The (Muslim) Travel Ban: Trump v. Hawaii

Analyzing the Decision 

& 

Mourning Something Lost in America's Identity and Ideals.

One of my friends, Prof. Richard Reuben -- who serves on the faculty of the University of Missouri School of Law -- has offered these insights. Earlier in his career, Richard was an award-winning journalist who covered the U.S. Supreme Court.



"A few thoughts after having read the travel ban decision, [Trump v. Hawaii, Slip Op. No. 17-965 (June 26, 2018):]


1. It is not surprising to see the Supreme Court back executive power in the context of international affairs, and especially so in the context of national security. I tend to agree with this in principle.


2. Chief Justice Roberts' decision was an embarrassment -- deliberately shallow, both in accepting Trump's results-oriented "policy consideration" and in its paucity of reference to precedent. The reason seems pretty obvious. As been our history until this day, most of that precedent goes against his decision.



3. The lack of rigor is probably the most disturbing part of the opinion. For example, Roberts stressed national security, but there was no evidence, anywhere, of an actual national security risk that was in any way greater than that which we endure every day. The only difference was who sits in the Oval Office.


A stronger opinion reaching the same outcome could have been written, and Roberts' failure to do so constitutes an abdication of the judicial role. A judge not only has the duty to decide, but also to persuade that its decision is correct. A written and reasoned opinion is essential to the legitimacy of the decision. By any measure, the Roberts fails that test.


4. The court's decision to reject the Establishment Clause claim was naked judicial activism because the issue was not decided below. It's decision to reverse Korematsu was even worse because, as Roberts conceded, it wasn't even argued by the parties. Rather, the decision to reverse was occasioned only because the dissent brought the case up. What's next, Plessy v. Ferguson?


5. Justice Kennedy was in the five-justice majority. He has always been bad on race, and this is just another example.


6. The travel ban is now up to Congress. The opinion was almost entirely an interpretation of a statute. Congress can overrule that interpretation. The Republican Congress will not do that, of course.


7. American democracy is now on life support, and this decision removes one of the tubes by abandoning a strong judicial role. If the Republicans keep Congress this fall, and Trump wins another term -- more likely if the Republicans keep Congress -- the American experiment in democracy that began in 1776 will be over."





Copy of the decision here.

For another summary of the ban, see here and here. 

For a summary of Justice Sotomayor's dissent, see here. Her dissent concludes by saying:

By blindly accepting the Government’s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one “gravely wrong” decision with another.

Effects of travel ban here.

Thoughts coming from the Muslim community, here.

Another point of view here.

Robert I. Sutton's Good Boss, Bad Boss

How to be the Best  . . .  

and Learn from the Worst

Doha does not have a deep collection of print books for sale.  I was at Doha Festival City twice last week.  After touring the entire mall, I found a book I did not expect to see in Doha.

It's Robert I Sutton's Good Boss, Bad Boss.  The book builds on his research that supported an earlier book called The No Asshole Rule.  I read the earlier book, several years ago, when I served on a law school's hiring committee.  We tried to use the advice in the book.  Overall, we built a small faculty of dedicated teachers.  Sadly, we did hire a few jerks along the way, and frankly, the institution paid for it.

Amazon describes the new book in this way:  

If you are a boss who wants to do great work, what can you do about it? Good Boss, Bad Boss is devoted to answering that question. Stanford Professor Robert Sutton weaves together the best psychological and management research with compelling stories and cases to reveal the mindset and moves of the best (and worst) bosses . . . . As Dr. Sutton digs into the nitty-gritty of what the best (and worst) bosses do, a theme runs throughout Good Boss, Bad Boss - which brings together the diverse lessons and is a hallmark of great bosses: They work doggedly to "stay in tune" with how their followers (and superiors, peers, and customers too) react to what they say and do. The best bosses are acutely aware that their success depends on having the self-awareness to control their moods and moves, to accurately interpret their impact on others, and to make adjustments on the fly that continuously spark effort, dignity, and pride among their people.

I would add that good bosses aggressively protect their followers from "red tape, meddlesome executives, nosy visitors, unnecessary meetings, and a host of other insults, intrusions, and time wasters."  Good bosses play this "human shield" role so employees can do the work they need to do and meet goals that move the organization forward. 

In chapter 8, Sutton mentioned his Asshole Rating Self-Exam (or ARSE Test).  Some of the questions are very surprising . . .  and disturbing.  I can't imagine someone answering true to most of them!  Psychopaths for sure.  

The scoring system follows:

0 to 5 “True”: You don’t sound like a certified asshole, unless you are fooling yourself. 

