Professor Justin Walker, former clerk for Brett Kavanaugh, praises the judge's 'exemplary character'
Guest blog: Reflections on Judge Brett Kavanaugh

My colleague Justin Walker recently blogged about his admiration for and time spent clerking with retiring Supreme Court Justice Anthony M. Kennedy. Days later, the news broke that the president was nominating Judge Brett Kavanaugh, of the District of Columbia Court of Appeals, to fill Justice Kennedy’s seat. Because Professor Walker also clerked for Judge Kavanaugh, he became something of a media star, doing more than 75 radio, television and print interviews in a little over a week. I wanted to take this opportunity to allow Professor Walker to share some personal reflections on Judge Kavanaugh. Here they are:


Justin Walker
Justin Walker

When Justice Anthony Kennedy announced his retirement, speculation about his replacement quickly swirled. The president was reportedly considering a handful of judges, including his future nominee, Brett Kavanaugh. Since I clerked for Judge Kavanaugh and Justice Kennedy, I began to write and speak about both. Here are a few thoughts on that process, and on Judge Kavanaugh.

My summers tend to be quite quiet and solitary. But a couple Thursdays ago, I paused my summer research, pulled up Skype on my laptop, and sat for an interview with a local news station in New York. The journalist was a former college classmate, and the interview was so unexpected that I had to borrow a collared shirt from a friend whose house I was working at.  

Even more unexpected was that over the next two-plus weeks, I’d do about 75 more television, radio, and print interviews. Over one particular 30-hour period, I found myself on CNN, MSNBC, Fox News (twice), Fox Business (three times), Bloomberg TV, WHAS, and Mitch Albom’s radio show. That final one was a particular treat for me because as a kid, I used to watch Albom on ESPN, and I listened to his tear-jerker Tuesdays with Morrie on a road trip with my mom.  

In many of these media interviews, I emphasized that Judge Kavanaugh is exceptionally qualified. With 12 years on the second-most-important court in the country, 300 opinions, and an unparalleled 13 vindications by the Supreme Court, Kavanaugh’s credentials are, to put it mildly, strong. The day after his nomination, a front-page USA Today article began, “On paper, Brett Michael Kavanaugh may be the most qualified Supreme Court nominee in generations.”  

In addition, I’ve also talked to the media about Kavanaugh’s character, and I’m not alone there. Several critics have written columns saying they’re tired of hearing from all of Kavanaugh’s supporters about how he coaches his young daughters’ basketball teams, serves meals to the homeless, and thinks of his trailblazing mom — a teacher, turned prosecutor, turned state judge — as the real “Judge Kavanaugh.” Who cares, they say, that Brett Kavanaugh’s a nice guy?

Those critics have prompted me to reflect on why I’ve spent so much time talking about Judge Kavanaugh’s character.  

First, and perhaps most simply, I’ve talked about his character because nothing else about him has mattered more to my life and my career. To his former clerks, the judge is a mentor, an advocate, and a friend. His decade of supporting me through thick and thin is what first comes to mind when I think of him, rather than, for example, whether he believes courts tend to be overly deferential to administrative agencies (he does) or whether judges should be faithful to judicial precedents (yes on that one too). As another former clerk, Amit Agarwal, wrote: 

“It has been 11 years since I left the judge’s chambers, and . . . I still call him for guidance whenever I have to make an important decision. His response is always the same: He listens carefully, offers his own view, and then asks a simple but extraordinarily generous question: ‘How can I help?’ I can count on one hand the number of people in my life who regularly ask me that question and mean it. It is astonishing to me that one of them is a former boss who also happens to be one of the most distinguished judges in the country.”

Judge Brett Kavanaugh
Judge Brett Kavanaugh

Second, the framers believed character mattered. Not to go all law-nerd on you here, but when referring to the Senate’s “Advice and Consent” function, Hamilton’s Federalist 76 talked about qualifications and character — and only qualifications and character — when it said the Senate will “prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” Since Judge Kavanaugh’s qualifications are self-evident, I’ve tried to share with viewers and readers my insights about his character.

Third, my point about Kavanaugh’s character goes beyond “he’s a nice guy.” Take, for example, his approach to hiring law clerks. Because he hires left, right, and center, his clerks have gone on to work for liberal, conservative, and moderate justices, including Justices Kagan, Sotomayor, and Breyer. As Professor Amy Chua of Yale wrote:

“Many judges use ideological tests in hiring clerks. Judge Kavanaugh could not be more different. While his top consideration when hiring is excellence — top-of-the-class grades, intellectual rigor — he actively seeks out clerks from across the ideological spectrum who will question and disagree with him. He wants to hear other perspectives before deciding a case. Above all, he believes in the law and wants to figure out, without prejudging, what it requires.”

This suggests Kavanaugh values independence and fair-mindedness in his approach to his job as a judge. We can learn something about the kind of justice he will be from the kind of employer he has been.

