What ideology would I be revealing if I signed up for “Understanding Islam”? If I went to “Bias, What Bias?”, is there a presumption (rebuttable?) that I believe there is no bias? Just who is doing the presuming and taking notice and why the heck would I care?
January 12, 2004
A Revealing Focus on Minnesota’s Anti-Bias MCLE Fight
The National Law Journal has an article today on the fight in Minnesota over mandtory anti-bias CLE courses, which we’ve been discussing. (NLJ, “A battle over anti-bias CLE courses,” 01-12-04, subscription required) Opponent Scott Johnson at Powerline, a/k/a The Big Trunk, has posted the article on his weblog, here. It’s worth a look. Big Trunk says:
“The story is not illuminating, but it is probably useful to have the national press put a spotlight on the case, and I believe there will be additional attention focused on the story in the next week or two when Fox News broadcasts a segment on it.”
In reading the article, I was struck by one strange argument presented by Peter Swanson, corporate counsel at TCF National Bank in Minneapolis, who submitted an amicus brief in support of Elliot Rothenberg’s petition against the Rule. Swanson points out that, unlike Minnesota, California allows self-study to fulfill its anti-bias requirement and therefore “does not compel attorneys to reveal their ideology by choosing a particular course.” (emphasis added) What a weird, unfortunate notion: it assumes that an attorney would only choose a course whose title/syllabus coincided with his or her existing beliefs on the issue of bias. It also assumes that we each have an “ideology” about bias (or anti-bias).
Whatever happened to intellectual or social curiosity? To having the courage of your own convictions or being open to the ideas or experiences of others? To taking a devil’s advocate posture, eager to ask the presenters tough questions? I mean, they are lawyers and adults, right? Yet, they’re worried about being “indoctrinated” and “revealing their ideology”. As I might have said in my rebel days: Reveal This! Tonight, my main reaction is: Kids, Stop Whining!
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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 powerline.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.
Comment by Peter Swanson — February 14, 2004 @ 1:15 pm
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 powerline.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.
Comment by Peter Swanson — February 14, 2004 @ 1:15 pm
The correct powerlineblog.com link is
http://www.powerlineblog.com/archives/005577.php
This outlines the Minnesota Supreme Court’s unwillingness to participate in the Federalist Society seminar.
Comment by Peter Swanson — February 22, 2004 @ 10:23 am
The correct powerlineblog.com link is
http://www.powerlineblog.com/archives/005577.php
This outlines the Minnesota Supreme Court’s unwillingness to participate in the Federalist Society seminar.
Comment by Peter Swanson — February 22, 2004 @ 10:23 am
Thanks for the link. And, your point is?
Comment by David Giacalone — February 22, 2004 @ 12:26 pm
Thanks for the link. And, your point is?
Comment by David Giacalone — February 22, 2004 @ 12:26 pm
I misstated the link for Powerline in the first post. The second post corrected that.
The point of the first post, inter alia, is that some individuals may choose not to attend a seminar of a certain ideology. One reason may be that they disagree with that ideology. Another reason may be that they agree with the ideology, but choose not to be identified with the course sponsor or the content of the course. Whatever the reason for an individual’s reluctance, the fact remains that a significant number of attorneys are reluctant to either a liberal or a conservative seminar. The presence of one or two conservative options does not cure the constitutional defect.
Now we find out that all seven justices of the Minnesota Supreme Court refuse to attend the lone conservative alternative in 2004. On some level, even the members of the Court are acknowledging that approving conservative courses is an inadequate solution.
If it is no big deal to attend a conservative seminar (thus countering the claim of undue burden on dissenters), then why is no Minnesota Supreme Court justice willing to do so?
Comment by Peter Swanson — February 23, 2004 @ 3:36 pm
I misstated the link for Powerline in the first post. The second post corrected that.
The point of the first post, inter alia, is that some individuals may choose not to attend a seminar of a certain ideology. One reason may be that they disagree with that ideology. Another reason may be that they agree with the ideology, but choose not to be identified with the course sponsor or the content of the course. Whatever the reason for an individual’s reluctance, the fact remains that a significant number of attorneys are reluctant to either a liberal or a conservative seminar. The presence of one or two conservative options does not cure the constitutional defect.
Now we find out that all seven justices of the Minnesota Supreme Court refuse to attend the lone conservative alternative in 2004. On some level, even the members of the Court are acknowledging that approving conservative courses is an inadequate solution.
If it is no big deal to attend a conservative seminar (thus countering the claim of undue burden on dissenters), then why is no Minnesota Supreme Court justice willing to do so?
Comment by Peter Swanson — February 23, 2004 @ 3:36 pm
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thank you for this blog http://www.bignews.com
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