5 to 15 “True”: You sound like a borderline certified asshole, perhaps the time has come to start changing your behavior before it gets worse. 

15 or more: You sound like a full-blown certified asshole to me, get help immediately. But, please, don’t come to me for help, as I would rather not meet you.

(I scored 0 on the exam, but I may be fooling myself.  I attribute that score to the 3,500 hours of dispute resolution training I have gotten over the last twenty years.) 

The book is an easy and helpful read.  I also recommend his blog -- Work Matters, which I have added to my blog roll. 

Karmic Payback? Saudi Football Fans May Miss Their Team's World Cup Opening Match

One Way the Blockade Effects 

People and not Just Governments

I am writing several book chapters for an upcoming book on the blockade of Qatar. In one chapter I described attacks on the media by the countries starting the blockade – Saudi Arabia, U.A.E., Bahrain, and Egypt. Among other things, the countries blocked Al Jazeera broadcasts and other media originating from Qatar.

I stated that the media blockade serve at least two purposes. It keeps an opposing narrative about Qatar from reaching people in the blockading countries. It also limits access to programming popular with conservative Muslim audiences.

In that chapter, I also described the Saudis relationship with sport broadcaster beIn Sports:

Saudi Arabia also blocked access to the ubiquitous and highly popular, Qatar-financed, beIN Sports on June 13, 2018. The station has about 5,000 staffers working in 43 countries. The U.A.E blocked access for six weeks before restoring it on July 22, 2018. Police had ejected and questioned beIN reporters attending sports events in the blockading countries or required them to remove company logos from equipment. The blockading countries would not allow marketing of the company or the sale of subscriptions, and they have encouraged their athletes to boycott any interviews with beIN. Countries sympathetic to the siege have prevented beIN staff from entering their countries to cover events. A pirate station also began working in Saudi Arabia. Then in January 2018, Egypt’s top prosecutor indicted beIN’s CEO, Nassar Al-Khelaifi, on charges of monopolistic practices.

See Paula Marie Young, "Power-Based Interventions of Countries Organizing the Siege Against Qatar," Qatar: Political, Economic, and Social Issues (Nova Science Pubs. expected 2019).

In what some people would characterized as Karmic payback, the Gulf Times reported on June 9, 2018 that negotiations between beIN and Saudi Arabia have broken down. beIN owns the rights to broadcast all 64 games of the World Cup. The £25 million sub-licensing deal would allow the broadcast in Saudi Arabia of the opening and closing match plus 20 other games of the World Cup.

The 21st World Cup begins on June 14, 2018 in Russia. If the negotiation fails, Saudi fans will have to watch the games through pirated broadcasts at locations with that broadcast capability. They will not be able to watch, from the comfort of their homes, their own team play in the opening match with Russia.

beIN has reached a sub-licensing deal with the U.A.E.

The Saudis have now asked FIFA to negotiate the deal on their behalf.  Its football federation later filed a complaint with FIFA. For more on this aspect of the story see here and here.

Saudi Arabia said it would broadcast the matches illegally, which triggered a response from FIFA and beIn Sports.

FIFA later imposed a hefty fine on Egypt's football team because Egyptian players refused to give beIn interviews.

Clearly, the blockading countries did not anticipate that the blockade would extend into this important football tournament. They erroneously expected Qatar to capitulate quickly to the demands of the blockading countries. Instead, Qatar creatively responded to the siege. See Paula Marie Young, "The Siege of Qatar: Creating a BATNA that Strengthened the Tiny Country’s Negotiating Power," Qatar: Political, Economic, and Social Issues (Nova Science Pubs. expected 2019).

Update: On June 13, 2018, Qatari officials announced that they had created three fan zones in different terminals of Qatar's international airport that would allow travelers to watch World Cup matches in their entirety.

The Red Velvet Lawyer Exceeds 250,000 Page Views!

A Big Thanks to the People Who Read this Blog!

On March 17, 2013, I posted my first blog post.  I called it: "Make art.  Think like an artist."  I read it again this morning, and time has been kind to it.  It still resonates.  Since then, I have created nearly 400 posts.   If I were Seth Godin, I'd turn them into a book or two. 

When I started this blog, I hoped to regain a voice I had had when I wrote a column every other month for the newspaper of the Bar Association of Metropolitan St. Louis (BAMSL).  The newspaper had about 7,000 readers.  My column was called from "Conflict to Collaboration" and discussed dispute resolution theory, techniques, ethics, and use.  When I began teaching, I quit writing the column.

As an academic, I lost my first-person, more colloquial voice in my law review writing.  The academy prefers the conceit that the words, and any analysis they reflect, appear on the page without a particular author's help or perspective. I have always preferred to write in first-person to make it clear the words on the page reflect my thoughts, biases, research, and analysis.  