Take another example related to clerk hiring: more than half his clerks have been women, and more than a quarter have been diverse. Taken alone, that statistic doesn’t tell us much. But his female clerks eloquently expanded on this in a letter to the Senate Judiciary Committee:

“We know all too well that women in the workplace still face challenges, inequality, and even harassment. Among other things, women do not enjoy a representative share of prestigious clerkships or high-profile legal positions. But this Committee, and the American public more broadly, should be aware of the important work Judge Kavanaugh has done to remedy those disparities. In our view, the Judge has been one of the strongest advocates in the federal judiciary for women lawyers.”
 
One of Judge Kavanaugh’s former clerks, Caroline Van Zile, recently wrote about this from a personal perspective:

“In a profession that often feels overwhelmingly male, the judge has been a champion for women. The vast majority of women who clerked for the judge have gone on to secure prestigious Supreme Court clerkships. They have also worked in all three branches of government. Every time I have faced a career decision, the judge has been there for me, willing to write a letter, make a phone call or just talk things through.”

I’m new to talking to the media, and cable news interviews usually last only a few minutes. Nevertheless, in hindsight, when I’ve done media interviews about Judge Kavanaugh, I wish I had been more precise about why I think his character matters and why his personal qualities speak to values that matter in a judge. I’m grateful to Dean Crawford for the opportunity to begin to do that here.

See a compilation of Walker's media appearances.

Professor Justin Walker, former clerk for Justice Kennedy, shares what he admires about the retiring justice.
Guest blog: Reflections on Justice Anthony Kennedy

My colleague Professor Justin Walker clerked for Justice Anthony Kennedy from 2011-2012, and, in my time as Dean and getting to know Justin, it is clear that the Justice remains a major influence on him — not just for his intelligence and ability, but for the values he embodies. As a result, I was delighted that Justin agreed to offer some reflections on Justice Kennedy, the man. I am pleased to share this revealing look at what made Justice Kennedy such a special member of the Court.


Justice Anthony Kennedy and Justin Walker
Justice Anthony Kennedy and Justin Walker. Walker clerked for Justice Kennedy from 2011-2012.

On the Supreme Court of the United States, the center of gravity shifts with time. The pendulum swings back and forth. The cycle spins on.

But men like Justice Anthony Kennedy don’t just come and go. He symbolized something fundamental to our nation’s great experiment with democracy. Something precious. Something that is vanishing.

That something is civility. Sure, he took tough stands. But he never met venom with venom. When possible, he gave his critics the benefit of the doubt. The Chief means well, he would say. Nino is just being Nino.

As we turn the judiciary into another tribal battlefield, this approach — to life and to the law — is at risk. And that’s why I do not look forward to the coming fight to replace Justice Kennedy. The rhetoric and viciousness will be unprecedented because the stakes are unprecedented. And lost in the middle will be the civility that Justice Kennedy brought to every aspect of a career spent championing the better angels of our nature.

This is not to say I agree with every opinion Justice Kennedy wrote. But I love Justice Kennedy. I loved working for him. I loved learning from him. I loved his intellectual curiosity. I loved his devotion to his adoring children and wife of 55 years. And I loved his life-long love affair with the law.

A few stories that came to mind when I heard the news that he was leaving:

***

About midway through my year clerking for Justice Kennedy, I arrived at 7 in the morning to deliver some bad news. At his request, I had been driving his car with my wife (long story). It had been clipped by a taxi. The damage to the car was not major. But I worried the damage to my reputation would be harder to fix. I’d dreamed for years of clerking on the Supreme Court. Now was I going to be known forever by the Justice as “that clerk who wrecked my car”?

I should have known better. Don’t worry about it, he said with a smile. It’s just a car. That’s what insurance is for. He was more concerned about my worrying than he was about the car.

***

At the end of that term, Justice Kennedy dissented in a major case, and he knew I’d want to see his dissent from the bench firsthand. “I’ll take care of it,” he said. I kept helping him with his statement’s final edits until long after all the clerks’ seats were taken. That’s when I arrived in the courtroom and saw the seat he’d reserved for me — in his family box, next to Mrs. Kennedy.

***

I once heard an unverified story from previous clerks about how Justice Kennedy created a reading list partly in response to the Arab Spring. The long list was a primer on freedom. And its audience was anyone who wanted to learn more about individual liberty, the rule of law and the values that make a democracy endure. The reading list is now online, intended as a guide for young people on freedom and democracy.  

Although the list’s origins may have had nothing to do with the Arab Spring, I like to imagine Justice Kennedy reading about a young fruit seller in Tunisia, who was marching in the streets, opposing autocracy and looking to build a better world. And what does that fruit seller need? Among other things, a reading list! 

