested in substantive discussion. While many of our old commenters are still there, they often get drowned out by partisans and trolls. This makes it more difficult to engage substantively with the comment threads and, frankly, makes me less inclined to read the comment threads on my posts. I’m sure it’s discouraged some of our older commenters from continuing to engage as well.

Q. You’ve been a sought-after legal commentator for a while now, and last year, when you took a bold, public and confident stance in opposition to the Supreme Court’s ruling in King v. Burwell, you knew what you were getting into. When CJ Roberts delighted fans of the ACA by putting aside concerns over what the law said in favor of SCOTUS’ interpretation of what the government wanted it to do, manufactured statutory ambiguity and rewrote the law accordingly, you were there, calling shenanigans from atop the WaPo’s soapbox.

In short, the decision wasn’t exactly a textualist’s wet dream. And instead of resolving the law’s “ambiguity” by applying Chevron doctrine and deferring to the feds’ interpretation, SCOTUS went ahead and inserted its own. The icing on the cake is that it did so by declaring the problematic parts of the law meaningless. What does this kind of judicial fiat imply for textualism? The future of Chevron deference? The notion that courts don’t exist to legislate? Has CJ Roberts gotten too big for his boots? What’s to be done?

A: I would not write the things I do if I expected courts – let alone the Supreme Court – to follow my lead. The King litigation was something of an accident, in that I first wrote about the relevant provisions in the ACA without any knowledge that the Administration was planning to (in effect) rewrite the statutory text, let alone that someone would sue over it and take the litigation to the Supreme Court.

Yet once the litigation began, I was not about to change my interpretation of the law just because it was controversial. But I also never expected the plaintiffs to prevail. I am no fan of the King decision (a point I’ve made at length), but (as I’ve also written) I think it fits with the Chief Justice’s general approach to deciding high-stakes cases. Whatever commitment the Chief has to textualism takes a backseat to his reluctance to embrace broad decisions with potentially disruptive consequences. What this meant in King is that he would not embrace a reading of the statutory text – a reading he himself called the “most-natural” reading – if it meant a dramatic change in the way the law was being implemented.

I appreciate the concern that following the statutory text would have made millions of people ineligible for health insurance tax credits, but I also believe that fixing such problems is the job of Congress, and not the courts. Legislators created the mess, and we should expect legislators to fix them. That said, I think that some parts of the decision, such as the curtailment of Chevron deference, are important silver linings and could have a positive effect down the road.

Q. Speaking of deference, you’ve been commenting on a related legal drama: federally-compelled bathroom access for transgender students. DoE interprets Title IX, which authorizes it to police discrimination based on “sex,” as covering gender identity. Others disagree, pointing out that the meaning of “sex” in 1972 doesn’t allow for that possibility and that Congress’ consistent refusal to amend the law to address gender-identity discrimination speaks volumes.

Some courts have been all too quick to defer to DoE. In a recent VC post, you pointed out that a now-stayed Fourth Circuit decision confused Auer with Chevron deference, applying the wrong doctrine in its haste to give the feds the green light. But you’ve also said that deferring to DoE here may not be entirely wrong, because “sex,” as used in Title IX, could be sufficiently ambiguous to make the feds’ interpretation legit. How’s that possible, given that in 1972, “sex” was universally understood to refer to “male” or “female” as expressed in chromosomes and sex organs? Where’s the ambiguity here?

A: I’m a textualist, and I don’t put much faith in ex post efforts to discern congressional purpose from extra-textual sources. The text is what goes through bicameralism and presentment. Unstated intentions do not. This is why I took the position I did in King, and it also explains my views on Title IX.

In Title IX, Congress prohibited discrimination “on the basis of sex.” It also made clear that equal sex-specific facilities (such as bathrooms or lockers) are permissible. What Congress did not do, however, is define “sex,” or otherwise explain how the law should apply to individuals of indeterminate sex, such as intersex individuals or those born with X-X-Y chromosomes, or to transgender individuals. If someone is transitioning from male-to-female or vice-versa, at what point should they be recognized as one sex or the other? Title IX provides no guidance on this point.

As a consequence, under current doctrine, it is up to the agency to resolve this ambiguity. As I’ve argued on the VC, I think this means the Education Department could adopt regulations that provide some degree of protection for transgender individuals. Yet as I’ve also explained, that’s not what they did.

Q. As a libertarian, you’ve survived for over fifteen years in an academic milieu that’s noted for its hostility to non-progressive thought. What’s the secret? Why are you willing to challenge liberal orthodoxy on things ranging from environmental regulations to the viability of the ACA as written, when so many other professors are terrified to do things as mild as criticize political correctness? What about those who applaud when public colleges violate students’ First Amendment rights? What’s wrong with the ivory tower?

And what about your students? You’re a gifted and well-liked teacher, but even so, a quick perusal of ratemyprofessor.com shows some of them wish you were more liberal. What are you doing to cope with the zeitgeist?

A: I’m not sure I have any secret. Given all of the policy work I did in the 1990s, including countless op-eds on a range of subjects and contributions to National Review Online, my political orientation was never much of a secret. I have, however, always sought to engage others with civility and respect, even when these courtesies were not returned. I’ve felt that if I set a good example for how to engage in civil discourse, this will be appreciated more often than not – and deprive my critics of extraneous reasons to attack me.

I know that some students don’t like my politics, but I think most would tell you that I rarely discuss my personal views in class. My job as a professor is to help teach my students how to think, not what to think. I take that obligation seriously, and I think (and certainly hope) that most of my students appreciate that.

Q. After fifteen years as a professor and twenty-five as a public intellectual, you’ve got unimpeachable cred and a stellar record to look back on. So what’s in your future? Are you happy teaching, giving talks and publishing articles, or do you secretly want a change of pace? A career in litigation? A seat on the bench and a robe to go with it? What’s next for Jonathan Adler?

A: I think it’s safe to say that I won’t be facing a Senate confirmation anytime soon (if ever), and that’s okay. I do the work I do because it is of interest to me, not to curry favor with politicians or set myself up for some other job. As I see it, I have one of the best jobs in the world. I am essentially paid to learn and think about interesting subjects and to help communicate this knowledge and understanding to others. For a dork like me, that’s pretty ideal.

 

 

Cross: Sheriff Russell Martin, Restoring Integrity In Delaware County, Ohio

November 30, 2016 (Fault Lines) — Ed. Note:  Scott Greenfield and David Meyer-Lindenberg cross Delaware County, Ohio, Sheriff Russell Martin, who took over following the resignation of his predecessor.

Q. Some people go to college without a clue what they want to do in life. You, on the other hand, went straight for a career in law enforcement; after you completed an associate’s degree in law enforcement technology at Rhodes State, you went on to Bowling Green U, where you got a bachelor’s in criminal justice. What made you want to take up the mantle of cop? Why not join up directly, instead of putting yourself through half a decade of grueling study? (Was it actually grueling?) Did you have your heart set on the big job, chief or sheriff, from the start? And why did you stay in Ohio?

A. I originally entered college with the intent of pursuing a degree in journalism. It was 1976, and on the heels of Watergate investigative journalism had reached elevated interest. During my high school career I participated in several sports and caught on with the hometown “rag” as a weekend stringer who for a few bucks covered local sports throughout the county. I loved writing and enjoyed picking the brains of local coaches for their sports and leadership tips.

The journalism school was full of incoming freshman and it didn’t take long to discover that the job market would be glutted with aspiring journalists. My dreams of covering the Super Bowl for Sports Illustrated got a quick dose of reality when a long since defunct newspaper’s editor visited a class one day and candidly told many eager freshman that a career in journalism was going to be a difficult task. “Make journalism a minor.” he said.

As the result of spending too much time in the school gym playing pick up basketball, and not enough time on my philosophy and economics courses, I saw my grades begin to dip and started to rethink my career goals. Neither of my parents had attended college, but both had a desire to see their only son acquire a degree. I started to consider a career in the military and when I mentioned this to my father, a former member of the Army, he appealed to me to stay the course.

At about that same time I was seated with a group of students watching a made for TV movie entitled “Helter Skelter.” The movie was obviously about the Charles Manson murders. Students then had to share a television in the lounge and the mini series captured everyone’s interest. I began to wonder about the satisfaction police officers must feel when they take someone off the street who really is a menace to society. I claim that was about the time I became “infected” with the virus that would eventual grow into full-fledged case of “love for policing.”

Our family always had a respect for local law enforcement in the small community in which I grew up and when I mentioned this to my parents, neither discouraged me from the pursuit. But they also desired that I still get a college degree to compliment my career choice. The academic and career journey began with the choice to enroll in a local community college that offered an Associates Degree in Law Enforcement, while exposing me to the realities of policing.

Q. After you completed your studies in January of ’81, you signed on as a patrolman with the City of Delaware Police Department. Along with bad hair and worse music, the early 80s were notable for a nationwide rise in crime, part of what would turn out to be a thirty-year “crime wave.” In Ohio, however, the story was a little different: from 1980 to 1985, violent and property crimes actually fell, and quite steeply.

As a result, were you and your fellow beat cops insulated from the criminal-justice trends – notably, Reagan’s massive expansion of the War on Drugs and all that followed – sweeping the nation at the beginning of your career? Were you stewards or sheepdogs? Talk of police militarization was still decades away, but in retrospect, were there already “warrior cops”? How did policemen (there weren’t many female police officers back then) see their own jobs? What did Ohioans think of the originally Left Coast concept of community policing?

A. I joined the Delaware Police Department after a year of marriage and a stint working in local meat packing plant, all the while taking civil service exams throughout Ohio. I refer to that year as the “graduate school of hard knocks.” Working 12-hour days in a tough environment with few benefits solidified the work ethic that I would need to have a successful law enforcement career. I always say my worst day as a police officer was still better than my best day in the meat packing plant.

That year in that environment helped grow an already deep respect for the laborer, and I believe they are anything but common. It’s one reason of many why I believe in being a good steward of the taxpayer’s dollar. They work hard for their money and deserve public servants willing to work just as diligent and hard with their taxes and for their citizenry.

The police agency I joined was already starting to make changes in professionalizing the department. I was among a group of college graduates that were hired at about the same time. The Police Chief, Dick Browning, was using psychological evaluations to review candidates and had set in motion many progressive policing ideas that saw the department move from local hires with a military background to a broader candidate base, including the first women to join the department. The Chief also applied for and benefitted from numerous grants that were available to purchase equipment. He was also the agency’s first FBI National Academy graduate and understood the benefits of advanced training and education.

Delaware City, located almost dead center in the state of Ohio, had your typical “garden variety” crime. We didn’t deal with typical urban problems at the time and our frequent calls were thefts, domestic disturbances and bar fights. But one thing was evident. There was a growing interest in officer safety and tactics. I believe it was the beginning of a two-decade focus on training officers to be more warrior and less problem solver.

It was well intended, and as a young officer I was not interested in dying in the line of duty. We reviewed data and scenarios in the academy about officer line of duty deaths and specifically the high percentage of officers (over 50%) who were killed with their own handgun when it was taken from them while on a call. I believe it was the beginning of a transition from community policing to an emphasis on survival and suspicion.

It would eventually have the desired effect in that fewer cops lost their lives in the line of duty, but it probably contributed to a sense of slight paranoia that on any given call you could be killed with the gun you brought to that call. Good police officers were able to maintain the balance between relationships with the community you serve and managing calls tactically. But for the next two decades, a lot of training revolved around officer survival. And who would argue against it or the possible unintended consequence? Frankly, we all wanted to get home safely at the end of the shift. Period.

9-1-1 and response time began to impact policing philosophy, and evaluations often mentioned how long you took on calls or your availability. I was once criticized in an evaluation for walking a small block that included a few bars and a movie theatre because I often stopped to visit with the owner of the theatre. Sometimes he would provide observations about what he witnessed outside the bars, but often we just talked about family. For fear of being disciplined in the future, I trimmed back my visits and unfortunately spent more time in my cruiser and less time walking the downtown.

Q. After ten years on patrol, you started getting promoted through the ranks; you held a number of increasingly senior supervisory jobs. One bone of contention for advocates of criminal-justice reform is whether police administrators can be trusted to impose consequences on their fellow cops for misconduct. What about you? Since you’d gotten promoted off the street, were the bonds of camaraderie especially strong? Were you willing and able to punish bad actors? At the time, what kind of questionable behavior was tolerated, and what tended to be punished? How have things changed?

A. Day in and day out, you respond to calls with co-workers that you depend upon to help you quell a domestic or wrestle someone larger than you in a bar fight. You experience and share some of the most intimate and personal struggles that people have in their lives with a handful of fellow cops that very few other people even realize are occurring. You sit in the locker room after each shift often engaged in an informal debriefing about the arrest you made, or what could have happened.

Few professions provide such visceral and raw emotions or experiences. Perhaps only in a foxhole do people bond any tighter than the cops who routinely work together on shift for several years. When they work in concert on high-risk calls and restore safety and order in the midst of chaos it can be a beautiful thing to observe. But it does create alliances and allegiance to each other that if left unchecked or unrealized can cause co-workers to struggle in ethical decision-making.

The struggle is the result of human nature and empathy, not some inherit desire that turns those in authority into abusers of their responsibility. On one hand you want to hire people capable of empathy and concern, but then we ask them to dial it back when they develop those same feeling toward coworkers. But the reality is that when you apply the social contract theory to American policing, the expectation by the community you serve is that the police are held to a higher standard. And rightfully so.

I had to discipline a sergeant when I became Chief for conduct that I strongly believed compromised community trust. This sergeant and I had handled the most high profile homicide cases in our community when we worked in the same division and prior to my promotion to Chief. And yes it was one of the most difficult and emotional issues that I ever had to contend with.

