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Cubans: The Friendliest People on Earth? May 19, 2015

Posted by Afflatus in Uncategorized.
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On December 19, 2014, I flew from Miami to Habana, Cuba, in a charter plane on a trip led by Insight Cuba, an American non-profit that leads legal but expensive tourist trips to Cuba in full compliance with U.S. O.F.A.C. Treasury Department regulations.

This trip was very special for me. I departed two days after my last law school exam of the semester, and I was traveling alongside two of my favorite travel companions: my lovely parents! The trip was also special for another reason: we were departing two days after President Obama and Raul Castro announced their historic agreement to normalize diplomatic relations and begin the long road to U.S.-Cuba friendship.

Cuba -- an alluring paradise awaits!

Cuba — an alluring paradise awaits!

The trip was wonderful and exceeded my expectations in all regards. I spoke Spanish all day, played pick-up futbol* every day, and learned about the political, socio-economic, and cultural issues in Cuba as we met with artists, professors, young people, and civic society actors, et al. Upon my return to the States, I drafted the following blog post, which I am only now getting around to finalizing. Of all the things in Cuba that left me completely incredulous, I was particularly blown away by the friendliness of the Cuban people.

The friendliness of the Cuban people is hard to overstate; their friendliness — to each other, and to tourists — reflects the best of humanity. I’ve traveled far and wide, and travelers often say “the people in [X country] are so friendly” or “they are the friendliest people in the world.” I’ve said the latter superlative myself, probably about Peruvians in 2008, then South Africans in 2010, then Nicaraguans in 2013, and then the Thai in 2014 (where a cab driver gave me his banana once it became clear we were going to be sitting in traffic for the next hour or two due to political protests).

I thought the superlative of “friendliest people in the world” was true every time I said it, but now it really think Cuba tops them all! Two particular moments from my Cuba trip left me and my-cynical-self in near-disbelief at the extent of the Cuban kindness.

One time, as our group was trying to cross a road, only 5 of us had time to cross before a car came whirring around the bend. As cautious, American pedestrians in a foreign country, we stopped to allow the car to pass. But, as we looked up, the car had in fact slammed on his breaks to allow some of us to cross. Upon realizing there were many more of us, he happily shifted into neutral, smiled, and waved us all across as the remaining thirty tourists (largely elderly) ambled across the road. Cars piled up behind him. But no honks, just patience. Imagine this scene in New York City, where horn blare ad nauseam. Since when do cars go to this length for pedestrians!? The whole street crossing only took about two minutes, but a driver who previously had been driving quite fast transformed into a patient, smiling Cuban host. For me, this moment reflects the welcoming hospitality of the Cuban people to tourists.

Cigars taste better while walking and relaxing in the pastoral Veñales, Pinar del Rio -- the epicenter of the Cuban cigar trade.

Cigars taste better while walking and relaxing in the pastoral Veñales, Pinar del Rio — the epicenter of the Cuban cigar trade.

The second moment was when my father and I were walking in a dark, poor-looking neighborhood at about 10pm, yet we felt absolutely no risk of theft or other crime. People looked at us, curiously, from the shadows of their stoops and as they strolled by us. My father and I didn’t know exactly where we were, having only a vague sense of how to get where we were going. We were both carrying iPhones — each worth more than 1 year’s salary of the average Cuban — as well as some cash (in U.S. dollars, not the local currency for Cubans, pesos**). Regardless, I was virtually certain that we were completely safe. And I was right. Ultimately, I asked and received directions three times from strangers who smiled and warmly touched my arm as they explained where to go. Having had the fortune to travel to over 25 foreign countries, I’ve never felt so safe anywhere as I did in Cuba. The reasons for the amazingly low crime rates in Cuba are complex and multi-faceted — a subject I would love to write about when the time presents itself.

In conclusion, it doesn’t matter which country’s people are truly “the friendliest.” People all across the world represent the best of humanity — kindness, compassion, and service. Love. Traveling reminds us of the common threads that bind all of us humans together, regardless of nationality, skin color, religion, or creed.

*Baseball, not soccer (futbol) is the preferred sport in Cuba, but soccer is catching on!

**Cuba has two currencies — perhaps the height of the cuban idiosyncrasies — one, pegged to the USD, is for tourists and others who work in the tourist sector, and the other is for locals or those that work for state-run enterprises, which is still something like 70% of the economy. Apparently, the government is planning to phase out the two currencies and switch to a more sane, less-distorting currency model.