If that’s what Justice Kennedy thought, his insight was right. But more than that, it was exceptionally idealistic. How beautiful that after three decades in our cynical capital, and in an era of shouting pundits and shock-talk DJs, Justice Kennedy thought part of the answer to global crises should be found in the words of Shakespeare, Jefferson, and Lincoln — as well as dozens more thinkers, and a few of his favorite movies (including Legally Blonde).  

***

At the end of the musical Man of La Mancha, on his deathbed, Don Quixote dies while reimagining that he is a knight errand fighting for virtue and justice. But in the original novel, it’s Quixote’s realization that he isn’t a knight that kills him. It breaks his heart.  

Justice Kennedy never tilted after windmills.  And his calling — the law, in all its complex majesty — was different than Quixote’s. But he was like the aspiring knight in this way: If Justice Kennedy had not been able to fulfill his calling, it would have broken his heart.  

It’s fortunate for him that he spent his life in the service of that most noble of callings.

And for those of us lucky to work for him and learn from him, it’s fortunate for us as well. 

I hope Justice Kennedy is looking forward to this next chapter of his life. I know he will bring to it the same civility and idealism he brought to each one that preceded it.

Dean Crawford introduces a new discussion series called Rules of the Game.
Rules of the Game

The University of Louisville is turning a page under the leadership of our exciting new President, Dr. Neeli Bendapudi. One sign of that change happened Tuesday night, June 19, in an effort in which I was privileged to be involved.

This exciting new initiative at the University of Louisville, made possible through the generosity of university supporters Matthew Barzun and David Jones, Jr., is called “Rules of the Game.” Matthew and David both deeply believe, as do I, that a great city and a great university need one another. To that end, we started this novel discussion series. Rules of the Game seeks to feature one of the university’s “leading lights or rising stars” to consider, from their individual disciplinary perspectives, the rules we live by, the rules we break, the rules we ignore, and why.

Rev. Dr. Tim Mitchell comments during the event discussionBen Chandler joins in on the discussionBridget M. Bush comments during discussion
Rev. Dr. Tim Mitchell, Rector of the Church of the Advent, (blue shirt) enters the conversationBen Chandler, Former Congressman and Executive Director of the Foundation for a Healthy Kentucky, offers an opinionBridget Bush, Landrum & Shouse and former Courier-Journal columnist, (back left) makes a comment

Assistant Professor Justin Walker Opening Remarks
Justin Walker delivers opening remarks

Tuesday night was the first iteration of this series, which took place in the Cinema Lobby of the Speed Art Museum. The guests included a former Congressman, a federal judge, the director of a major arts institution in the city and a chief of the mayor’s staff – as well as numerous other people from a wide range of careers and walks of life. It was a diverse and fascinating group. What everyone brought to the table was a curiosity and desire to explore the evening’s topic,“Rules for the Rulers: the President vs. the FBI.” The “rising star” to present was the School of Law’s own Assistant Professor Justin Walker.  Justin opened with a brilliant 10-minute presentation on the rules the “rulers” live by and the tensions their prerogatives create in our system of government; the group then had a robust hour and a half of discussion.

In short, the event showcased the intellectual vitality and energy we have at this university. I look forward to helping organize and host many such events in the future – and am again deeply grateful for the generous support and passionate commitment to this university of Matthew Barzun and David Jones, Jr.

Matthew BarzunNat Irvin, II David Jones, Jr. and Justin Walker
Matthew BarzunNat Irvin, II, College of Business,
offers a personal testimony
David Jones, Jr. (left) and Justin Walker (right)
Dean Crawford reflects on his experience at the annual Kentucky Supreme Court review during the KBA Convention.
Annual Kentucky Supreme Court Review at the KBA Convention

The KBA Convention ended for me with a marathon but rich and interesting session – the annual Kentucky Supreme Court review. The moderator was our 2004 alum, State Representative Jason Nemes. Rep. Nemes has become the Kentucky Bar’s unofficial statistician, and his breakdown of cases and decisions was enlightening. Most interesting to me was his observation that the Court’s decision show high degrees of collegiality. To be sure, there is dissent and disagreement among the Justices, Rep. Nemes observed, but far fewer of the sharp divisions we see on many federal tribunals, including, notably, the U.S. Supreme Court.

Representative Jason Nemes
Representative Jason Nemes, 2004 alum

Rep. Nemes began with some provocative and interesting comments – in line with things I have heard at lawyer events outside Kentucky. Specifically, he noted the decline in jury trials, which may be the result of increasing reliance on arbitration and mediation. Though Rep. Nemes did not say so, I know that many lawyers worry about this trend because it results in less written law – and in a legal system that relies on stare decisis that is a concern. 

Rep. Nemes also noted a worry that the Supreme Court docket increasingly was devoted disproportionately to criminal and employment law cases – again a likely result of increased reliance on out-of-court settlement by other means. For the reasons I note above, such a trend must concern us.