For years it impacted our relationship and on some level the matter divided the agency between those who thought I was doing the right thing and those that thought I had become insensitive and too political. I learned some painful lessons during that time and realized that often in leadership you sit in a lonely chair. I have now taken the experience and incorporated it into ongoing reinforcement within my agency and the outside officers that I instruct on community expectations and the value of understanding the Social Contract as a cornerstone of our democratic and representative government.

Q. In 2003, you received a prestigious invitation to attend the FBI National Academy, an elite police-training course. How’d you get the nod? Are the feds, now of junk science and systematically worthless labs fame, really the crime-fighting geniuses they’re cracked up to be? Were you able to put your newfound contacts to good use? You’re an advocate of local accountability for police forces – is there something vaguely sinister about getting the best and brightest from the nation’s PDs to fall in line behind the FBI’s standard? And was it as grueling as they say? Did you run, and survive, the Yellow Brick Road?

A. Every few years, the administration within the Delaware Police Department would pick and submit for consideration a member of the agency whom they considered a possible choice for future promotion or appointment for greater responsibility. I made it known that I had a desire to pursue promotion and that I wanted to be as prepared as possible if and when the opportunity presented itself. I was honored when I passed the vetting process. Considering that each previous candidate from our department had risen to the position of Chief, I presumed the training was of value.

I was not disappointed in my FBINA experience. It remains a career highlight and one of a handful of associations within my life that has had significant ongoing professional impact. The course work was challenging, requiring responsible self-initiated study coupled with some of the best instructors I have ever sat under. But just as important was the opportunity to sit either around the dinner table or in work groups with law enforcement officers from all over the world reviewing a host of ideas as they related to how to improve policing. I found that most participants were responsible, successful officers who cared deeply about the communities they served and the profession they had chosen. I also gained a new confidence that my ideas about law enforcement were relevant in any setting.

I have no false perceptions about our federal partners. On the contrary, the ongoing exposure to them and most other agencies revealed men and women of genuine humility that wanted to learn from each other for the sake of improving their capabilities and improving their communities. As for the networking; to be able to connect with FBINA graduates around the world, especially when we are exposed to borderless crimes, is an invaluable resource. On my first family trip to Paris, it was an FBINA grad that picked us up at the airport and later treated us with a visit and meal with his own family; a cultural exchange that has given us a greater appreciation for European history, the French revolution and our current partners in the ongoing war on terrorism.

My Yellow Brick Road maintains a prominent position within my office. A daily reminder of this lasting experience.

Q. One year later, and 23 years after you signed on as a patrolman, you became Chief of the Delaware PD. You must’ve had mad skillz to secure that promotion, because if seniority and experience were enough, everyone would get a turn at the tiller. How’d you emerge as the candidate of choice? And once you were in charge, what were the changes, big and small, you made to the department? What were your goals in making them? Were any in fact necessary, or was everything going swimmingly in ’04? Did the rank-and-file resist your tyranny, or did they welcome you as chief with open arms?

A. When I look back on my career, I had more losses than victories as it pertained to promotional opportunities. It just so happens that through perseverance and timing, the promotions eventually added up to the appointment as Chief of Police. The selection process included a national search and an assessment of the final candidates; a process I scored highest on, but still didn’t assure me of the promotion. The City Manager had the final decision in the appointment and one of the other candidates was also an internal competitor of higher rank.

Fresh off my stint at the FBINA I did have a quiet confidence that after sitting in classes with law enforcement executives from around the world, I felt just as capable as many of my national and international peers. I also had confronted career disappointment in the past and felt like it prepared me to handle the very public process of the Chief’s appointment. Throughout the process I stressed two things that I believe separated me from the competitors; 1) I had scored the highest on the assessment 2) No other candidate could assert that they had supervised every division within our agency. And personally, my theology provided a peace that whatever was to ultimately occur would serve a greater purpose in my life and for the greater community. Frankly this belief and mindset eliminated a lot of the internal pressure and enabled me to perform transparently with greater confidence.

Eventually, as the process wore on, I asked the City Manager directly what else he needed to make his decision. He reminded me that the Chief of Police hire is the most significant appointment a City Manger makes. It carries the greatest liability and sets the tone for the community. Eventually, he offered me the opportunity and although my father had been deceased for a few years, my first thought was “I wish I could experience this with my Dad.”

There are advantages and disadvantages in getting promoted within your own agency. The advantage is that you know the agency and they know you. The disadvantage is that you know the agency and they know you. Although I inherited a good police department, the City Manager assured me he did not want a “caretaker” but a problem solver. The other internal candidate told me early on that he could not work for me and that probably became the first issue to contend with. Eventually he would retire and move on, and that issue resolved itself.

Over the course of the next eight years, I focused on consolidation of services, dealing with the economic downturn, developing succession and creating an environment where we wanted to focus on problem solving policing not just the traditional responses.

Q. Eight years in, your tenure as Delaware chief came to an abrupt end when then-Sheriff of Delaware County, Walter “Magnum” Davis, agreed to resign his post and never again hold office in exchange for a deferred prosecution agreement. (He’d gotten caught spending county money on an out-of-state trip with an alleged mistress.) And his predecessor as sheriff lost his job after he pleaded guilty to two misdemeanors. You were tapped to serve as interim sheriff until the November elections.

With about 200 employees, the Delaware County Sheriff’s Office was a bigger enterprise than you’d ever run before. Not only that, but it was mired in scandal, and it was your job to turn the ship around. Were you at all apprehensive about leaving your job as chief (and, by that time, President of the Ohio Association of Chiefs of Police) behind for a challenge like that? What did you have to do to clean up the department? How deep did the rot go? Did the actions of your predecessors reflect on the rank-and-file, or were they ashamed and embarrassed by what had been going on? Was it difficult to win their trust? At least you didn’t have to worry about losing the election, right?

A. I was very comfortable as the Chief of Police of the county seat. I was enjoying the opportunities and challenges provided as the President of the Ohio Association of Chiefs of Police and advocating at the state level for Ohio’s law enforcement agencies. I had no political aspirations at the time, but I was also disappointed in seeing how poorly the Delaware County Sheriff’s Office had been managed. I was partnering throughout the state on initiatives for policing, but in our own county the Sheriff refused to work with local law enforcement to share and improve services countywide. It was exasperating, because I knew the potential that could be leveraged by working with the other agencies in Delaware County.

I had little time to consider pursuing the appointment and subsequent election to Sheriff. I would have to retire, resign as president of the OACP, take an initial salary cut and tackle the problems left behind by the previous Sheriff. Exiting church one morning, during the consideration stage, my wife looked at me and could probably sense how I was laboring over the decision. She sealed the deal when she stated simply, “If you think you can make a difference I’ll support you.” It was all the affirmation I needed. Some said after that I left the frying pan for the fire. I was not in a frying pan…I had been sitting in a very comfortable chair when I jumped.

I really thought after 32 years my reputation would precede me at the Sheriff’s Office. Although I had worked with many members of the Office, I soon learned that I had to start all over gaining the trust and confidence of most co-workers. Frankly, I will confess that I thought too highly of my leadership ability and presumed in a year we would be recognized as one of the best Offices in the state. It has taken four years for many of my co-workers to believe I am who I say I am. But I also believe that they had been so poorly lead by the previous Sheriff that trust in the position had been significantly eroded.

I quickly learned something else about myself. I had 32 years at the previous agency and had a deep abiding affection for that department and my co-workers. Within a few months, that same sentiment was realized in my own life for this “new” Office. It confirmed for me how much I care about this profession, the men and women who serve and the community we work in.

Q. As sheriff, you’ve signed off on hundreds of SWAT raids on the homes of suspected drug offenders. You’ve defended the practice before, notably in a debate with Radley Balko; you said the routine use of SWAT teams works to people’s benefit because it helps keep cops safe, who in turn protect the public.

Setting aside the property and psychological damage, the loss of community goodwill, the inevitability of the shot dog, the potentially horrible mistakes like raiding the wrong house or dropping a flash-bang in a baby’s crib: What kind of “protection” is it when the people who interact with cops are forced to bear all of the risk? When it’s the cops who, between their aggression and their fear, generate most of the danger? Are you, perhaps, prioritizing law enforcement over protecting people?

In addition to criminal priors, you’ve said you factor whether someone owns a gun into your decision to send a SWAT team. Is it right to penalize the legally innocent people on whom you serve warrants for exercising their constitutional rights? Would other metrics be cool? Statistically, African-Americans are responsible for an outsize share of violent crime. Are black suspects deemed more deserving of a visit from the guys with BearCats? Where do you draw the line?

A. I have respect for Radley Balko’s research and observations. I provided copies of his book to all the law enforcement executives in the county. I also believe that a piece of equipment doesn’t necessarily equate to a militarization of police. It’s policies, practices and leadership that define how we do our job in this profession. We’ve given serious consideration to how we utilize our multi-agency tactical unit. First and foremost, we emphasize training and industry best practices. There are far too many “SWAT” teams in place that probably don’t have the oversight needed to make sure they are responding to community expectations.

One of the first things I did when I became Sheriff was create an Executive Board that oversees all of our countywide joint work groups. Although the sitting and voting members remain law enforcement executives, we have routinely invited the city managers and township managers to the table. We possess a working group of law enforcement executives that include Chiefs who do nationwide agency assessments and are forward-thinking problem solvers. We also have representatives from the County Prosecutor’s Office at the table reviewing our policies and procedures. Much of our work is then returned to local agencies and shared with local citizen academy groups.

I currently employ three analysts in my Office. The Administrative Analysts assigned to the countywide work groups is tasked with measuring and looking for metrics that determine our effectiveness. By and large, in our county the Tactical unit is deployed to respond to barricade and hostage situations. I’m responsible not only for the safety of our citizens, but the men and women I direct. The use of special tools and equipment more often than not is used to minimize exposure of risks to all the parties involved.

Q. Then there’s asset forfeiture. Where do you stand? Indispensable law-enforcement tool, needed to keep kingpins from gifting drug money to their girlfriends? Tyrannical way to expropriate the innocent? Convenient way to plug a hole in the budget? What’s your office’s asset forfeiture program look like? How much are you confiscating? Do you cooperate with the feds?

In June, Ohio’s House passed HB 347, which, if enacted into law, would keep police from confiscating unconvicted people’s stuff and restrict access to the federal Equitable Sharing Program. (It’s in limbo in the Senate.) Do you support it? Surely not? What would your friends from the National Academy say?

A. In regards to seized assets and the value they have impacting the struggle to control the distribution of illegal drugs, I don’t believe you throw the baby out with the bathwater. In Ohio, I do not believe law enforcement has abused the asset seizure laws. There are enough safeguards in place to protect the truly innocent.

I don’t want to be a part of separating citizens from their lawfully gained property. It is a fundamental right in this country. But I don’t have any problem separating drug money from dealers who exploit peoples’ addiction for their financial gain. We recently converted $27,000 of locally seized drug cash to assist a shelter for victims of domestic violence, and I routinely look for ways to promote substantive educational programs with lawfully seized assets from drug dealers. Knee-jerk reactions by the legislature rarely provide substantive solutions, but they do sound good in an election cycle.

Q. Finally, there’s discipline. You’ve proven on several occasions that you’re unafraid to drop the hammer when cops misbehave. At the same time, Ohio has its share of police unions and loudmouth union reps. Do the Steve Loomises of the City of Delaware make your life hard? What about the voting public? Nationwide, police departments are having a bit of a PR problem. Has the storm of anti-cop outrage passed you by, and if so, how’d you manage it?

A. I said early on that we will train those that don’t know and discipline those that don’t care. Fortunately, most care and dare deeply. But I have no toleration for those who will tarnish this profession. Far too many serve for all the right reasons, and when one misrepresents us, they have eroded some of the community trust that has been afforded for us to do our duty.

I grew up the son of a union laborer who spent 42 years working in the same factory. I heard around the dinner table my father discuss some of the protections the union afforded and how they helped leverage raises in an industry driven by the bottom dollar. When I started policing, we had no union and frankly very little say in compensation. I loved the job but as I desired a home and opportunities for my family I realized that early salary comparables would probably resign us to a pretty moderate lifestyle. There were genuine discussions around the table between my wife and I about career options. Pursue the possible salaries associated with the private sector or maintain a life in public service. She was a schoolteacher and we both very much loved our jobs. But in the early 80’s, when college graduates were recommended for the policing profession, we often looked at our peers and wondered about our future.

The Union’s helped bring salaries up in the 80’s and I believe the realized benefit to that was greater retention, a more competitive labor pool and greater expectation from the community to earn that salary. But we have entered a new normal after the economic downturn of 2008, and public servants need to be very careful not to become greedy. There is a delicate balance between fair compensation and pricing yourself out of the market or alienating the constituents you serve. Just as importantly, we all owe it to the communities we serve to work diligently for them and manage our budgets with great stewardships.

The relationship between management and the union can be successful if they genuinely share the same goals; to provide quality law enforcement to the community they serve. Frustration develops when management fails to listen to the concerns of front line officers and when the union overreaches in dictating policies that inhibit best practices or becomes unreasonable in protecting officer’s behavior that erodes community trust or expectation.

I don’t believe the current arbitration process is most effective. I have a hard time with a third-party arbitrator who has no ties to the community dictating policies and then riding out of town, leaving behind the law enforcement executive to deal with the fall out. But by and large, when parties are reasonable and emotions and personal agendas are set aside, management and the union can coexist. Like most conflicts in life, it comes down to the personal relationship and trust.

Q. A couple weeks ago, you won re-election to another four-year term. (Congratulations!) What’s in your future? Got any big plans for the sheriff’s office? How about running for higher office, in 2020 or beyond? Or is a lifetime of herding cops enough for anyone, and you can’t wait to get out of government? What’s in the cards?

A. I recently reorganized the Office into four divisions, all supervised by Directors that have been tasked to focus on employee development, especially leadership and accountability. What you don’t audit you accept. We want to look even closer at how and why we do what we do. My staff knows my desire to have an internationally accredited operation and be known as one of the finest Sheriffs Offices in the country.