Here are some additional photos I took from my trip. As with the above photo, all rights are reserved:

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Mom and I trying to look cool. Top right could be from the 1950’s, but it’s just a typical scene in Cuba 2015.

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Me with a super friendly guy hanging out outside the state-run marketplace. I HAD to talk to him because of his outfit. We hit it off.

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Me with our trusty guide, Rene, (R) and our amazing bus driver, Lazaro (L). Great guys. I hope they are well!

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Random cab driver who agreed to pose with his car. The model and year he recited to me with gusto!

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Two women, showing typical Cuban pride and joy. Haircuts are less than 40 cents (USD).

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Vanales, where the best tobacco in the world comes from (sorry Winston-Salem). These rock formations — called Magotes — are rich in minerals that have seeped into the soil over thousands of years, creating the most fertile soil. The word “Cuba” itself means fertile land, in some native language that proceeded Spanish.

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Love my mother. She’s cooler than I’ll ever be.

Downtown Habana.

Downtown Habana.

The Malecón in Havana -- picturesque, historic, and the essential Cuban communal hang-out spot. This twenty foot wide esplanade rests between the city's main thoroughfare for cars and the island's northern coast with the Florida Strait. The Malecón runs for 5 miles and at night becomes FILLED with fisherman, families, friends, and lovers. Strolling down the Malecón on our last night in Cuba, my dad and I were lucky enough to catch a magnificent sunset. I, of course, had to bust out a handstand.

The Malecón in Havana — picturesque, historic, and the essential Cuban communal hang-out spot. This twenty foot wide esplanade rests between the city’s main thoroughfare for cars and the island’s northern coast with the Florida Strait. The Malecón runs for 5 miles and at night becomes FILLED with fisherman, families, friends, and lovers. Strolling down the Malecón on our last night in Cuba, my dad and I were lucky enough to catch a magnificent sunset. I, of course, had to bust out a handstand.

Love Chess: A Game That Builds Great Skills May 18, 2015

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Chess is a wonderful game! At once pleasurable and edifying, chess teaches important life skills: concentration, cost-benefit analysis, decision-making, thoroughness, and composure. Chess, like so many great games, brings out the best in the human mind! I hope to remain a lifelong player.

The complexity of the game is apparent. Chess challenges players with an almost infinite number of possible combinations of moves; so a chess player will face novel and complex positions in the opening, middle-game, and end-game situations.

More specifically, though, chess develops skills such as concentration, practicing cost-benefit analysis, and shrewd decision-making ability. A good chess player must understand the strengths and weaknesses of each player’s position — at every stage in the game. And there are multiple moving parts, making constant reevaluation necessary.

Knight attack!!!

Knight attack!!!

These skills play out in both a tactical and strategic manner. In many positions, an opponent’s move presents a problem that must be immediately addressed. In a timed game, it’s imperative to quickly isolate the problem at hand, discern various alternatives to address that problem, analyze the pros and cons of each alternative, and finally to select the best one (a process that may take place in as few as 5 seconds). But these tactical considerations should not be simply reactive; instead, each move should fit into the larger strategy of checkmating the opponent’s king. A good player retains simultaneous focus on both the tactical and strategic front — a challenging task!

Finally, chess teaches thoroughness and composure. Even after a player believes she has selected a great move, it is critical for her to thoroughly analyze possible counter-moves the opponent may make. In addition, she should consider potential weaknesses the move may spawn — a step easily overlooked. Chess also teaches a player to emotionally adjust to a bad situation. After I make a mistake, I try to regain my composure, control what I still can, and move forward with renewed rigor.

Attentiveness, cost-benefit analysis, decision-making ability, thoroughness, and composure: these are important skills for lawyers, indeed for all professionals. I hope to continue developing these skills, and I’m convinced chess can help.

Texas’ Voter ID Law and Section 2 Litigation September 21, 2013

Posted by Afflatus in History, Politics, Uncategorized.
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The story of Texas’ Voter ID law is fascinating. Ever since 1975, Texas was required, under the Voting Rights Act (VRA), to seek approval from the federal government to any changes the state legislature might want to make to its election laws. The purpose of this law was an important one: to ensure that jurisdictions with a history of voting discrimination provide all of its citizens with equal access to the voting booths. Yet in June 2013, the Supreme Court struck down Section 4(b) of the VRA, which stipulated the formula for determining which jurisdictions would be subject to federal “pre-clearance” of proposed voting changes under Section 5 of the VRA. By determining that the Section 4 formula was unconstitutional, Shelby rendered the Section 5 “pre-clearance” regime inapplicable and unenforceable (until Congress updates the formula). So now, Texas may change its voting laws at will.