Space does not permit me to share the range of cases the panelists covered over two hours but suffice it to say that the review brought me back to my time in law school; the fundamentals still matter! Consider these examples:

  • Torts: in a case involving a distressing canine attack, the Court considered whether evidence of comparative fault could be introduced although Kentucky has a strict liability standard for such torts;
  • Evidence: in a family law case, The Court explored whether extrajudicial information obtained by a judge who searched a defendant’s criminal record during a recess could not be admitted because it was found to undermine the basic integrity of the judicial system;
  • Torts: in a tragic case of the suicide of a middle-school student who had been bullied, the Court considered whether there was a causal connection between the bullying and the student’s death;
  • Constitutional: the Court examined whether a university could claim sovereign immunity when faced with an employee’s claim against it.

There were many others, including some novel issues – or at least novel to me. The criminal law commentator, for example, examined cases on “prosecutorial vindictiveness” and the reach of the doctrine of “collective knowledge” among law enforcement officers. These were entirely new notions to me. Another, civil case considered whether, in a constitutional Equal Protection case, back pay could be considered an equitable remedy. Pay as an equitable remedy! All of these were reminders of the way law and legal arguments constantly evolve.

Kenyon Meyer, 1995 alum and Dinsmore partner
Kenyon Meyer, 1995 alum and Dinsmore partner

For this teacher of Property, however, the case that most interested me came at the end of the session, in a presentation by our 1995 alum and Dinsmore partner, Kenyon Meyer. Kenyon reviewed a case where a plaintiff exercised a right to purchase real property. The parties disagreed as to the amount and the case went to litigation. The Court ordered specific performance at a particular price, even though the defendant objected to the price. But the defendant-seller conveyed a general warranty deed and, the Court concluded, had not taken any one of a number of actions to preserve his objections to the sale. That is enough to keep any real estate lawyer awake at night.

At the end of the session, I almost wanted to be back in law school again – as a student.

The grandson of 1895 graduate and former U.S. Solicitor General supports our National Moot Court Team.
National moot court team thrives thanks to generous supporters

Lowry Watkins and National Moot Court Team
Lowry Watkins Jr. and the National Moot Court Team pose in front of a portrait of William Marshall Bullitt. From left, Professor Samuel A. Marcosson, Rick Whetstone, Lowry Watkins, Irina Strelkova and Katherine Tapp. Not pictured, Jake Smith.

One of the joys of my job is having the opportunity to form relationships people who have deep ties to our law school.

Last week, I had the pleasure of visiting with Lowry Watkins Jr., whose connection to the Brandeis School of Law stems from his grandfather, William Marshall Bullitt, who served as U.S. Solicitor General from 1912-1913. Mr. Bullitt graduated from the University of Louisville School of Law in 1895.

Mr. Watkins has ensured that his grandfather's legacy lives on at the law school through a variety of avenues, including the William Marshall Bullitt Memorial Lecture in Law, a Chair in Business Law, a scholarship for Kentucky natives, gifts to the Law Library and a constitutional law scholarship.

We at the law school are incredibly thankful for Mr. Watkins’ generosity, and today I want to talk about another area to which he contributes: The William Marshall Bullitt National Moot Court Team. Through an endowment, established in 2005, Mr. Watkins makes it possible for our students to travel to and participate in the National Moot Court Competition.

I spoke with Professor Sam Marcosson, who has coached the team for more than 20 years, about the impact Mr. Watkins’ gift has on the team — and on generations of future lawyers.

Professor Marcosson is proud of the team’s record of success — it has advanced deep into regional finals in six of the past seven years, often beating our ACC rivals — including Duke University School of Law — and schools like Wake Forest University School of Law and William & Mary Law School. Arguments for the regional finals are held at the Fourth Circuit Court of Appeals in Richmond, Virginia.

This year, the team comprised 2018 graduates Katherine Tapp and Rick Whetstone and rising 3Ls Jake Smith and Irina Strelkova. They worked in two-person teams to address two problems. Each team writes a brief that argues both sides of the assigned problem. This year, the problems dealt with First Amendment issues surrounding alleged retaliatory arrest and Fourth Amendment issues of government searches.

Professor Marcosson praises the dedication and hard work that this year’s team put in preparing for the competition and says that for him, having the chance to work one-on-one with students keeps him engaged in the team. Professor Marcosson, who worked for the appellate staff at the Equal Employment Opportunity Commission in Washington, D.C., before entering academia, says he also appreciates the opportunity to teach the next generation of appellate attorneys.

“I love to use what I did and the experience I gained to develop these skills with students,” he says.

And, Professor Marcosson acknowledges, none of this would be possible without dedicated supporters like Lowry Watkins Jr. He, I and our students — as well as the legal profession as a whole — owe him gratitude for carrying on his grandfather’s legacy in this practical way. 