I’m not satisfied yet and complacency is not a part of my psychological makeup. Law enforcement around this country has faced the most turbulent and difficult challenges it has ever confronted in these last two years. I want to see it through and continue to advocate for and support this great profession. I’ve spent more time reviewing the Federalist Papers and Jean-Jacques Rousseau’s Social Contract essays in recent years. I do believe quality law enforcement is a partnership with the community and an honorable profession that can greatly enhance constitutional freedoms and quality of life on the local level.

I feel like I still have a lot to contribute on the topic of leadership and law enforcement. I make it a practice to focus on the job at hand and the people have elected me to be Sheriff of Delaware County.  I am still humbled and honored that God would allow me this privilege and the people of this great county have provided for me the opportunity. I can’t talk about leadership and its value in tough times and walk away yet. We’ve still got work to do. And frankly it’s still better than working in the meat packing plant.

 

Cross: Dara Lind, Keeping Criminal & Immigration Law Honest At Vox

November 16, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Vox “explainerd” on immigration and criminal justice, Dara Lind.

Q. You’re a Yalie, seven years out of college, and an anthropology major to boot. Were you one of those grubby forensic-anthropology types, slumming it in the mud, or were you drawn to the cerebral, cultural side of things? And what are you doing slumming it as a crimlaw journalist? Ever consider going to law school? Did you have an interest in criminal law at Yale? Where did it come from?

A. It’s a matter of family lore that, the first time my father held me (his firstborn) in his arms, he told me that I could be anything I wanted to be in life — but please, God, don’t be a lawyer. And like any good millennial, I have a codependent relationship with my parents 😀

JK. This is the real reason that story matters: my father had earlier in life left the radio industry to get a very fancy law degree, and then spent a few years in New York entertainment law, before realizing that the fact that he “oughta be a lawyer” (because he was good at writing, public speaking, and arguing) mattered less than the fact that he was freaking miserable practicing law. So when I turned out to be especially good at writing, public speaking, and arguing, I knew better than to give in to the “you oughta be” line.

It would be tremendously helpful to me if I had a legal credential. I’d like JD degrees to be subject to the rules for chair tests in high-school band: I’m sure I could find people who would lose their diplomas to me in a one-on-one Law Challenge. As it is, I know myself well enough to know I would be a terrible law student. I simply do not care about easements, and I’m not very good at doing the reading on subjects I don’t care about.

My legal education has instead come through legal anthropology, and then through the areas of policy (immigration and criminal justice) that tend to be built most firmly on law. My anthropology degree was the result of taking a bunch of classes in social theory (I essentially majored in Bourdieu) and then writing papers on immigration policy in the United States. I’m kind of a failure as a poststructuralist; I believe firmly that power works through subtle and symbolic ways, but simply as a matter of triage I tend to care more about blindingly obvious expressions of power like deportation and incarceration.

I wrote my senior thesis on immigration court after spending a summer watching proceedings in Minnesota; I saw about a dozen people get deportation orders in two hours on my first day of observation, and have never felt more inclined to smash the state in my life.

Watching a trial court in an administrative-law system is a really good object lesson in how lives get abstracted to fact patterns, and in discretion as the chief way to exercise power, because immigration judges had (or at least were willing to exercise) so little of it. Attorneys and defendants literally got a handout listing three hypothetical fact patterns, two of which wouldn’t qualify for relief and one of which would; the best way to get relief was to show how identical the facts of your case were to the third case on the handout.

That’s very different from the legal education that you get from actually studying law, which tends to be about the transmutation of facts into law and the flexibility and power of argument within a case.

Q. You were a well-known student activist at Yale; your cause célèbre was immigration reform. Would it be indelicate to ask where the interest came from? With so many worthy causes to choose from, why this one? What was it like, advocating reform in the dying days of the Bush administration, when it still seemed like the next President might turn things around? Did you plan on parleying student activism into a career?

A. I’m pretty sure the real student activists thought I was a crypto-Nazi, or at least a neoliberal sellout. I lived with members of the Party of the Right and used words like “discourse” a lot. My activism, to the extent that it existed, was a function of my interest in immigration.

The summer after my freshman year, I was an intern with an education nonprofit in Louisville working on Hispanic outreach programs. At one point I was analyzing a bunch of grant applications, and pretty much every district said the same thing: they couldn’t build a relationship with the parents of a student if the parents were afraid to come to school, because school officials were part of the government and the government might deport them. It immediately became clear to me that immigration status is (as the anthropologists put it) a “master status”: something you can’t fix other problems without addressing first.

When, the next summer, the city of New Haven passed a municipal ID program — and then the next day ICE arrested a few dozen immigrants in an early morning raid on a Latino neighborhood — it was too obvious a case of retaliation not to be galvanizing. At the time, there were serious worries that the lists of municipal ID holders would be FOIAable by anti-immigrant groups, so there was a lot of interest in getting as many people as possible to sign up. I helped the city of New Haven get in touch with student groups and set up a week of open signups on campus: hardly a notorious activism career.

I definitely figured that my senior thesis was going to be a historical artifact, because I figured that at the very least the Obama administration would fix the immigration-court backlog. But looking forward to the Trump administration, I’m glad to have some understanding of what it looks like when the federal government wants everyone to know how tough it is on immigration enforcement.

Q. After you graduated, you spent a year guest blogging at several progressive outlets, including The American Prospect, ThinkProgress and the now-defunct Firedoglake. We keep getting told that the collaborative-blog model exemplified by the likes of Vox and HuffPo is the future of journalism. Back then, did blogging even pay the bills?

Was it a temporary gig while you looked for more stable employment? A good alternative to the unpaid-internship circuit? Or was it exactly what you wanted to do? Were the soapboxes you were given big enough? How about reader engagement? Does a 23-year-old have the ability to ask deep, thoughtful questions? Answer them?

A. To the contrary, blogging nearly cost me steady employment. I was trying to juggle it with a full-time job in advocacy, because I was too annoyed with the state of immigration reporting in 2010 (which generally showed less policy literacy than I had as a 22-year-old) to turn down opportunities to do it better. I had asked for my office to draft some sort of “social media policy” that would establish what I could do on the side. I ultimately figured it was better to beg forgiveness than ask permission.

I thought I was flying under the radar until I wrote a blog post pointing out some Spanish/English doubletalk from a politician my employer was still trying to stay on good terms with. I got…a talking-to. I don’t know how close I actually was to losing my job, but it’s the only time in my career I thought that’s where the conversation was going.

At one point, I tried to transition to journalism full-time, but the outlet I’d decided I wanted to work for did not agree. I realized I was either going to have to develop some actual reporting chops or just give it up – and that I couldn’t do the former while doing a day job I cared about. So I picked the latter.

Q. You spent nearly a year and a half as the Senior Policy Associate for America’s Voice, the immigration-reform advocacy group. As with most organizations of its kind, the official titles aren’t exactly descriptive, so we’re going to come right out and ask: what did you do there? By then, you were an established writer– did they hire you for that reason? For your immigration chops? Were you looking to become a policy wonk, a lobbyist? You set up shop in DC, the progressive’s mecca. Were you fully prepared to be thrust into that arena? Ever wish you’d stayed in Connecticut?

A. Remember that I graduated into the maw of the Great Recession. DC was the only place I could possibly get hired (especially because my only internship experience was in the nonprofit sector).

I spent a miserable summer in Kansas City after graduation, which allowed me to save up enough money to move to DC without employment, but also reminded me that I’d gotten out of the Midwest because I was sick of people mocking me for using big words, so I happily fled back to the East Coast where all my friends were.

(A few months after moving to DC I made the brilliant mistake of falling in love with someone else who had escaped the Midwest and worked in an industry that only existed in DC, so my fate got sealed pretty quickly.)

I actually started at America’s Voice in October 2009 — titles are so fungible that I had 3 different titles over my time there, which explains the confusion on my résumé. I was told that the job might not last more than a year, because the organization planned to pass comprehensive immigration reform in 2010 and then dissolve. I was there for five years.

I got hired because I cared about immigration and could write a press release quickly (the time I spent doing communications for extracurricular groups at Yale was much more relevant to my career than my degree was). I spent the next several months writing talking points for police chiefs and faith leaders, because of course a 21-year-old nice Jewish girl is immensely qualified to tell black pastors how to talk about immigrants.

I realized pretty quickly I wasn’t cut out for communications. When I got on calls with think-tankers to develop talking points, they were the ones stressing their topline message while I tried to pick apart their methodology. So over time, I ended up taking on more political and policy tasks.

I live-tweeted House hearings (and got a lot of stink-eye from congresspeople who assumed, I guess, I was just sitting in the hearing room texting the whole time). I parsed the shit out of offhand comments made on immigration by random back-benchers in town-hall meetings, trying to reverse-engineer, from talking points, what sort of policy compromise they’d be able to accept without being accused of flip-flopping. I did a bunch of Spanish-to-English translation of work under other people’s bylines, which means I can’t tell you what it was, but believe me, I’m really good at it.

Oh yeah, and one time I helped deliver a couple hundred cantaloupes to Republicans in Congress (after Steve King famously said that deferred-action recipients were all drug smugglers with “calves like cantaloupes”). The success of that stunt made us cocky enough to follow up with a dozen frozen turkeys before Thanksgiving, which resulted in us having to pull an “Am I being detained?” when cornered in a side room by a Capitol Police officer and more or less chased out of a House office building. I was a little relieved when I got my Hill press pass for Vox; I wasn’t sure my name wasn’t on a blacklist somewhere.

Q. The big federal immigration story in 2013 was S.744, the Senate reform bill sponsored by Chuck Schumer and his “Gang of Eight” (including Marco Rubio, a fact that would come back to bite him in the ass in this year’s primaries). You covered it extensively while you were at America’s Voice. Was it everything you wanted from a piece of immigration-reform legislation? Did it compromise too extensively? Was it entirely off the mark? Though the Senate passed it, it died an ignominious death when the House declined to take it up. Did the bill have a noteworthy legacy? Were you, perhaps, startled by subsequent Republican support for the E-Verify system?

A. If anything I was surprised at how little of a push got made on E-Verify once the GOP took back both chambers, given that the House had tried to pass mandatory E-Verify in 2011 — and while the system is still flawed, it appears to be better now than it was then.

Comprehensive immigration reform was never a strategy everyone loved, obviously. But it was one way of solving the fundamental dilemma of immigration policy, as it’s existed since 2009 or so. There are 11 million unauthorized immigrants in the US; most people don’t want all of them deported. At the same time, the US/Mexico border is fairly secure by historical standards, but calls to “secure the border” tend to drown out arguments for further changes to law — and no other change to immigration law is actually popular enough among both politicians and the public to push through the border panic. So how do you reassure people that the border is secure, and move forward with other reforms?

In 2009 and 2010, President Obama tried to answer this by stepping up deportations; in S744, as it ultimately got passed by the Senate, it was done by focusing on inputs (number of Border Patrol agents, amount of money spent).

The problem is that symbolic politics are rarely just symbolic, so the real question is how much real suffering you’re willing to cause in the name of catering to people’s feels. The S744 “border surge” made it impossible for feels of border insecurity to derail the rest of the bill, but also would have caused real harm by further militarizing border communities.

(Arguably, if you want to make people feel safer about the border without doing anything, “build a wall” is probably the way to go — you build it, you say “Look, it’s built!”, you move on with legalizing people who are already here. But the incoming administration is not as committed to building the wall as it is to deporting people, so.)

By the time S744 was drafted, the framework of “comprehensive immigration reform” had remained unchanged for several years, which made it a little overbaked — it was impossible to make individual legislators feel like they’d won meaningful concessions, and people don’t fight for things they’re not invested in. (A less kind way to put this: members of Congress have never seen an issue of principle they can’t reduce to an issue of ego.)

At this point, the coalition that made “comprehensive immigration reform” politically appealing has been blown to smithereens — you pretty clearly can’t persuade Republicans in 2016 to get on board with expanding immigration just because business likes it. Arguably, it was blown to smithereens the minute the law passed. The organization I worked for had mugs made with some of the best provisions of the bill, as a memento for some of the people who’d worked on it; weeks after they were delivered to the office, we still had a whole box of mugs, because none of the Republicans we were hoping to give mugs to were returning our calls.

The next time the opportunity comes up for Congress to pass a big change to immigration law, the politics are going to be very different, so S744 won’t make very much sense as a model. Whether that’s a good thing depends on what happens instead.

Q. In lieu of legislative action on immigration, President Obama decided to take action himself. At a cabinet meeting in early 2014, Obama declared that he had a pen and a phone and was going to use them. He originally created DACA – his Deferred Action on Childhood Arrivals policy – by executive action in 2012, following yet another Congressional refusal to pass the DREAM Act. His November, 2014 changes to DACA amounted to an enormous deportation deferral, potentially covering nearly half of the nation’s illegal immigrants.

Is it constitutional, let alone wise, for the President to usurp Congress’ role by executive fiat? Given that Donald Trump is poised to wield the same power Obama did, he may very well use it to revoke Obama’s orders – and pass some of his own that’ll take the nation in a very different, un-progressive direction. At Vox, you’ve been a notable cheerleader for DACA. Has anything changed?

A. The executive branch has a ton of statutory authority on immigration enforcement; Donald Trump would have had just as much ability to deport every unauthorized immigrant in the US had he been elected in 2008 as he does now. The limiting factor is resources. Nothing changed in immigration law between 2001 and 2007 to make deportations easier, but post-9/11 budgeting did, and deportations more than doubled as a result.

At the same time, prosecutorial discretion is an uncontroversial legal principle. With the exception of traffic violations in the age of red-light cameras, perfect enforcement of violations of the law is always impossible, and the question facing prosecutors is whether to engage in deliberate triage or fill up dockets opportunistically. When you don’t have the resources to deport everyone, but you have the resources to deport a lot of people, how you choose which ones to deport becomes super relevant.

