Bias CLE 599 to 1
Saturday, February 14, 2004
ETHICAL MISC(haracterization)
Here is my response to Ethical Esq. in the controversy noted below.
peter swanson [1] sent this email to you through ethicalEsq & haikuEsq... [2] regarding this page [3].
I noticed your post from January 12 criticizing what you believed to be my position on the mandatory "Elimination of Bias" training. I am sure that you understand the space limitations in a publication like National Law Journal. To see my argument fully fleshed out, I recommend reading my brief, including the appendix, at biasbattle.com.
With regard to publicly revealing one's ideology, by taking on this case, Elliot Rothenberg has already done so. So have I. I am sympathetic to your suggestion that lawyers should just quit whining and stand up for what they believe. One of my frustrations has been lawyers from across the political spectrum who agreed with my position, but were unwilling to say so publicly.
In my brief and appendix, you will note the organized effort by political liberals in the bar association to send monitors to the lone conservative course. You will also note the partially successful efforts to deny credit to future courses that question the existence of bias.
I agree that it is important to broaden one's horizons. Sure, one can choose to attend something that is sponsored by one's political adversaries. You might actually learn something. But this is not about voluntary personal growth. Bias CLE is a mandatory requirement. The premise is that, if left to their own devices, attorneys would not attend. So if there were truly a variety of ideological choices (a doubtful proposition in Minnesota's experience), there would be a large segment of the legal community who would simply attend the seminar with which they already agreed.
One irony of this case is that all seven justices of the Minnesota Supreme Court were invited to the 2004 version of "What Bias?" to defend the Racial Bias Task Force Report. No justice was willing to attend the Federalist Society seminar. This has been outlined in powerlineblog.com.
You should recall that judicial and cabinet nominees are now asked whether they have ever been a member of the Federalist Society. As far as I can tell, what makes one a member is going to seminars. It follows that there could be career consequences for going to a seminar with the wrong sponsor.
The question is not whether these timid lawyers ought to have the courage of their convictions (they should). Rather, the question is whether the constitution protects their choice to be timid.
The Minnesota Supreme Court has suggested that the CLE rule is Constitutional because a lawyer can pick an ideology with which he already agrees. That was the gist of a significant portion of the oral argument and the Respondent's brief. This is a stunning concession if carried to its logical conclusion. It concedes that a truly mandatory program is not constitutional. The implicit opt out is the ability _not_ to broaden one's own horizons by attending a seminar with an ideology different from one's own.
However, the constitutional analysis does not stop there. Understand that substantive law courses do not, by themselves, qualify for credit. There is no apolitical or non-ideological option to satisfy the requirement. This is very much like mandatory church attendance. Broadening the choices to include mosques and synagogues does not cure the constitutional defect.
And what are we to make of the prohibition on self-study? Why must every class be "participatory"? The rule is not to ensure proper attendance records, as individual attorneys (not course sponsors) are responsible for reporting their hours. Whatever benefit is deemed to be derived from making the classes "participatory" has to do with the interaction between attendees. It follows that some attorneys may find this interaction violates their right to keep their ideology to themselves.
[1] http://www.biasbattle.com
[2] http://blogs.law.harvard.edu/ethicalesq/
[3] http://blogs.law.harvard.edu/ethicalesq/2004/01/12