Dean Crawford reflects on his first KBA convention.
Celebrating the impact of Brandeis stakeholders across the commonwealth

Conventions tend to be whirlwind events, with people to meet, events to attend and always more things to do than one could ever manage. This was certainly true for my first Kentucky Bar Association Annual Convention, which has been richly satisfying.

Dean Colin Crawford and Caitlin Kidd
Dean Colin Crawford and Caitlin Kidd

The last 24 hours were especially so. I began last evening at the opening reception, where I not only saw many new friends but also ran into our rising 2L Caitlin Kidd. Caitlin is at the convention as part of her summer fellowship. Caitlin was selected by Legal Services Corporation and Equal Justice Works for a Rural Summer Legal Corps student fellowship. She is one of 29 law students nationwide, and two from Brandeis (the other is Lauren North, also a rising 2L). Caitlin’s summer is focused on launching the Justice Bus, a mobile, “pop-up” legal office sponsored by Legal Aid of the Bluegrass. Caitlin and her LAB co-workers will be taking the bus to 10 rural counties in Kentucky to provide free legal assistance to underserved individuals in those areas.

Legal Aid of the Bluegrass Justice Bus
From left, Dominic Donovan, Caitlin Kidd and Joshua Fain with Legal Aid of the Bluegrass' Justice Bus.

The project reveals the ingenuity of lawyers as they seek to find novel ways to provide justice access, and I wish them the greatest success. 

Then I headed to our alumni reception, generously hosted at the Lexington offices of Bingham Greenebaum Doll. We had more than 50 alums and friends show up and it was a great chance to share with them what is happening at the school of law. It could not have been possible without the organizational efforts of 2014 alumus and Bingham attorney Aaron Marcus and 1988 alumna Bonnie Kittinger.

Michael Whiteman
Michael Whiteman

Thursday, June 14, began with an extended breakfast with the other area law deans, including Dean David Brennen of UK, Interim Dean Verna Williams of Cincinnati and NKU Interim and our 1994 alum Michael Whiteman.

I then rushed to a terrific panel moderated by outgoing KBA President Bill Garmer on the judiciary, entitled “A Co-Equal Branch-Judicial Selection and Independence in an Age of Anxiety.” The panel included my colleague Professor Sam Marcosson and his frequent sparring partner, Professor Paul Salamanca from UK. These two constitutional scholars debated the status of the judiciary in President Trump’s US — Sam from the left and Paul from the right. It was a spirited and very respectful debate, as the best legal argument is.

Chief Justice Minton
Chief Justice Minton

Next came a luncheon for the Kentucky Bar Foundation. The KBF luncheon was opened by Supreme Court Chief Justice John D. Minton Jr. The event began with the announcement of the new KBF Life Fellows, including my colleague Professor Les Abramson.

The KBF event not only announced the award of a generous scholarship to each of the law schools in the Commonwealth but also made a $5,000 award to the Central High School Partnership run in conjunction with the school of law by my colleague Professor Laura Rothstein. We at Brandeis are very proud of the Central High Partnership and of the work of Professor Rothstein and others like Professor Cedric Merlin Powell, Professor Enid F. Trucios-Haynes and Professor Justin Walker, who help teach in the pipeline program.

Harvest Johnston and Guion Johnstone
Harvey Johnston and Guion Johnstone

The host was our 1972 alum Harvey Johnston, from Bowling Green. Harvey and his wife, Sarah, have been generous supporters of the school of law and his tenure as KBF head has been distinguished by fundraising success. Under Harvey’s stewardship — having raised more than $2 million, all of which gets distributed to worthy entities across the commonwealth. During his tenure, Harvey worked closely with KBF Executive Director Guion Johnstone, a 2011 Brandeis grad.

The evening’s banquet brought more kudos for a distinguished alum, in this case the Chief Justice’s Special Service Award for 1968 graduate Grant Helman. Since 1982, Grant has been chairman of the Character and Fitness Committee, administering the oversight of character and fitness evaluations of generations of Kentucky lawyers.

Grant Helman and Colin Crawford
Grant Helman and Colin Crawford

In short, the past 24 hours made me proud of the variety of ways in which some of our stakeholders — students, faculty, and alums — are serving the commonwealth and the profession. Brandeis is a key player in the health of the rule of law and professional service in Kentucky and beyond.

Professor Ariana Levinson shares her experience testifying at a Supreme Court Rules Hearing.
Will Kentucky adopt a new hearsay exception?

On May 13, I attended my first meeting as a member of the Commission on Continual Judicial Education. The Chair, Justice Bill Cunningham, arrived slightly late because he had been delayed at a Supreme Court Rules Hearing held here at the KBA Convention. Justice Cunningham said that he could scarcely remember a proposed rule that attracted more comment and more diverse points of view on the proposed change to Commonwealth evidence rules. I was also told by another alum, a circuit court judge, that a Brandeis colleague had testified in favor of the rule. Therefore, I was extremely pleased to learn from my colleague, Professor Ariana Levinson, that she had testified and would be willing to share her experience in a guest blog post. Here is what Professor Levinson had to say.