The story of the Obama administration’s immigration policy is, in large part, a battle between labor and management over where in an agency prosecutorial discretion resides. The White House felt that agency management had the power to dictate where resources go; the agents feel they’re being deprived of their ability to make case-by-case determinations.

When I worked in advocacy, we’d occasionally get word that a college student, or the mother of a toddler, had been detained by ICE, even though the Obama administration was going around saying they weren’t deporting students or parents. We’d mobilize activists to send faxes and phone calls to ICE headquarters in DC, in the hopes that, if the case became enough of a headache, someone in DC would make an angry phone call to, say, the Detroit field office, telling them to drop the case. That’s obviously not an ideal way to implement policy!

The Obama administration ultimately decided that the only way to guarantee that management could dictate prosecutorial priorities was to allow immigrants to apply for protection proactively, taking the decision out of ICE agents’ hands.

When the deferred-action programs got challenged in 2014, the administration found itself arguing that Citizenship and Immigration Services did still have discretion in looking over applications, as a way to claim that the deferred-action program wasn’t a regulation (and therefore didn’t need to go through the notice-and-comment process). But though I’ve heard about cases where people got rejected even though they met all the qualifications on paper, the government never really made the case for that in court. As far as I’m concerned, the constitutional weakness is probably there: not in what the administration did, but how.

What I’ve never understood was how the expansion of deferred action in 2014 was unconstitutional, but the original Deferred Action for Childhood Arrivals program in 2012 — which, if anything, was much more clearly analogous to a bill Congress had just failed to pass, and which the states in the US v. Texas case were using to argue the new program would be implemented unconstitutionally — was kosher. The Fifth Circuit totally punted on that, and I would have loved to see whether the Supreme Court was willing to follow the states’ argument to its logical conclusion.

Q. And that brings us directly to our next question – in March, 2014, you left America’s Voice to sign on with Vox. How come? Missed blogging? The thrill of seeing your name in print, or pixels perhaps? (Given that you stayed, it can’t have been that you were sick of Washington.) At the time, Ezra Klein and Matt Yglesias had just founded the site; you were part of the original team. What was so new, so revolutionary about it? What made you want to sign on? Was its emphasis on liberal politics part of the game plan from the start, or was it the organic result of the people writing for it? Did working for Vox make you rethink your duties as a journalist, and if so, what did you conclude?

A. I spent about three years trying to figure out how I could forge a career in policy without going either to the Hill (too outspoken) or to grad school (too poor, bad at delayed gratification). But by the beginning of 2014, I was sick of people assuming that, because I was a 25-year-old woman, I didn’t know exactly what information was and was not publicly available about deportations of “criminal aliens” (something I’d been following as a wonk side project for years). So I figured I’d go to grad school, get the credential, maybe grow a few gray hairs for gravitas.

When Ezra and company left the Washington Post to start a new site, my partner tried to get me to apply, because it was such an obvious fit for me. “Explaining complicated systems to interested people” was my career mission statement years before I went to a site that explained the news, and while the state of immigration reporting in 2014 was better than it had been in 2010, it still wasn’t being taken seriously enough as a policy issue for my liking.

But it had taken me three years to decide what I wanted to do next with my life, and I did not want to reconsider again. I told my partner I’d offer to freelance for the new site as a grad student. Then Ezra himself emailed me with a request to talk.

Ultimately, he persuaded me that a high-profile byline would give me the same social capital as a graduate degree, and that “instead of you paying them, we’d be paying you.” (Fact check, Mostly True. Given how much all of us worked during the first year of the site and what we were getting paid, I have no idea what our hourly wages came out to and I don’t particularly want to run the calculations to check.)

Because I was coming out of advocacy, my editors were initially concerned about a liberal bias in my reporting. Vox has never tried to be liberal; to the extent that our writers tend that way, it is, as you say, the result of organic network effects. Personally — and everything I say about my site should be taken as me speaking only for myself — I would love it if we had more ideological diversity.

What Vox is, though, is positivist journalism: here are the consequences of these choices; here is the choice that does the most to accomplish the stated goals. The problem is that not everyone’s goals are the same; to paraphrase something I heard about game theory once, what does a utilitarian do with people for whom “utility” isn’t happiness but Godliness? And while positivist journalism is better built for a lot of things (like assessing truth claims) than traditional he-said-she-said journalism, it isn’t built for debates that are built on irreconcilable values.

The solution to this, as far as I’m concerned, is to be honest about what the values of all participants are. Done right, this is actually better than he-said-she-said journalism, because it allows you to ignore incorrect factual smokescreens and grab onto the values arguments that aren’t being voiced.

When I write about “self-deportation,” for example, I always try to point out that stepped-up enforcement is going to make the lives of unauthorized immigrants harder, and that for supporters of self-deportation that is the point — they feel the cost of violating immigration law should be as high as possible.

This might appear biased because, to people who don’t agree with that principle, the logic seems cruel. It might seem less biased to assume that people believe in more immigration enforcement because, say, they’re primarily concerned about welfare use. But it’s not the job of journalists to put people’s positions in the terms we find most palatable; it’s our job to present the values people themselves find most important.

Q. Vox is where you started spreading your wings as a crimlaw journalist; in the past, your focus was more on social issues. Why did you decide to make the change? Given that you’re neither a lawyer nor someone who, like Radley Balko, has spent many years on the beat, how have you’ve managed to make a success of it? Crimlaw journalism is one of those areas where emotions and political bias can get in the way of the facts; have you managed to avoid those pitfalls? Is there any pressure at Vox, like Slate, that encourages a less objective viewpoint? Given the right circumstances, can neutral journalism be more of a hindrance than a help? What’s the right way to look at a crimlaw issue – complex and unsatisfying, or simple, easily digestible?

A. I am going to send this to all the immigration lawyers I know and tell them that a crimlaw blogger called their field a “social issue.” I imagine the result will look something like this.

old-cartoon-fight-animation-gif

I think of both criminal justice and immigration less as social issues than civil issues; they both involve complicated apparatuses of law and policy  that have real and discrete impacts on people’s lives, but the public debate about them often pretends that all policy is just an expression of normative or “culture war” values. “Tough on crime” is a slogan without policy meaning that nonetheless has policy consequences; so is “end mass incarceration.”

If I know anything at all about criminal justice, it’s because of my partner, who is always happy to discuss collateral consequences over dinner. (We are fun at parties.)

Since he, like me, is also a wonk who is not a lawyer, my understanding of criminal law is pretty purely reflected through policy; I think of myself as a criminal justice journalist rather than a legal journalist. That probably gives me a bias — not toward emotions, but toward consequences – that I know can run counter to the logic of law.

There’s a tendency in criminal-justice and legal journalism to apply existing frames to new cases; that’s what determines which cases are newsworthy. (Consider the median coverage a police shooting of an unarmed black man gets now versus 2012.) Those existing frames are often built by politics: poor police-community relations and implicit bias in policing; rape and rape culture; overcriminalization. This can make for some terrible journalism. It is what leads journalists upset with the outcome of a case to say the defendant “got off on a technicality,” which is a phrase I promise never to use on pain of forfeiting my paycheck to the NACDL.

But this is not an inevitable consequence of talking about law in terms that are more lay-friendly than the terms in which lawyers talk about them.

There’s a difference between ambiguity and ambiguousness. Most things are complex and unsatisfying, but that doesn’t mean that you can’t identify particular axes of disagreement and lay those out, or explain how the same dilemma, played out over and over again, can create clear systemic problems. The question of “should defendant X take a plea bargain?” is usually a lot harder to answer than the question of “is the fact that 95% of defendants take plea bargains good or bad for the system?”

Laypeople need to have some understanding of how law works (inter alia, they’re the ones who have to serve on juries and elect prosecutors). And if journalists aren’t actually making it easier for laypeople to understand than an expert would, there is no point to journalism.

Q. Let’s be blunt: Vox has come in for its share of criticism. A recent Current Affairs op-ed by Nathan J. Robinson attacked your outlet (and its writers) not just for factual errors and style, but for an alleged tendency to see itself as the arbiter of what’s true and correct when there’s little basis to support that’s the case. Any truth to that? Are you entitled, snot-nosed kids condescending to the rest of us, or do Robinson and his ilk not get what you’re up to? Vox’s self-proclaimed goal isn’t to provide facts, but to process those facts, come to the right conclusions and make them easily digestible for its readership. Is it possible that nuance gets lost along the way? Is humility important? Is it a help or a liability that you guys are so damn young?

A. Stentorian lecturing is not actually any more appealing when it’s being done by an older person, though! I have spent enough time listening to Boomers to know this.

I think of condescension as treating readers as if they’re not smart. A lot of “news” writing for women, in particular, appears to be written for someone who doesn’t actually care about global affairs but has to make small talk with the boss in the office elevator. Blech. Spare me.

Vox assumes readers are smart, but not necessarily perfectly informed — i.e., that those of us who get paid to know these things for a living do in fact know more than people doing other things with their lives. (That makes it super-incumbent on us to be right. This is the most important use of humility for a journalist: making you careful enough before publication that by the time you publish, you’re damn sure everything’s right. Whenever I get something wrong, it’s because I’ve gotten too cocky to check, and it sucks.)

Depending on how you look at it, that’s either translation or arbitrage. Either way, it obligates the journalist to write in a way that maximizes ease of access — to inform as many people as want to be informed.

In my experience, clarity, conciseness, and informativeness are one of those “pick two” situations. I tend to pick the first and the third. A ramp might have to extend for longer than a set of stairs in order to reach the same height, but not everyone can manage the stairs and everyone can manage the ramp.

Clarity and ease of access should not be the goal of all writing. It would be laughable to judge poetry that way, for example, and I think that narrative journalism can accomplish things explanatory journalism can’t. But if you’re committed to expository writing — which is, in theory, what most journalism is — ease of access has to be a core commitment.

As a middle-schooler, I was really proud of myself when I completed a written assignment and the Microsoft Works Flesch-Kincaid analysis gave my work a score of 11.7 or whatever. I thought it meant I was sophisticated. It really just meant I was using too many semicolons and relative clauses to be readable.

Of course, that Current Affairs article, and most critiques of my site, are generally a stalking horse for ideological disagreement (with “Vox ideology” defined as “what Ezra, Matt, and Dylan Matthews think”). I personally am much less concerned with whether I’m manipulating my readers into the “right conclusions” in my writing than I am with whether I can persuade my readers when I suspect my conclusions don’t mirror their instincts.

Journalistic outlets in 2016, and this is not just a Vox problem by any means, have a huge incentive to pander to the prejudices of the existing audience. This creates a vicious cycle: the content you publish attracts readers of a certain stripe, who reward content that appeals to them, which draws in more of the same kind of readers. I worry much more about that than I worry about the prejudices of the people doing the work.

This isn’t a problem that we can fix on the producer end. I want people to think a lot harder about what ethical consumerism looks like in an attention economy. Understand that when you spend time consuming content you don’t like, you’re playing yourself. When you don’t like everything a site does, make a point of seeking out and sharing the stuff you like. And never, ever hatelink.

Q. You’re just at the outset of your career, and you’ve got a long, promising future ahead of you. So it only seems fitting that we close by taking a quick look at the past. Right now, college campuses are in turmoil, with students clamoring that they and their emotional traumas aren’t being taken seriously by administrators and staff. Exactly one year ago, you wrote a notable piece on just that subject, drawing on your own experiences at Yale.

Are campus protests over political slogans written in chalk and offensive Halloween costumes likely to be effective in the long run? Have today’s student activists lost sight of the bigger goals of progressive politics by choosing to focus on themselves and their needs? Are they unlike you and your generation? Do you have any advice for them? And given that they, along with the rest of us, are facing four years of President Trump, what should they be focusing on now?

A. I don’t think that this wave of student activism is particularly strategic. But I don’t know that it could be. Some of these students (Nathan Heller’s feature about Oberlin in the New Yorker brought this into focus for me) are rejecting the notion of college as a place to find oneself, which is at least a half-century old, and as a lever of upward mobility, which is even older than that. That’s a really radical critique, and radical critiques don’t tend to lend themselves well to strategy.

It’s going to be really interesting to see how progressive movements react to the Trump administration. But I think that campus activism circa 2015 was maybe not terrible tactical practice for the age of Trump, because the feelings of unsafeness that were at the core of so many activist uprisings are a lot more relevant (and arguably more valid) now.

The fact of life under President Trump is that some fears are entirely rational, both in terms of threats from the state and from nonstate actors. You don’t have to believe every reported hate crime on social media to be aware that there are a lot of verified cases of harassment being undertaken in the name of our president-elect, and when Guatemalan-born children ask to start taking their passports to school it seems wrong to blame their parents for making them scared.

But not everyone has equal reason to fear: I think that a lot of progressives, not only on college campuses, are focusing on their own victimhood to the exclusion of protecting others. (I’m a woman, a Jew, and a journalist, and I am really annoyed with the number of people using their membership in one of those categories as evidence that they personally will be targeted by the federal government or 4chan. I am not the person I’m worried about right now.)

I feel pretty strongly that if you are less threatened, you are obligated to support those more threatened. When someone is afraid because she’s getting harassed on the street for being Muslim, or because her parents might get deported, you don’t get to pretend she’s just upset because her preferred candidate lost. But if you’re primarily worried for what President Trump will do to you, you should probably work through the relative likelihood that you’ll be endangered compared to others.

Cross: Drew Whitney Morgan, The Verdict is Comedy

November 2, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross former Miami public defender turned stand-up comic, Drew Whitney Morgan, described as “Mark Twain on acid,” who’s currently touring the country with Trae Crowder and Corey Ryan Forrester on the sold-out WellRED Comedy Tour, hjs co-authors of The Liberal Redneck Manifesto:Draggin’ Dixie Outta the Dark.