I wanted back that first-person voice.  The blog offered that opportunity.  It also offered me an opportunity to do content marketing in support of the on-line mediation training program I had created called "Mediation with Heart."

During the first year of the blog, I tried to make a post a day.  I wanted to see how long it would take for the Google bots to find me.  Advice for bloggers said you needed to post frequently before the search engines would pay attention to your blog.  In the first few months, the Russian bots seemed to pay the most attention. 

I have used the blog in many ways over the years.  I continue to focus on dispute resolution topics and my ADR tribes.   I have discussed trends in legal education, especially when law schools saw steeply declining post-2008 enrollments and law graduates saw few job opportunities.  

I also used it to market Appalachian School of Law (ASL) when it faced competition from new schools in our market.  I talked about its mission, its faculty, its students, alumni, the classes I taught, its student organizations, and student community service.  When I reviewed my data on viewership, I learned that just this week, someone was reading a post about an ASL alum.  

I have discussed legal marketing, content marketing, and the new tools of marketing.  Yes, I like marketing.  My blog roll is also filled with links to bloggers who also like marketing.  

I also like to talk about leadership -- especially for women, about "leaning in," and about my experience in the three-year business coaching program offered by Chritine Kane for heart-centered entrepreneurs.  Leadership is a recurring theme, especially when I talk about leading my US and Gulf dispute resolution "tribes."

I created a series about "letting go" during my transition to Doha, Qatar in the summer of 2015.  Those posts still make me laugh and cry.  They talk about the family, friends, community, and food I love and left to come to Doha.  I write about my mom at least once a year.  I miss her most.

The blog also let me talk about wind energy, fracking, and natural gas production.  My blog roll includes links to a number of bloggers following the energy industry. 

I also post book lists, mostly so I can find those lists later. 

More recently, I have used it to discuss my experience teaching in the Arab Gulf.  For a while, I was trying to post weekly about the content in my course.  I have also summarized several conferences I attended.  I have shared links to good research sources on topics related to terrorism financing and human rights violations caused by the blockade of Qatar that came to my attention while I was writing two articles this past spring.

In addition, I created two posts with lists of organizations that will use your donations to support legal actions on your favorite issues of gun law reform or civil, human, reproductive, immigrant, or environmental rights.  I repost them on Facebook every time people seem to feel hopeless about the change they can make in the world. 

I continue to use the blog to discuss "mindset" issues about creativity, courage, productivity, gratitude, and growth.  Many of these posts reflect what I have learned from books I've read.   Every December or January, I share my "words for the year," a goal setting technique I find very valuable.

I want to thank all of you who have visited my blog.  My stats show I have viewership all over the world, with a surprising amount of attention from Russia in the last month.  I thank the Google bots for finding me and putting me on the first page of a number of search results.  Even the ABA has taken notice.

Very Modest Increase in Women Who Hold Equity Partnerships in Law Firms

Still Working on that Glass Ceiling

When I made partner in the mid-1990s, only sixteen percent of all partners in the U.S. were women.

A NAWL 2014 report shows little progress since then:

In its eighth year, the National Association of Women Lawyers (NAWL®) and The NAWL Foundation’s® annual Survey on Retention and Promotion of Women in Law Firms reveals not much has changed in its findings of compensation, leadership roles, rainmaking, and equity partnership at the nation’s largest 200 firms. The data this year revealed the same trend as in previous years: the greatest percentage of women (64 percent) occupy the lowest positions in firms (staff attorneys) and the highest positions in firms (equity partners) are occupied by the lowest percentage of women (17 percent). In comparison, the 2012 survey reported 15 percent equity partners were women and 70 percent staff attorneys were women.

“This year’s results reinforce that women in private practice continue to face barriers to reaching the highest positions in their firms – as equity partners and members of governance committees,” said Stephanie Scharf, report author, Past President of The NAWL Foundation, and Partner at Scharf Banks Marmor LLC. “It is troubling that women make up the large majority of staff attorneys – those lawyers in the lowest echelon of law firms – at the same time they make up a static minority (on average 17%) of equity partners in BigLaw.”

The 2017 report shows ongoing stagnation.

White women represent 88 percent of women equity partners and nearly 17 percent of equity partners overall. In the aggregate, women of color (including Black, Asian, Latina women) represent only 12 percent of women equity partners and about 2 percent of all equity partners . . . . There were some noticeable differences between the AmLaw Quartiles for representations of various diverse groups among equity partners. Women were 17 – 19 percent of all equity partners across the AmLaw 200. 

The new report has a table that makes a powerful statement about this lag in gender equality.