Terrance Sullivan
Terrance Sullivan testifies at a Supreme Court Rules Hearing held at the June 2018 KBA Convention.

Thank you to Dean Crawford for letting me guest blog about the Supreme Court Rules Hearing at the KBA Annual Convention. Comments on an interesting, and apparently controversial, proposal to amend the Kentucky Evidence rules to add KRE 807, were heard by the Court. The proposed rule provides an exception to the prohibition on hearsay evidence contained in KRE 802. The exception would make admissible, in certain circumstances, out-of-court statements by a child who was physically or sexually abused, about the abuse. You might wonder what I, a law school professor, was doing at this hearing.

I have been teaching Evidence at the University of Louisville Brandeis School of Law since 2011. This past semester, we had a particularly interesting time following the enactment of this hearsay exception through the legislative process. A student in my Evidence course, Samantha Wright, had the wonderful opportunity to work with Kentucky Youth Advocates (KYA) over the semester through a Cooperative Consortium for Transdisciplinary Social Justice fellowship. KYA is a non-profit that advocates for policies and programs that benefit youth. Samantha was the first legal intern the KYA has had, and we are hopeful that future students interested in youth advocacy will also be able to intern with them. Throughout the semester, Samantha reported to the class about the work KYA was doing promoting the exception.

Samantha had the good fortune to be working closely with Terrance Sullivan, who is a 2012 Brandeis graduate. Terrance was inspired by Professor Sam Marcosson to find a position that involved constitutional law. After working at Metro Council, he went on to do work on legislative committees at the Kentucky Legislature, with one of his committees being Election & Constitutional Amendments, and eventually became the policy director at KYA. He loves his job advocating for youth and is happy to speak with any Brandeis law students about alternative career paths that differ from litigation. Terrance and Samantha invited me to speak about the proposed rule change, and that is how I ended up at the hearing.

In preparation for the hearing, another student, Natalie Nelson, assisted me in research about other states that have similar hearsay exceptions. She found the subject matter very interesting and is now following the process of the proposed rule along with us.

At the hearing, I spoke about how the proposed rule 807 incorporates the same level of necessity and indicia of reliability as the existing hearsay exceptions. Terrance provided testimony that focused on the reliability of children’s statements of abuse, the inapplicability of the Confrontation Clause to the statements encompassed within the proposed exception, and the similarity of an Ohio hearsay exception under which an admitted statement of child abuse was upheld by the Supreme Court. He mentioned my colleague Professor Cedric Merlin Powell’s comments, during the Evidence course Terrence took, about the dying declaration exception. He concluded by emphasizing this exception would not be a hammer or screwdriver in a prosecutor’s toolbox, but rather that one special tool that is used only infrequently but is absolutely necessary in that instance (think of IKEA furniture).

I am sure in addition to Terrance, other Brandeis graduates spoke both in favor and against the proposed rule. I was impressed at the diversity of perspectives and the quality of the advocacy, and am proud to be connected with such fine alumni and attorneys.

The Supreme Court is taking written comments through the end of July. The Evidence Rule Commission is chaired by Honorable Justice Venters.

Dean Crawford reflects on information shared at a Department of Public Advocacy event.
Lawyers' role as advocates for the unjustly accused

I am at the Kentucky Bar Association Annual Convention in Lexington this week. My time here began with a reminder of how important lawyers are to protecting the rule of law and the principles we most value.

This basic lesson came home to me yesterday at the Department of Public Advocacy’s annual celebration and recognition lunch. A bright spot for the Brandeis community was the moment when our 1995 alum Chip Rogalinski received the DPA’s In Re: Gault award (in memory of the 1967 Supreme Court case that awarded minor criminal defendants many of the same due process rights as adults); Chip is a trial attorney in the DPA's Bullitt County Trial Office.

The luncheon also provided powerful reminders of the reality that while our system usually punishes the guilty, it can also can fail us – and that lawyers serve to protect the rights of those unjustly accused. This was amply demonstrated in the moving testimonials from wrongly accused citizens who spent years of their lives serving sentences for crimes they did not commit. The work of the Kentucky Innocence Project in helping to reverse these convictions is impressive and important.

The event was closed by Justice & Public Safety Cabinet Secretary John Tilley. Secretary Tilley lamented the fact that Kentucky, unlike most states, relies not just upon statewide institutions but also upon 76 “full-service jails” to house its incarcerated population – and that many of them are 30 percent above capacity. Secretary Tilley described shameful conditions, acknowledging service delivery failures such as the fact that some inmates sleep on floors because there is insufficient bed space. With 25,000 people incarcerated, Secretary Tilley said that Kentucky has the ninth highest rate of incarceration in the country.