Q. You’re a Tennessee redneck and, at least at first, you didn’t stray far from your roots: you were a high school jock who went to local Maryville College, where you were an award-winning football player and an excellent student. You majored in government, and it’s not a huge leap from there to law school, but what led you to pull the trigger? Was it always the plan? Were you bored? Restless? Tired of all the adulation from cheerleaders? Were you going to save the world?

A. I guess first of all I’ll say that I’ve always identified as more of a hillbilly. Growing up, “redneck” was an insult. But meeting other southerners, I learned it was often vice versa, and that all those words – redneck, hillbilly, hick, white trash – were insults invented by people who weren’t like me to put us down. At first I ran away from that entirely. I guess that sort of answers the second part of your question.

Where I’m from doesn’t have a lot of jobs or things to do. I went to law school because I wanted to see more of the world and get a “good job.” But I also wanted out. I had good grades and got a good LSAT score and thought, like so many young people, law school would be a good way launch myself upwards away from being “redneck” while still figuring out what I wanted. That was very naive.

Clearly, I’ve circled back to being redneck. To hell with that being an insult.

Q. You went to Boston College Law School, class of ‘10. This was at the height of the Great Recession, when professional opportunities for new lawyers were nowhere to be found, but the message hadn’t yet filtered down to law students, who would find themselves jobless after graduation, heavily in debt and without the future promised by the glossy brochures. Were you aware of the risk you were taking by attending law school? Boston College does significantly better than average in terms of bar passage rates and employment outcomes for its grads, so were you somewhat insulated from what your peers at other schools were going through? More importantly, did you like it? Was law school living up to your expectations? Did you ever freak out and say to yourself, “what was I thinking?”

A. I hated law school. But I’m so stubborn I didn’t realize it until I left, which is the most lawyer thing about me I supposed- I can’t ever be wrong.

I’m not sure what my exact expectations were, but they were probably unfair. Because of that, no, law school did not live up to them.  I’m sure I was insulated some from those issues but I had no frame of reference. BC is a good school, but my grades we mediocre because for the first time I didn’t give a shit about most classes.

I absolutely freaked out over the job issue. I also remember being angry at realizing that I’d been lied to. Not just by the school, but it felt like by everyone. Education is put on a pedestal in this country as if it is a magical tool that automatically qualifies you for the American Dream. ESPECIALLY a law degree.

I, again naively, thought a law degree was versatile and I could do anything with it. My parents also believed this. Turns out, law school is basically a trade school for type A’s. When those loans go from an abstract idea to an actual bill, and you realize you can’t get any other jobs, it’s a hell of a thing.

The world had lied, my parents were fallible and I was ignorant. This all hit at once and it was scary.  But I’m glad I learned all those lessons relatively young.

Q. What made you choose criminal law? It couldn’t be economic, since criminal lawyers, especially public defenders, aren’t likely to get rich. So why? Were you dead set on being a defense attorney, or did it just happen? Firebrand liberal that you are, was there a political motivation? Was there a burning desire within to perform, before a jury if no one else?

A. It was always gonna be trial work, for sure.

My father is a preacher and my mother is a teacher, so service has always been important to me and my family. I came to law school looking for ways to serve. I started out volunteering for immigration law projects. It was too bleak for me, honestly.

I kept looking, and yes, politics had something to do with it. I wanted to try trial law and just couldn’t see myself ever prosecuting a man. To stand up with righteous indignation and wielding the power of the State was so fucking strange to me. I still can’t wrap my head around the folks who do it. Don’t get me wrong, we need good prosecutors and I’ve met quite a few (some shitty ones too, of course). But I couldn’t see myself doing it.

With public defense, I felt like I could wrap myself up in people’s stories, rather than some “cause” or political ideal. I liked having clients. Then when I got into it and realized the awful shape our justice system is in, I wanted to pursue it even more.

Q. After graduation, you moved to Miami, where you signed on with the county public defender’s office. You started off doing juvenile representation, but moved quickly to adult court, where carried 100 cases at any given time. Did anything in your education prepare you for the harsh reality of representing society’s poorest and most vulnerable? Juggling so many cases at a time? Were you mentored, given adequate support, or thrown in the deep end and left to swim? Were you happy with what you were doing? Were you desperate to get out? Both?

A. I don’t know about my legal education preparing for the emotional side of PD work. I don’t think it did. I’m not sure anything could have.

As for the case load, the Miami PD office is a special place and they prepared me as best they could, sending me and other new hires through a rigorous training before we got a single client. I had wonderful mentors and we were supported as adequately as possible.

However, the truth about public defense is that it comes down to you and your client(s). I liked a lot about that, but in terms of support, it’s tough. There is no money. There are no resources. There is no support system. You are the resource — you and a small, dedicated, over-worked and shared-among-many team. That being the case, being thrown in the deep end was necessary. There is no shallow end.

At some point I became both happy and desperate to leave. My time as a public defender is what I’m most proud of in my professional life. It is a hard and noble job. Public defenders are my heroes. But, it was killing me. There are no happy endings in a criminal case. Even when the outcome is “correct,” no one feels happy.

Q. Obligatory first jury trial question. What kind of case, and how did it go? In retrospect, were you the lawyer you thought you were? What would you have done differently? You tried over 40 cases during a sixteen-month stint at the public defenders, including 24 as lead counsel, which is a hell of a lot for a greenhorn. Can you even remember the individual cases? Were you burning out under the workload, the stress? Is it possible for PDs to provide adequate, even zealous representation to their clients, given the volume of cases, the pressure, the many demands on their finite time and energy? Is it all too much?

A. I can only remember the details of about five cases. One, of course, was my first, which we won on case law. I knew we would win and I was pumped about it. My kid had stood up to a bully who had kicked his friend. They fought, unfortunately at a separate location, later at school. He pled self-defense and the state failed to offer any direct opposing testimony. All they had was a teacher who saw the end of the scuffle. The alleged victim wouldn’t testify because he had his own case springing from the initial bullying. The state thought they didn’t need him. They were wrong.

The judge agreed that case law made a guilty verdict literally impossible. Motion to dismiss granted.

I was folding under the load though. Yes, I was burning out, but I didn’t know it.

I hesitate to answer the question about zealous representation. The truth is no, it is generally not possible. I know a lot of PDs who do the impossible daily, though. But, and I think they will tell you this, they also fail sometimes from sheer exhaustion or simply running out of time on any given day. I don’t wanna say PDs don’t zealously advocate – they do. But it’s not sustainable. There’s a reason most of us quit.

Q. At the very end of 2011, you moved back to public defense – Knox County, Tennessee this time. You may not have had some of the luxuries of Miami-Dade, like hallway depositions, but they promoted you up to felony within three months and you were handling a “mere” 60-80 cases at a time. Compared to some of your fellow grads, you were doing great. But after another two years in the trenches, you gave it up for life as a stand-up comic? Where did the ambition come from? What did your wife, friends, coworkers think about this? Were you burned out on the law, criminal defense, or were you desperate to pursue your craft? At that point, did anything seem like a good alternative to more public defense, or had you found your true calling? Did you think you were funny?

A. I’ve loved stand-up comedy since I was 5 years old. Jokes felt like literal magic to me as a kid. I mean my sweet and Baptist mother laughing at Eddie Murphy saying AWFUL things? That was something special.

My wife knew this and pushed me to pursue it. I did, at first as a hobby, as a release of tension more than anything else. I recall my friends and coworkers being a little surprised at it. But it also kinda makes sense. I’m a smart ass and I’d always liked performing.

When we moved to NYC, I intended to take a month off and then pursue being a Harlem Defender. During that month, I did and/or watched comedy every night and I realized that 1) I could be good at this, and 2) a comedy career is all I want.

Also, I was realizing I shouldn’t go back. I was coming dangerously close to being a bad lawyer. Instead of making legal arguments, for example, I wanted to tell judges, “You shouldn’t violate my guy on that this VOP for a failed drug test because the drug was marijuana and let’s all grow up and I got high with your bailiff last month and fuck this shit.”

That’s bad advocacy.

Q. In 2014, you and your wife, an actress, moved to New York to  pursue your careers full-time. You were doing document review during the day to pay the bills and stand-up at night. “Liberal redneck” that you are, how did you like the bohemian life? How did you get your start? Did all the court appearances leave you cool facing an audience, or is it a bad comparison? Was an audience easier to face than a jury? What if they didn’t laugh? What if they returned a one-word verdict?

A. I think it is a fair comparison in terms of nerves, but a key difference, and what probably has a lot to do with me leaving criminal law, is that if no one laughs, it hurts your soul. If you lose a big case you should’ve won, it hurts your soul and also it ruins someone’s life.

So being a lawyer prepared me in a specific way for comedy. I was less afraid to “bomb” early on. That’s not to say I was fearless, but after you call a cop a liar in front of a court room, some drunk at a bachelorette party screaming “you suck” just isn’t that scary.

Q. Lawyers are dropping out of the profession at an alarming rate. More than a few snake-oil merchants claim the problem is that lawyers are stressing themselves out too much, not taking care of themselves, and that they shouldn’t sweat the details (like providing competent representation) if it’s upsetting to them. But then there’s you: after you decided to stop doing arguably the most grueling crimlaw job of all, you didn’t go and work at a golf course. Instead, you traded law stress for comedy stress, a “job” that doesn’t even have the benefit of a steady paycheck. And in a notoriously competitive business, you’re making a success of it. Do some people just thrive on adversity? Did your tolerance for adversity as a lawyer pay off as a comedian? Would you recommend it to other lawyers on the fence about quitting? Is “following your dreams” good enough, or do you have to be tough enough to back it up? Are all lawyers really frustrated stand-up comics?

A. I do think I (perhaps unhealthily) crave struggle. I can’t explain it. In terms of advice to other lawyers, I left the advice business a while ago. But I did write a column called “follow your dreams, pussy,” sort of as a joke. So yeah, do whatever you want.

Are all lawyers frustrated stand-up comics ? Ha! An EMPHATIC NO. Very, very few of us are funny. Most trial lawyers reading this are already getting defensive and arguing with me. I get it. You’re a hit at parties. Juries like you. And you’re one of those people who can do anything. You’ve accomplished every single goal you’ve ever set for yourself (other than experiencing deep happiness). But trust me, you’re mostly definitely not funny. At the same time though, if you wanna do anything different with your life, you gotta ignore a lot of assholes telling you what you are or aren’t, so fuck me.

Q. You, Trae Crowder and Corey Ryan Forrester – Tennessee rednecks all – just co-wrote a book, the Liberal Redneck Manifesto, where you spend equal time poking fun at your homeland and celebrating what you love about the South. Your background provides the source of a lot of your comedy, and to be fair: in a time of ludicrous transgender-bathroom legislation, it makes a lot of sense to pick on Dixie. But since you guys are not-so-secretly southern patriots, isn’t it maddening to be treated with condescension by your fellow liberals, those coastal elites who hear “southerner” and assume the worst? Is that in part why you wrote the book? Is it worth it, being a Southern liberal and perpetually misunderstood?

A. What a phenomenal question. Hell yes to all that. One of the most interesting parts of the comedy tour is interacting with fans from the coasts who sometimes overtly but accidentally commit the sins they judge the south so harshly for.

“Well I’m just wondering, with all the cousin fucking and Klan meetings at schools and third world conditions in your homeland, how y’all got out?”

I’m barely exaggerating. A woman told us she lived in the south for a year and “wanted to kill herself” and thought that would be endearing.

So it’s like “How’d we get out? We fuckin’ drove here.”

That’s absolutely the goal of the book, as well as trying to move on from the actual and very real problems of the south. And of course, it is all worth it. Being southern is the best thing about me.

Wouldn’t you rather come back into the redneck mainstream?

*I’m sorry. I for real don’t know what you mean.

Q. You’re well on your way to stardom. You, Trae and Corey are currently on tour in the wake of the successful book release, you’ve appeared at a number of comedy festivals (and been extremely well-received, we might add,) you cohost your own political comedy show on SiriusXM. Not bad. Not bad at all. Miss public defense yet? Are you sure you made the right choice? Where do you want to go from here, prime time sitcom or dancing with the stars? And where can we expect to see you next?

A. Haha. YES. I made the best choice for me. And yeah it’s working out. But I was happy with my choice a year ago, too, doing document review in a windowless office with more than few coworkers who’d given up, leaving there to go to a windowless bar and tell jokes to 3 people who didn’t care, eating shitty pizza and then waking up late and rushing to the train to do it again – I was happy. As I said, I kinda glorify struggle. I hated it at times. But it worked for me. It was the right choice then. So now that things are going well, I still of course feel I made the right call.

From here on – yes I would like to act in and write scripted comedies. But my main goal is for y’all get to see the wellRED tour get our own special. Hope that happens soon. SKEWWW! Thanks.

And what’s so funny? Ladies and gentlemen, Drew Whitney Morgan!

Cross: Alan Gura, The Lawyer Who Changed The Second Amendment

October 26, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Washington, D.C. lawyer, Alan Gura, whose representation before the Supreme Court of the United States in District of Columbia v. Heller and McDonald v. Chicago fundamentally changed the interpretation of the Second Amendment.

Q. You studied government as an undergrad on Cornell’s arts quad. Were you always interested in government, or was that something that caught your attention in college? Did you plan to go on to law afterward? Cornell was something of a long-time hotbed of liberal thought. Was that your perspective going in, during or coming out? Was there an influence in college that framed your interest in the law? Did your coming from Israel have any bearing on your views on American government or law?

A. I’ve always been interested in government and public policy. I don’t recall exactly when it was that I decided to go to law school. There was no epiphany, where the clouds parted to reveal the “aha” moment. At some point, law school seemed like the next logical step.

I got a good sense of Cornell in the summer of 1988, which I spent there after my junior year of high school. I never thought of Cornell as a particularly “political” place. It just seemed like a great school overall, and that it was. To be sure, there was plenty of PC nonsense, but I don’t know if it was better or worse at Cornell than on any other college campus at the time. If anyone graduates from Cornell having experienced nothing more than “activism,” they’ve done something wrong and blinded themselves to a great time.

I came to this country from Israel shortly after first grade. Like most (all?) first-graders, I didn’t have very many views about government or law. Of course, not everyone there, or here, shares my views on anything.

Q. After the chilly hills of Ithaca, you attended Georgetown Law School. What made you decide to go to D.C.? Was there any particular area of law that interested you going in? Was the plan to practice law or to use your education in government? Did you have activist views toward the law, toward the Constitution in law school? Back in the early 90s, the predominant view of the Constitution was that it was a living document, subject to whatever emanations and penumbras one wanted to find to meet societal desires. Was that your view? Did it change?

A. Georgetown is a great school, and I was thrilled to be accepted there. I loved Washington, which of course offers a great deal for anyone interested in public affairs. While I graduated from Cornell, I had spent a year of college at Johns Hopkins, in not-too-far Baltimore, and took advantage of that to intern for then-Senator Pete Wilson. My job was essentially that of legislative correspondent, drafting constituent letters (primarily on environmental issues), giving tours of the capitol to visiting constituents, and generally helping about the office. It was a great introduction to Washington.

When I returned to Washington a few years later, I did not go to law school with any particular employment plan. I had next to no knowledge of the legal industry, but I was interested in the law, and figured that I’d find something useful and interesting to do within the profession. I cared, then as now, about any number of issues from a libertarian perspective, but I didn’t plan on necessarily having a public interest career.

Law school helped me develop a deep appreciation both for the genius of our Constitution, and the genius of some of our judges and justices in subverting it completely. I never bought into living constitutionalism, which is nothing more than left-wing politics by another name. And it did often seem that everything after 300 U.S. 1 is just wrong. The Slaughter-House Cases were a complete farce, and the way my professors and classmates related to Lochner was the world turned upside down. Constitutional text reflects the Framers’ classical liberal values. Fighting those values requires subverting the text.

In my second year, needing to make some money, I came across a flyer in a law school hallway advertising a position at something called “the Institute for Justice.” I was already fairly libertarian in my views, and discovering IJ was a revelation. IJ was this magical oasis compared to the leftist law school environment. It was an honor, and a major inspiration, to work with the attorneys there. They opened my eyes to what was possible.

One of IJ’s ultimate goals is to get Slaughter-House overruled, an issue on which I learned much from Chip Mellor. I could not have imagined that within sixteen years, I’d win a Supreme Court case where the deciding vote, even if it was the only one yet – called for the restoration of the Privileges or Immunities Clause. I also attended IJ’s summer student conference during one of my law school years, a highlight of which was a Ninth Amendment lecture by Prof. Randy Barnett. I consider myself very lucky that I’ve had the chance to continue learning from and working with Prof. Barnett.

Q. After law school, you clerked for North Carolina District Judge Terrence Boyle, who had been legislative assistant to North Carolina Senator Jesse Helms, and he was a pretty conservative judge. Did you actively choose to clerk for Judge Boyle because of his positions? What did you take away from your time in North Carolina, aside from an appreciation of barbecue? Did your experience with Judge Boyle influence your views? Did this confirm or change your view of constitutional interpretation? Did you have any desire after this clerkship to get into court and try cases?

A. I chose to clerk for Judge Boyle because he’s a great judge, because our values are essentially consistent, and because we connected well enough in the interviews to be honored with the offer. I considered various factors in researching clerkships, and I wouldn’t have applied without at least reading a few of the judges’ opinions and getting as much sense of their world view and personality as that might reveal.

That Judge Boyle had once worked for Jesse Helms suggested that Judge Boyle fit comfortably somewhere on the right side of the spectrum, which was fine by me—that’s what I was seeking—but that’s about all that particular data point said. Our political system doesn’t allow for very precise sorting—there’s the more-or-less right wing faction, and an increasingly leftist one. Having worked on the Hill, I had learned not to directly equate people with their bosses, for better or worse.

Are there people reading this who think Helms was the devil incarnate and anyone who’d work for anyone who’d work for him is morally defective? Sure. But that’s not how the world works. If you think his policies hurt people, I’d say the same thing about his left-wing equivalents, e.g. Barbara Boxer and Ted Kennedy, but I harbor no particular ill will against them or their staffers or their staffers’ staffers. Having said that, of course, I do judge people with terminal harshness for associating with those who are beyond the pale—Donald Trump and David Duke come to mind. We all draw our lines somewhere.

And whatever his shortcomings, Jesse Helms did at least one great thing for this country: he helped place Terrence Boyle on the federal bench. I’ve never been prouder to have worked for anyone. Judge Boyle is sharp, personable, well-read, and he cares deeply about the law and about the people impacted by his decisions. He is incredibly patient—much more so than I would be in his position. And he’s absolutely committed to the Constitution and to the principles of the Declaration of Independence. He’s really the gold standard for a federal district judge, and I’m not saying that because I worked for him (some clerks have written bitterly of their bosses), or because I agree with every last decision he’s issued since taking the bench in 1984 (that would be impossible). Judge Boyle possesses all the qualities that anyone would want in a judge, and he’s a fine human being.

Apart from lucking out with a great boss, the position of law clerk gave me an invaluable perspective on the practice of law. I experienced, first hand, a wide variety of lawyering within a very diverse docket, and had the opportunity to see what worked and what didn’t. I encourage clerking for all aspiring attorneys. By the time I started the clerkship I had already decided that I wanted to litigate, and the clerkship didn’t do anything to change my mind.

I hadn’t set foot in North Carolina until I first drove down to interview with Judge Boyle. As it was only a one year clerkship, I figured that I could clerk on Mars if that’s where the job took me. Fortunately, the barbecue is better in North Carolina than on Mars. Although the chambers were near the coast in Elizabeth City, we almost immediately traveled to Charlotte to help out in the Western District, and once during the summer Judge Boyle held court in New Bern. So I saw a great deal of the state, and very much liked it. My family loves vacationing on the Outer Banks, which I discovered through the clerkship.

Q. From NC, you went to California (a return of the prodigal son perhaps?), where you served as a deputy Attorney General. Did you get to try cases? Were you the trial lawyer you hoped to be? Did you have trial lawyer in your bones? After that, you went to Sidley Austin for a bit, then became counsel to the Senate Judiciary subcommittee on Criminal Justice Oversight. How did that happen? Were you interested in criminal law before this? Did this relate to your experience as a deputy AG? What sort of issues were you dealing with? Did you find yourself on a “side” in the mix? Were you sympathetic toward “truth and justice” or the defense?

A. I’d spent my law school summers at the California Attorney General’s Office in Los Angeles, in the Civil Division’s “Torts and Condemnation” Section. A different unit handled most prisoner claims, and another unit handled most employment claims, but this was the section that primarily defended the state and its employees in civil claims for money damages—everything from allegedly dangerous conditions of state parks, to police shootings, to airplane crashes.

The state’s tort control board resolved many of the simpler or low-dollar claims, so if the Torts and Condemnation section got the case it was usually at least somewhat interesting and often significant. The L.A. office’s geographic reach comprised the bottom half of California, excluding San Diego and Imperial counties. The attorneys I worked for were wonderful mentors, and they liked my work enough that it was suggested I’d apply for a job as a Deputy following my clerkship.

The experience could not have been much better. Every once in a while, a complaint would show up in my box. Someone had sued the state, I was to defend it, and let the bosses know how it turned out. That’s it. And it would be my case on appeal as well. Of course, having had no prior litigating experience, I knew next to nothing. I was conversant with the federal rules from my clerkship, but most of our work was in the state court system—and there’s a big difference between reviewing pleadings, and figuring out which ones to file and how to prepare them. But I was honored to work alongside some of the greatest attorneys I would ever meet, and I learned quickly.

There were about thirty of us in the L.A. office, and while not everyone was close to everyone, it was a tight-enough office, and overall there was a fairly good camaraderie. At the time, our office supervisor would have to review what I put on letterhead, but oddly enough, not what I filed in court. Of course, we all sought input from each other on significant pleadings, if (as was typical) we had sole responsibility for the case. The client agencies decided whether to settle and for how much, but otherwise, we each had total responsibility, and autonomy, as to how to work our cases.

Within a few weeks of starting, I was in court. Cases that someone didn’t want or couldn’t handle anymore for some reason were “burgers,” and our supervising deputy had a spatula on his wall signifying his authority to “flip burgers” to the other deputies as justice required. On day one, among the first “burgers” flipped my way was a bizarre case brought by two convicted car thieves who had been stopped by the highway patrol before they could drive their stolen SUVs across the border. The thieves claimed that cars were chock full of their goodies that they were planning to take home to Central America, and that the highway patrol had a duty to inventory and secure their now-lost property. Of course the cops, and the cars’ owners, knew nothing about this, and the thieves’ receipts were on the vague side.

The deputy who first had the case had only time enough to file an answer, but of course this wasn’t going to fester long, notwithstanding the plaintiffs’ lawyer’s plan to depose not just the police officers, but his clients’ victims about what they had allegedly done with the car thieves’ alleged possessions. So I gathered it was my task to write a motion for judgment on the pleadings—lack of duty to the thieves in securing the cars they’d stolen, and a raft of immunities under the tort claims act—and I drove to Indio to argue it.

I was stunned when the judge granted my motion, but with leave to amend. I left the court somewhat dejected, not realizing yet that in California some judges will always grant leave to amend at least once, no matter what, and that I’d won as much as could be won that day. We have to waste time doing this again? What amendment could possibly state a claim on these facts? I stopped at a bagel place for lunch before leaving the desert, and commiserated with the shop’s proprietor. He was somehow related to Carl Karcher, the burger magnate’s brother as best as I can recall, and I got a coupon for a free burger at any Carl’s Jr. So the case was a true “burger.”

The job’s biggest downside was that it paid next to nothing. People who’d been there for a while made okay money, but the starting salary for newbies had me living back home with my folks. Still, that position was invaluable—almost everything I ever learned about the practice of law, I learned from my colleagues and own my own at the California Attorney General’s Office. There’s something to be said for my almost two decades of experience since leaving that job, but that’s really where I became a lawyer. And yes, we went to trial.

I had two trials during my stint at the AG’s office. I second-chaired a suicide-by-cop case involving five highway patrol officers in the federal court in Riverside. A troubled teenager led the cops on an exceedingly wild chase that had ended with five of them opening fire on him. We earned a defense verdict after several hard weeks of trial. And I first-chaired an aviation case, brought by a county park concessionaire who sued when an airplane piloted by a state employee in the course and scope of employment crashed into his concession. The pilot’s insurance company had become insolvent, and the plaintiff wanted the state there as a deep pocket beyond what the guarantee association might supply. A few days into the trial, the case settled with the state paying nothing. That case, too, was quite complex—though the plane crash, tragic as it was for the pilot and his family, was the best thing to happen to the plaintiff’s business.

I’ve had some trials in my practice since leaving the state, but it’s largely out of my system. I prefer arguing about the law, not about what happened. For years now, I’ve tended to take cases that are unlikely to reach trial, as the adjudicative facts are undisputed. But it’s nice to have learned that I can successfully try cases.

At the Attorney General’s Office, I never faced a conflict between “truth and justice” and the defense. In cases of liability, I could recommend a settlement and the client agencies would settle. Everyone was a grown-up and we were busy— we weren’t going to waste time and take needless risk in cases where someone screwed up. But if the case had no settlement value, and especially if the plaintiffs conjured the bovine sciences, no soup for them.

It helped that the clients tended to be highly professional. Some police agencies are absolutely corrupt, and our nation plainly faces a problem with excessive police militarization. In my practice, I’ve since represented people in claims against incompetent and violent cops. But California’s state law enforcement agencies, at least when I was there, were clean. I was never called upon to defend bad officers. And in at least one memorable instance, I defended a police officer against a claims that was out-and-out fraudulent—I successfully obtained sanctions in that case when the evidence was uncovered.

As much as I liked my job in California, after a while I felt that I’d learned what I could, and I wanted to return to Washington and do something else with my career. A college friend at Sidley suggested I apply for an associate position they had, so I lateraled there as a fourth-year associate. I’m not going to slag the firm or some of the people there, but, let’s just say I disliked it for many of the typical reasons that people dislike Biglaw. After some amazing experiences at IJ, with Judge Boyle, and at the California AG’s, Biglaw was a big letdown. I’ve got my stories, but it wouldn’t serve any useful purpose to unload them here. And they aren’t that unusual.

One day I ran into an acquaintance on the Hill, who said they were looking for a counsel on the Committee, so I jumped at it. I’d still had fond memories of my earlier time on the Hill ten years earlier, and figured it would be a nice place to park for a while until I figured out the next step. While to some extent I focused on criminal justice issues, my colleagues and I were also the committee staff for the subcommittee’s chairman, Senator Thurmond. The greatest hurdle to being hired there was my complete lack of connection to South Carolina. Perhaps Southern California, or North Carolina, were close enough?

Q. After serving as counsel to the Senate subcommittee, you opened your own shop with Laura Possessky in Washington, D.C. Why not go back to Biglaw? What made you decide to take a chance and start a firm was the right route for you? Did you think at the time that you would end up before the United States Supreme Court? What was your focus when you first started the firm? How did it turn out? Was small firm life what you expected? Did it take off from the start, or did you sweat it out like the rest of us?