There is important work for lawyers here, too, as advocates for more humane prison conditions, and to work with other stakeholders in the Commonwealth to reduce the size of the prison population. These are not easy challenges, but lawyers will be central to addressing them.

Professor Justin Walker shares his recent experiences as a guest lecturer in Germany.
Guest post: A wild ride to Germany, reflections on federalism — and more

This week, the Dean’s blog features a wildly eccentric and thoroughly enjoyable guest post from my colleague Justin Walker. In it, he takes the reader on an unexpected, wild ride with him through Washington, D.C. and on to Mainz, Germany, offering an unexpected series of observations about separation of powers, federalism and comparative law in the process. Enjoy!


May 27 to May 30, 2018

Just before she opens our plane’s door on the Dulles tarmac, I tell the United attendant, “Our flight to Germany leaves in 10 minutes.”

With skepticism, and the tone of Commander Spock, she says, “You should run.”

The Vulcan didn’t know that for me, that’s a lot easier said than done. I mean, sure, I love to run when my great friend and favorite running buddy is up for some intervals — or maybe a 5K. And when I’m stuck on my own, I sometimes spin on our surprisingly addictive Peloton. But … I rarely full-out, no-holds-barred, Hey-John-Edwards-there’s-mirror-over-there sprint.And when I try, I look like a malnourished hunchback having a heart attack while nursing a knife wound across the Sahara.

So it’s less than fortunate that I find myself sprinting across two interminable terminals, resting only on a monorail between them, praying that, in spite of my first flight’s three-hour delay, my wife, Anne, and I will still catch up to the last available red-eye to Frankfurt.  

We don’t.  

Sort of.

Me, just arriving at the gate, gasping for breath, staring at our Boeing 777: “The plane hasn’t left the gate. It’s right there!”

Soulless gate agent, shaking his head: “The door is shut.”

Me: “Why can’t you open the door???”

Kafka character: “I’m sorry.”

He isn’t. But at least he doesn’t drag me down the aisle.

Or murder my dog.

I tell myself he isn’t a bad guy. He just works for a bad airline.  

And I try to remind myself of a Chinese folk story I heard last week, called “Who Knows What’s Good or Bad.”

“It’s a story of a farmer and his horse.

“One day his horse runs away. And his neighbor comes over and says, to commiserate, ‘I’m so sorry about your horse.’ And the farmer says, ‘Who Knows What’s Good or Bad?’ The neighbor is confused because this is clearly terrible. The horse is the most valuable thing he owns.

“But the horse comes back the next day and he brings with him 12 feral horses. The neighbor comes back over to celebrate. ‘Congratulations on your great fortune!’ And the farmer replies again: ‘Who Knows What’s Good or Bad?’

“And the next day, the farmer’s son is taming one of the wild horses and he’s thrown and breaks his leg. The neighbor comes back over: ‘I’m so sorry about your son.’ The farmer repeats: ‘Who Knows What’s Good or Bad?’

“Sure enough, the next day the army comes through their village and is conscripting able-bodied young men to go and fight in war, but the son is spared because of his broken leg.

“And this story can go on and on like that. Good. Bad. Who knows?”

Of course, at the airport, typing an email to the wonderful lady in Mainz expecting me to start teaching a two-day class tomorrow morning, I’m not feeling very Zen. I’m mad my flight was late. I’m mad they wouldn’t open the jet bridge door. And I’m mad the next available flight means I’m going to get to Mainz on Monday at 4 p.m. — six hours after my class is supposed to start and three hours after it’s supposed to end.

Good. Bad. Who knows? I know! It’s terrible!

But then things start to look up.

Ines Gillich, the wonderful lady in Mainz, emails me that I can reschedule Monday’s class for Tuesday!

And then the rental car turns out to be a Mercedes!

And then the view from our AirBNB is breath-taking!

And the day after class we visit a castle that inspired the Magic Kingdom’s.

Which has another great view…

Followed later by a ride down a “summer luge” track…

And then Munich.

Munich

Every stop was beautiful. And so was every moment in between.

But nothing was more beautiful to me — or more fun — than teaching an entire course about federalism and separation of powers in a single day!

Six hours straight... A packed, un-air conditioned classroom… Students with no background in American law… And me with 230-plus years of legal history to cover… What could go wrong?  

I was once in a college class where the professor began his lecture on the Civil War by starting with Magna Carta.  For Tuesday’s students, I spared them; we didn’t start that far back. But we zoomed through a lot of other ground: the Articles of Confederation; the Constitutional Convention; Articles I, II, III, and VII; The Federalist Papers; the Bill of Rights; Marbury; McCulloch; the Court Packing and “Switch in Time”; Farmer Filburn; Toker Raich; taxes and penalties and mandates and Medicaid and John Roberts and nuclear waste.

Along the way, I asked each of the 30 students a pointed, cold-called question about the student’s opinion, perspective or reaction. They came from different countries and different backgrounds, and I found the conversation more and more exhilarating as we returned again and again to three questions ingrained in the Constitution’s structure:

  • Why have federalism?
  • Where’s the line between judging and legislating?
  • What of the tension between a Congress of limited powers and a Constitution that sometimes enumerates those powers in broad terms?

By the end of the class, I was hot, exhausted and ready for what promised to be a thought-provoking coffee with Mainz’s Professor Udo Fink. But I was impressed at how engaged the students had remained. “You didn’t fall asleep,” I said, “and you didn’t even throw tomatoes at me!”  

And so, I didn’t want the class to end. Not even after six hours.  And especially not until I shared with my students-for-a-day my favorite quote about federalism — a Justice Kennedy vision, inspired by thinkers from Lao Tzu to Oppenheimer:

“The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it. It is appropriate to recall these origins, which instruct us as to the nature of the two different governments created and confirmed by the Constitution.”

“And that’s what Christmas is all about, Charlie Brown.”

Charlie Brown

As I left Mainz, Pink on the stereo, rental car flying down the Autobahn at speeds I wouldn’t dare try in America, and me chatting with Anne about our day, wondering and laughing about our daughter, Isabella, and thinking nothing of my missed flight and late arrival, I felt blessed.  

Blessed to teach.

Blessed to travel.

And blessed to have a return ticket to my favorite city in my favorite state in the greatest country in the world.

Good. Bad. Who knows?

I know.

It’s beautiful.

What do innovation and entrepreneurship have to do with worker-owned cooperatives?
A look at the ways Mondragon encourages innovation

Professor Ariana Levinson is sharing Dean Crawford's blog for the week of May 21, 2018. She is blogging from a research trip to Mondragon, Spain.

See her previous posts:

May 21, 2018: First day in Mondragon, Spain

May 22, 2018: What does Wakanda have to do with Mondragon?

May 23, 2018: A cooperatively owned university

May 25, 2018: Inside Mondragon's labor-management relations

May 29, 2018: #metoo #yotambien #niere


Ariana Levinson in the lobby of Saiolan
Ariana Levinson in the lobby of Saiolan, a public-private partnership between the Mondragon Company and the Basque government.

The final day of the Mondragon Seminar and Tour, we toured the city with a historian and visited the Business and Administration School of Mondragon University in Onati. We earned certificates for completing the course! I have learned as much from the others attending the Seminar — who range from the executive director of the Canadian Worker Co-operative Federation to the director emeritus of Pathways to Peace, an international peacebuilding and educational center, to two educators from Living Web Farms, a non-profit organic farm in North Carolina — as I have from the workshops, and we covered an amazing amount of material in one week.

Because innovation is so critical to the Mondragon Company, I am going to write about it today, even though it is not within my field of expertise. I know entrepreneurship is a subject of interest to many in the Louisville community, including those of us at the law school.  

The Mondragon Company’s structure as an integrated network of co-ops enables it to contribute significant resources to innovation and development. One of the first entities formed was Laboral Kutxa, the cooperative bank that has provided a source of funding for many of the co-ops created later. Today, Laboral Kutxa has a foundation, Gaztempresa, that helps hundreds of people start small businesses each year, assisting with developing a solid business plan, obtaining financing and implementing the business successfully over the first year or two. Within each co-op, many have R&D departments. Then each profitable co-op provides 10 percent of its gross profits to Mondragon Investment Fund, which is an entity that provides guarantees to encourage the co-ops to make loans to entrepreneurs or new business ventures within the co-ops. Each co-op also gives 2 percent of gross profits to education and research non-profits. Mondragon University offers a LEINN degree, which is the first degree in Europe for Leadership and Entrepreneurial Innovation.  

Coop in Mondragon
A road sign points to a coop, Fagorand.

Our most intensive exposure to this culture of innovation was our visit to Saiolan, which is a public-private partnership between the Mondragon Company and the Basque government. It is one of four business innovation centers in the Basque Country; the other three are public entities. The Center helps co-ops that are diversifying bring new products to the market. It also identifies companies outside of Europe with patents on innovative products and assists co-ops to partner with those companies to manufacture and market the product in Spain and Europe. The Center promotes awareness of and training in entrepreneurship and provides project tutoring, feasibility studies and other services for companies. The Center includes a prototype lab. It fosters regional cooperation and helps companies that are competitors work as cooperators to develop new business initiatives.

The Basque region has the highest percent of R&D of any region in Spain and the lowest economic inequality. As you can see from the photos, hard work and innovation are basic precepts of the Mondragon co-ops and the Basque government.

Father Arizmendiarrieta answers the question of what innovation has to do with worker-owned cooperatives by noting the two are inseparable. “A cooperativist is a worker but also an entrepreneur.”