A. Actually, I started out, for a short time, as a sole practitioner. I wanted to practice law again, and to take and run my own interesting cases. I wasn’t opposed to partnering with others, but I was very much opposed to Biglaw, which I disliked intensely. If I thought my experiences were unique, perhaps I’d have tried another large firm, but it didn’t seem worth pursuing. I didn’t have a book of business, just some savings, some credit cards, whatever I’d learned over the years about the practice of law and a few connections here and there. I had no particular expectation of small firm life, other than that I wouldn’t have to put up with Biglaw life.

I figured I could always get a job somewhere if it didn’t work out. But the concept of self-employment was irresistible. It didn’t take off from the start, but I always somehow had something useful to do, and the business grew. I didn’t expect or directly plan to be arguing in the Supreme Court, but it was always a possibility considering the nature of some of my cases. I never gave the matter much thought, but neither did it seem fantastical or off-limits. The Supreme Court is a court. Some cases go there.

After a short time being on my own, I convinced a friend of mine, Chris Day, to leave his associate-ship at a small firm and form Gura & Day with me. Two years later, he brought in a third partner, a friend of his who was at the time a Virginia state senator, Ken Cuccinelli, and I brought in Laura Possessky, a Georgetown classmate and friend who had referred me some fantastic matters, and was ready to leave her firm.

That arrangement didn’t last long, with Chris and Ken going their way, and Laura and I going ours, in late 2005. I’d since seen a few associates come and go, and Laura chose to go in-house with the Corporation for Public Broadcasting this summer, so for now I’m back on my own—at least formally. In truth, I’ve always joined with other firms, and staffed up or down, depending on the requirements of a given case. Many matters I can handle myself; on others, I partner up. I have one matter now on which I’m one of five firms. In 2016, there’s just no reason why everyone must be under the same roof. I’d be happy to partner with others again, but it must absolutely be the right fit. If it happens, great, but it’s not mandatory.

Q. Your first case before the United States Supreme Court was, to say the least, a doozey. Heller v. District of Columbia. At the time you took on Dick Heller’s case, it was quite the radical proposition that the Second Amendment’s right to keep and bear arms was a fundamental individual right. What made you think you could change the long-standing interpretation of the Second Amendment? Was this a cause for you or a case? While some scholars were taking the position that it was an individual right, it was pretty much black letter law that it was a militia right. What made you think otherwise? Did you think you had a chance of achieving such a fundamental change in the law? What difference did support, such as CATO Institute, make? What about the institutional forces against you?

A. I wouldn’t agree that our position in Heller was all that radical. In the legal academy, the individual rights model had become the “standard model” of the Second Amendment, with the collective rights theorists regrouping under the “sophisticated” collective rights banner. That was one of the driving forces behind taking the case—that the academic debate was real, and the Fifth Circuit had just handed down Emerson, adopting the individual rights view and creating a split. It was a question of when and how, not if, the Supreme Court would get the question. The “collective rights” theory was black letter law only insofar as lots of courts had adopted it, but until the Ninth Circuit’s reaction to Emerson, in Silveira, no one had actually explained it. The collectivist theory was asserted, never proven or even elucidated to any degree, and legally it was the proverbial unclothed emperor.

It was, however, a very radical proposition in terms of the legal profession to be making a Second Amendment claim in 2003. It was tin-foil material for anyone who hadn’t studied it, though the criminal defense bar had discovered the issue, particularly after Emerson, and started raising Second Amendment claims. My colleagues and I could bring the Heller case because nobody else wanted it. If the Second Amendment was a big sexy issue in 2003, others would have pursued it.

The case was initiated by Clark Neily and Steve Simpson at IJ. It was their idea, but an idea outside of IJ’s core mission. Clark was allowed to work on the matter off-the-IJ-clock, and Bob Levy helped organize it. They needed a lead counsel, and Bob kindly thought of me. Of course I said yes, for a number of reasons. First, while I wasn’t a gun rights activist by any stretch, it’s an issue in which I’ve long strongly believed. Second, it seemed like a perfectly plausible case, in that we were right, the case would be handled IJ-style, and the courts appeared to be as open as they’d ever be to the argument. And third, we deeply believed that the issue would be determined one way or the other, such that the real risk was in doing nothing and allowing some random garbage case to frame the issue. So while we were by no means expecting a Supreme Court victory, neither did we expect defeat. We had a strong case in which we believed, and we were going to take it as far as it would go.

We didn’t get institutional support as such from Cato, as Cato doesn’t sponsor litigation. Bob put his own money into the case, and all of us had put in our time. We could not have predicted the institutional opposition, and all the twists and turns that the case would take, but nothing worthwhile is very easy.

Q. By the time you argued Heller, the “elite” Supreme Court bar had already taken shape. Did you ponder having one of the “known” lawyer take on the case? What did you do to prepare for oral argument? Did anyone question you as to whether you were the right lawyer to make the attack? It must have taken incredibly firm resolve to take the case on. Did you ever ask yourself, “what have I gotten myself into?” Did you ever consider giving up the fight?

A. It never occurred to me to give away a case I’d spent years developing just because others market themselves as “elite.” Aren’t we all special. It definitely occurred to various “elite” people in town, and their friends, that they should help themselves to my business. Bob kindly, and wisely, ran interference for me on that. It was always understood that I was taking the case to take it all the way. I prepared heavily, including five moots—the fourth of these was by far the toughest, but the last one went well enough, as did the argument.

To be sure, not every lawyer is ready to argue in the Supreme Court. But I had argued the case successfully at the D.C. Circuit, which wasn’t nothing. I wasn’t coming from a transactional practice, or from a career in some field involving largely the litigation of facts under established law and procedure. And the Supreme Court has been around for hundreds of years before this bizarre new notion that only half a dozen high priests might deign to argue there.

The Supreme Court has its own special rules and idiosyncracies, but that’s true of all courts, and we’re not pretending that only a handful of special people can litigate a pharmaceutical patent in the District of New Jersey or a capital case in Orleans Parish, to name two difficult, high-stakes matters of the kind I’d never attempt. The idea that judges should only hear from lawyers with whom they socialize is better suited to Podunk County Speedtrap Court. And in a generalist court, like the Supreme Court, there’s something to be said for the bar’s breadth of experience and perspective. Many excellent Supreme Court litigators would have lost McDonald for the simple reason that they’d never have included the Privileges or Immunities Claim that won Justice Thomas’s decisive vote. Had anything happened to me, Clark or Bob would have done at least as good a job arguing Heller. So could many of my former colleagues at the California Attorney General’s Office.

Of course, I market myself as someone who’s argued and won two landmark Supreme Court cases, but it wouldn’t occur to me to snipe someone else’s business just because they’re about to present their first argument. More than once, upon reading stories of attorneys being pressured to yield their first Supreme Court argument, I’ve reached out and encouraged them to hang on.

It never occurred to me to drop the Heller case. We were never in any posture where that might have made sense.

Q. To add insult to injury, you got screwed when it came time for the award of fees for your representation in Heller. District Court Judge Emmet Sullivan cut your fee request by about two-thirds, after another three years of fighting following the Supreme Court’s ruling in your favor. What happened there? From the outside, the $1.1 million fee award might have seemed pretty good, but given the many years you put into the case, it was grossly inadequate. Was this an example of “no good deed goes unpunished”? Was there some sort of animosity because of the position you took? What does this say about taking a long-shot chance and winning? Is the message to leave well enough alone?

A. It’s a matter of public record that we settled on appeal for a substantially larger figure than awarded by the district court, and still, it was not reflective of the market value of our work product as we had presented. I have some opinions on the matter that I would rather keep to myself at this time. People can read the decision and consider its assertions, educate themselves on the subject of attorney fee awards, and draw their own conclusions. You are not the only person who has asked me such questions.

Q. When you received the decision in Heller, it was a huge victory, a paradigm shift from the understanding of the Second Amendment for generations. But then, there was what I call Justice Scalia’s “errant paragraph”:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

What did you think when you read this? After all the effort exerted at changing the law, this gave an awful lot back without much by way of rationale. Was he smoothing ruffled feathers? Can this be justified? Were you satisfied with the decision, or did you see this as a switch in stumbling blocks, but still stumbling blocks to achieving a meaningful individual right to keep and bear arms? Despite this, Circuits have not given Heller a lot of respect, largely employing Justice Breyer’s “interest balancing inquiry,” unlike other individual rights. Why have court treated Second Amendment rights so much worse than other fundamental constitutional rights? Why has the Supreme Court allowed them to do so?

A. The “errant paragraph,” as you describe it, has not yet posed the greatest problems. At least in theory, there’s logic in the notion that every right has a contour, and if the Framers were comfortable with certain practices, they must not have believed them to be inconsistent with the right they were securing. Then again, the Alien and Sedition Acts were enacted within seven years of the First Amendment’s ratification, and at least some Amendments were enacted with the express goal of overturning existing law. And there are serious questions as to whether history supports the examples of longstanding prohibitions provided in the “errant paragraph.”

Most courts have held that “presumptively lawful” means that the presumption can be overcome in as-applied challenges. I’ve won two such cases so far, against application of the so-called “felon in possession” ban on behalf of plainly harmless individuals. Those victories were consolidated on appeal and affirmed by the en banc Third Circuit, Binderup v. Attorney General, and that could very well be the next Second Amendment case the Supreme Court considers.

On the negative side, the gun prohibitionists like to divorce the word “longstanding” from the rest of the paragraph, or read “longstanding” to mean as long ago as last week, such that virtually all laws are presumptively constitutional—a neat trick that undoes Heller’s holding. Indeed, they are trying to read this language to hold that there is no right to acquire guns at all, because any commercial restriction is presumptively (meaning to them, conclusively) lawful.

That’s a nonsense reading of a constitutional right, and not at all consistent with Heller, but it’s about what should be expected considering the Court has decided to let this right wither on the proverbial vine. The bigger problem, as you’ve identified, is that Justice Breyer’s dissent might as well be the majority opinion for many lower court judges. Prof. Allen Rostrom, who teaches at the University of Missouri Kansas City and was formerly of the Brady Center, wrote an article explaining this phenomenon four years ago, so it’s not exactly a secret.

Why is this happening? Many of the lower courts do not treat Heller as a fully valid precedent. It’s hard to imagine any Second Amendment cases prevailing in some venues. And it does appear that someone on the Supreme Court has either changed his mind, or wasn’t serious at the outset. The issue is bigger than the Second Amendment. Defiance on this level calls into question the Supreme Court’s institutional role at the top of the precedential hierarchy. UCLA’s Richard Re just authored an excellent article describing the phenomenon, “Narrowing Supreme Court Precedent From Below.” This practice invites chaos and lawlessness. That it can be credibly described, and celebrated by some, should concern the Court.

Q. Your Supreme Court encore to Heller was McDonald v. Chicago, bringing the Heller Second Amendment rights to the states. At this point, would it be fair to say you were among those “elite” lawyers of the Supreme Court bar? Did you see yourself as getting pigeonholed as the Second Amendment lawyer? Was that where you wanted to be? Now that you’ve proven beyond question your abilities as a lawyer, and a Supreme Court advocate, where do you want to go next? You’re now running your own shop, limited to appellate and strategic litigation. What does that mean? What’s the next “strategic” constitutional right you plan to take on? How do you see the future for individual rights in a county that seems more intent on finding safe spaces than free spaces?

A. Well, handsome, if you want to call me “elite” I won’t stop you. It’s better than some of the other names that I get called. “Elite” is not a term I’d have coined, because I don’t believe that the universe of people who can perform at this level is necessarily all that small, or as small as some law firm marketing departments pretend. If “elite” is the word for lawyers who are proven effective at complex, high-stakes litigation, including at the Supreme Court, I won’t object to it, though I’m not quite comfortable yet with self-describing that way. Marketing has never been a particular talent of mine.

I wasn’t well-known prior to Heller. Perhaps if I’d had a “boring” Supreme Court argument or two beforehand, things would have been different, but getting (in)famous all-at-once on a hot-button topic has had a pigeonholing effect. I’ve always been aware of that, and I continue to address it. Of course, Heller opened an exciting new field that I was eager to take advantage of, and which I was well-situated to pursue. It would have been dumb to stop working on Second Amendment cases. And I wanted to build upon my work, and leverage it into additional victories. I believe in the issue, else I wouldn’t take these cases, and I’m very happy to make a real, positive difference in the lives of my clients and others who benefit from this work.

But the Second Amendment is hardly my only interest, and it never appeared that a niche Second Amendment practice could be viable long term. It definitely doesn’t look that way now! I’ve never aimed to build such a practice. To be sure, I haven’t been successful in this area because guns are a defining or even large feature of my personal life—they’re not. Rather, I’d like to think I’m making the most of what could be made in this contentious area because I know something about complex federal litigation. McDonald should have proved as much, as the issue in that case concerned the Second Amendment only tangentially.

Heller and McDonald are examples of strategic litigation—the practice of designing and litigating a case for the purpose of creating or advancing precedent, usually by getting an unconstitutional law struck down. The substantive claim can involve any side of any topic, but there are some common considerations, doctrines, and best practices involved. I’m happy to be teaching “Strategic Litigation for Social Change” for the third year in a row at Georgetown, where I task students with identifying some unconstitutional law they’d like to get struck down, and then designing a case showing how they’d go about it.

Strategic cases start out in district court, but they have an appellate character from the outset. There’s usually little or no discovery, as the adjudicative facts are not at issue, and they go up sooner rather than later on cross-dispositive motions. I also handle appellate matters generally. For example, in recent years, I’ve filed two notable Supreme Court amicus briefs supporting Congress’s role in the conduct of foreign relations. And I’m happy to handle the appeals that some lawyers would rather have someone else defend or pursue.

I’m a generalist on appellate matters, but with respect to constitutional litigation I continue to favor free speech cases. One of my all-time favorite clients is Frederick, Maryland’s Flying Dog Brewery, which I successfully represented in challenging Michigan’s beer label censorship regulations. Michigan’s liquor commissioners banned Flying Dog’s “Raging Bitch” beer for having an allegedly offensive label, and we taught them a few things about the First Amendment that they might have missed in their safe space.

I’m helping fight California’s demands to snoop into the identity of advocacy groups’ donors, a practice long-recognized as a serious violation of First Amendment associational freedom. And I’m challenging the Federal Election Commission’s frankly puzzling practice of applying contribution limits to testamentary bequests. It’s hard to see the appearance of corruption when people choose to leave money behind to their favorite political party upon their death.

As the political culture becomes more statist, and schools indoctrinate young people into hating freedom of speech, it’s our role as lawyers who care about individual freedom to push back, and to do whatever we can to preserve our rights. But there are practical limits to “whatever we can.” The culture eventually selects the judges. We can’t do it ourselves. If, in the end, the people would rather have a safe space than a free space, that’s what they’ll get.

Photo credit Peter Goldberg

Cross: Bryan Garner, The Last Word On Legal Writing

October 19, 2016 (Fault Lines) — Ed. Note: Scott Greenfield and David Meyer-Lindenberg cross Black’s Law Dictionary editor in chief, Justice Antonin Scalia’s co-author and president of LawProse, Bryan Garner (with very careful attention to use of the past plural imperfect).

Q. You’re a Texas guy, despite a brief childhood misadventure in California, and attended the University of Texas at Austin for undergrad and law school. Coming off a senior thesis with such pedestrian interests as “Latin-Saxon Hybrids in Shakespeare and the Bible” and the ever-popular “Shakespeare’s Latinate Neologisms,” it might surprise some that you would end up going to law school. What turned you toward law school?

A. My high-school plan had been to go to law school. But then I succeeded at English literature and Shakespearean linguistics to such a degree that I flirted with getting a Ph.D. in English and pursuing lexicography. I was being prodded by my English professors. Thank goodness I received neither a Rhodes Scholarship nor a Marshall Scholarship: although I was the U.T. nominee for both, I didn’t make it to England on either of those scholarships. (I received lesser scholarships to study for short stints during two summers at Oxford.) So I reverted to my original plan—goaded in part by a fiancée (my first wife) who swore she didn’t want to be married to an English professor. I made the decision to pursue law on December 8, 1980, the day I received a rejection letter from the Rhodes committee (and, coincidentally, the day John Lennon, my teenage hero, was assassinated).

What inspired you about the law? Any particular niche of law you hoped to practice? Why not an academic?

I was inspired by a strange aspect of the law. Not social justice. Not righting wrongs. These were important, no doubt. But I was inspired by the idea that law was the highest calling for the professional rhetorician.

What was the best barbecue in Austin?

The Iron Works (still there). But the best in the world is in Lockhart, not far from Austin. It’s Kreuz’s Barbecue. I learned about it while clerking for an Austin firm.

Q. During law school at UT, you were a law review editor, which seems almost a given. But did you have a particular legal focus? Were there practice areas that caught your fancy? A nice criminal defense lawyer, perhaps? Had your interest in language remained your foremost focus? How did you take reading casebooks, decision after decision? Did you cringe your way through law school? Did you decide to make it your life’s work to make sure no lawyer should have to suffer such awful prose again?

A. My focus was on legal language from the beginning. In a way, I decided to become an English professor anyway. During my first week of law school, I undertook my first book, and I named it: A Dictionary of Modern Legal Usage. I constantly made linguistic notes on every case I had to read. These notecards became the basis for the book. I had 3,500 of these by the time I graduated.

Q. After law school, you clerked for Judge Thomas M. Reavley at the Fifth Circuit, then worked for a Dallas firm. Did you gain any interest in litigating? What sort of work were you doing in Dallas? Did you find the practice of law boring, unappealing? Did you consider other practice areas?  You started teaching at UT in 1988. Was that it, the end of practicing law? Was academia where you wanted to be, or was that by default?

A. The year with Judge Reavley was important and formative. He was a tremendous role model, and I think of him daily as I make decisions. My three years at Carrington Coleman were also important: I tried two cases first chair during my first year, and I argued two appeals. I won all four. That was a great experience, and I became the poster child at the firm for the kind of experience a new associate could get. They put me on the hiring committee, and I had a vote even on bringing in lateral partners. I loved the firm.

But when my Dictionary of Modern Legal Usage appeared in 1987, some relationships collapsed. A senior associate actually suggested that my royalties should be forfeited to the firm as a “firm opportunity.” And some younger partners seemed to think I was getting too big for my britches—even though I studiously avoided discussing my literary endeavors. When U.T. gave me the opportunity to return as a faculty member, with a raise, I accepted. That’s when I discovered how much I love teaching.

Q.  In 1995, you became editor in chief of Black’s Law Dictionary, perhaps the most iconic of all law books. That’s a pretty cool gig. How did that happen?

A. I’m not quite sure. The West people didn’t even know I’d written A Dictionary of Modern Legal Usage or that I’d been editor of The Oxford Law Dictionary, a project that had been abandoned after three years by U.T. and Oxford University Press. I had a noncompetition agreement with Oxford that forbade me to write a law dictionary through 1994, and in 1995 West wrote to me inviting me to become editor of Black’s. I think that letter came at the suggestion of my mentor, Charles Alan Wright of U.T., but he never quite confirmed that for me. I’m pretty sure that he suggested this move to West.

I was a reluctant recruit. I told West that I was going to produce Garner’s Law Dictionary and soon put paid to Black’s. I said I would be embarrassed to associate myself with Black’s unless they’d let me rewrite the book completely. In the end, they agreed to that stipulation.

Given that law lingo has been accumulated over hundreds of years, what was the job like? Was there an agenda, such as updating an archaic tome, or were Black’s traditional definitions solid?

The problem was that the old tome was lexicographically naïve: adjectives were defined as if they were nouns, and nouns as if they were adjectives. Verbs were mangled throughout. I had to sort things out as a lexicographer first, to make sure that the principle of substitutability was met: a definition had to be substitutable in sentences for the word being defined. In the 7th edition, this was a humongous task. Then senses had to be separated and numbered in a logical pattern. In the 8th and 9th editions, this work was continued and perfected, and thousands of new entries were added. By the 10th edition (2014), the dictionary reached full maturity. Curious readers should sit down with a 6th edition and a 10th edition and look over any span of entries: you’ll understand why I prefer to say that I wrote Black’s Law Dictionary, not that I “edited” it. Of course, I had lots of help from staffers and from teams of scholars.

How does one start to change the definitions of legal words and concepts? How much pressure did you feel being in charge of this icon? Did you ever decide not to screw with tradition for fear it would come back to bite you?

From the beginning, my working assumption was that every definition in Black’s was presumptively wrong unless I could confirm its correctness in legal literature. That was a healthy way of approaching the project. I can remember a screwy definition of prevailing plaintiff in the 6th edition—absolutely incomprehensible. I gave it a good, straightforward definition. Later I learned that the 6th edition had been trying to grapple with a circuit split and to reconcile incompatible definitions. Chief Justice Rehnquist quoted my definition in the 7th edition as the primary source for his resolution of the circuit split. So it became law. Justice Ginsburg objected that never before had Black’s Law Dictionary been the primary source for a Supreme Court decision.

Q. You co-authored your first book with Justice Antonin Scalia, Making Your Case: The Art of Persuading Judge, published in 2008. How did it feel having to carry Justice Scalia? What was your role in the book?

A. “Carry” Justice Scalia? That was a 50/50 book. We both wrote the same sections at the same time, not knowing what the other might say. Then I’d meld the two versions into a single essay. He said, early on, that I was his coauthor, not his clerk. I appreciated that. He declared that we were equals—for purposes of the book only. Apart from writing my 50%, my role was constantly goading him to write about things he didn’t want to write about!

Wasn’t this a bit more about Justice Scalia’s preferred methods of persuasion than persuasion in general? In retrospect, are you sure that you’re in a position to give female lawyers fashion advice?

No! This wasn’t just about Justice Scalia’s preferred methods. This was our distillation of what all the great writers on persuasion have said over millennia. It was a lot of work. He took assignments from me. He’d read whatever I asked him to, from Aristotle to Cicero to Quintilian. Our disagreements are to be found in our debates: look in the index under “Scalia-Garner debates.” Otherwise, we were in full agreement (as we normally were about most things—except that I’m more libertarian). As for fashion advice for women lawyers, I feel certain we consulted with Justice Ginsburg before writing that passage.

Q. You did a second book with Justice Scalia, published 2012, called Reading Law: The Interpretation of Legal Texts. Given Justice Scalia’s textualist (not just originalist as the book makes clear) view of statutory interpretation, that was quite a controversial book. Are you also a textualist?

A. Absolutely! A controversial book? It’s among the most widely cited books in appellate opinions today. It’s largely uncontroversial as a matter of statutory interpretation—except among those who want judges to have full discretion to ignore or supplement statutory texts. Everyone is a textualist to one degree or another; everyone looks at the text. Some then depart from it rather quickly. But to the extent you’re trying to derive meaning from a text, the book can be helpful. Textualism gets controversial especially in constitutional cases. One prevailing view is that constitutional interpretation isn’t a matter of construing a text at all. My coauthor and I rejected that view.

There was, to be fair, significant overlap and conflict of various canons of interpretation. Much like platitudes, there’s one for every purpose. Did that concern you? Did Justice Scalia see any, ahem, inherent conflicts in some of his positions? In looking to the original meanings of words used in statutes, was it fair to interpret old language in modern context? And why did he hate legislative history so much? Did you share his cynicism about politicians bloviating? Is there nothing worthwhile to be gleaned from legislative history?

I stand by the book 100%. In fact, I think I’m prouder of Reading Law than any other book I’ve written, apart from Garner’s Modern English Usage. Read what we say in Reading Law about legislative history. And we explicitly denounce (with reasons) the idea that canons are like contradictory platitudes. That was a falsity propagated by Karl Llewellyn in a specious article.

Q. You’re a zealous advocate of plain language in the law, which seems quite odd given your position with Black’s Law Dictionary, the mother lode of archaic legal words. You call plain English “robust and direct—the opposite of gaudy, pretentious language.” Isn’t there a benefit to using boilerplate legalisms to cover, well, the required verbiage that no one really cares about? What makes Latin phrases, the ones we all understand well, pretentious? What’s the benefit to reinventing the wheel? Justice Scalia was noted for his “robust and direct” writing, but many argued it was too harsh. Was that what you meant, or did Justice Scalia take it too far?

A. I’m a plain-language advocate, and yet I’ve added thousands of Latinisms to Black’s Law Dictionary. The point of lexicography is that readers who encounter an abstruse term ought to be able to find out what it means. I had all the Latin maxims in Black’s retranslated by Roman-law and medieval scholars. That was an important step because there were hundreds of errors and mistranslations in earlier editions. What makes Latin pretentious? You’d rather say ceteris paribus than other things being equal? You’d rather say inter alia than among other things? I have no problem with i.e. and e.g., but many people confuse the two. I don’t write for those people.

As for Justice Scalia, he was hard-hitting—even toward me. But I don’t criticize my beloved coauthor. We loved each other, and this has been a hard year for me, with his untimely death.

Q. As lawyers, we’re expected to be competent wordsmiths, but experience suggests we’re not particularly good at original writing. We’re unclear. We’re verbose. We’re horribly redundant. Do lawyers write better when they stop trying too hard to sound lawyerly? Of all our writing sins, what do we tend to do worst? And why do we do it? Then again, are we any more clear and interesting using “plain English” that legalese? Is unclear writing, whether in plain language or lawyer jargon, still unclear?

A. Look, writing well is hard—as hard as playing scratch golf or playing a musical instrument really well. So why should it be surprising that lawyers write at the level of 17-handicappers or 10th-chair high-school clarinetists? Those clarinetists have six years of practice and playing under their belts, yet they’re not very good. I’m trying to help lawyers who want the equivalent of a PGA Tour card or an acceptance at Juilliard. It’s not for everyone. It’s only for the truly ambitious—and those who have enough humility to recognize how much room for improvement they have.

Every good writer grapples with the feeling that the material is simply intractable—that there is no clear way of presenting the material. The good writer overcomes this frustration.

Q. Chief Justice Earl Warren’s opinion in Brown v. Board of Ed was ten pages. Opinions today can easily run over a hundred pages in cases of relative insignificance? What the hell happened? Have the justices become uncontrollably verbose? Is that that much more to say that they can no longer just get to the point? Some (me, for example) have suggested that despite this obscene length, opinions have become less comprehensible, less useful. Is there an inverse correlation between the length of an opinion and its clarity? Has anyone told the justice this? Can anything be done about this, or are we saddled in perpetuity with reading prolix decisions that become increasingly confusing page after page?

A. I once told Justice Scalia that I was going to rewrite a Supreme Court opinion with a 90% saving in words, and much more clearly. He asked me not to do it. He said I would embarrass the Court. So I won’t do it.

Q. You’ve been the President of LawProse since 1990, but have really served as the Patron Saint of Legal Writing for the past generation. You done remarkable things, like interviewing Supreme Court justices. What do you do for an encore? Have you ever considered trying your theory in the courtroom? Would you want to sit on a bench and do the job of the folks you’ve interviewed? While you’ve dedicated your career to making lawyers better communicators, has that happened? The Green Bag called you the “leading authority on good legal writing,” but isn’t that a lot like being the best looking guy in the leper colony? How long can you keep proselytizing good writing?

A. People were asking me what I’d do for an encore in 1996. I’m glad I kept plugging away with LawProse and with book-writing. I’ve been privileged to have extraordinary experiences around the globe. I love what I do, and I plan to keep doing it. So far, it’s made me very happy. I hope things stay that way for a long while. But as someone once said, every story ultimately has an unhappy ending. I want to postpone that for as long as I can. My role model on this score is Jacques Barzun. If I can be puttering around my library at 102, still writing dictionaries and updating other books, I’ll be supremely happy.