In 2011, the Texas legislature passed SB 14. It is one of the strictest photo ID laws in the nation, requiring voters to present photo identification from a very limited list before being allowed to vote. The law allows Texans to vote with a Texas concealed handgun license, but not with an ID from a public university or a tribal identification card. (See the Brennan Center’s complaint in its challenge to the law, especially paragraphs 41-45, for how the law will discriminate against minority voters.) In August 2012, in the pre-clearance proceedings, the U.S. District Court in DC rejected the law, finding that it would almost certainly “lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” The appeals process in this lawsuit was pending when the Supreme Court this summer struck down portions of the VRA, removing Texas from the pre-clearance requirement. Two days after the Supreme Court ruled on the VRA, it instructed the District Court to dismiss the pending litigation against Texas, allowing the State to do as it pleases.

Equal Justice Under Law?

Voting equality groups like the Brennan Center launched lobbying campaigns, and Congressmembers began imploring their colleagues to update the formula as the Supreme Court suggested Congress should do.

In addition to those advocacy efforts, lawyers at the Department of Justice, the NAACP, MALDEF, and elsewhere, started litigating to enforce the equal opportunity to vote. Though the Supreme Court had eliminated Section 5 pre-clearance as a tool, there was still Section 2.

Section 2 of the Voting Rights Act of 1965 prohibits voting practices or procedures that discriminate on the basis of race, color, or certain minority-language memberships. Section 2 is a creative alternative to Section 5 for enforcing equal access to voting booths, but it is a poor substitute. First, it is an ex post approach rather than ex ante — the voting discrimination must have already occurred. Second, it is far more costly and litigious. Third, the burden of proof is flipped: rather than States being required to prove, under pre-clearance, that a proposed law is nondiscriminatory, plaintiffs are required to prove that the law is discriminatory. These are serious drawbacks, and, while I acknowledge that there were problems with pre-clearance regime, I’m of the opinion that unconscionable voting discrimination is already occurring across America as a result of the change in the regulatory structure and enforcement due to the Supreme Court’s VRA decision.

As stated before, the burden of proof to show that Section 2 has been violated is on the plaintiff, and the threshold is high. Plaintiffs must show that, in the context of the “totality of the circumstance of the local electoral process,” the standard, practice, or procedure being challenged had the result of denying a racial or language minority an equal opportunity to participate in the political process. This is a statutory standard deriving from the 1982 reauthorization of the Voting Rights Act.

The Senate Judiciary Committee in 1982 issued a report in an attempt to provide guidance to courts when interpreting whether, in the totality of the circumstances, an election law has violated Section 2 of the Voting Rights Act. The factors the Senate suggests are:

  1. the history of official voting-related discrimination in the state or political subdivision;
  2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
  3. the extent to which the state of political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group, such as unusually large election districts, majority-vote requirements, and prohibitions against bullet voting;
  4. the exclusion of members of the minority group from candidate slating processes;
  5. the extent to which minority group members bear the effects of discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process;
  6. the use of overt or subtle racial appeals in political campaigns; and
  7. the extent to which members of the minority group have been elected to public office in the jurisdiction.

The Judiciary Committee pointed out that this list is neither exclusive nor comprehensive. However, plaintiffs need not prove every factor, or even a majority of them. It’s obvious that there is a tremendous amount of room for courts to interpret this how they please.

Lawsuits raising claims under Section 2 of the Voting Rights Act are few and far between — depending on your definition, there are around 35. In the wake of the Supreme Court decision, the leading Section 2 lawsuits are a group of three related cases challenging the same Texas Voter ID law that the District Court in DC reviewed within the Section 5 procedure, one of which was brought by the U.S. Department of Justice. Read more about the latest of these three cases, NAACP v. Steen, here.

The complaint in NAACP v. Steen is complex because what it seeks to prove — that a voter ID law will disproportionally impact, and thus discriminate unconstitutionally against minorities — is a very difficult proposition to prove in court. It’s also interesting because of the back story of Taxas’ voter ID law in District Court, and because of the Supreme Court’s recent decision on the VRA. As a law student learning about argumentation, it’s interesting to see the strategy adopted by the complaint, and which of the Senate’s factors listed above the complaint chooses to stress.

If you’re familiar with Voter ID laws generally, jumping straight to Paragraph 45 might be a good idea. Paragraph 50, listing the historical voting discrimination perpetrated by the State of Texas, is absolutely appalling.

Ultimately, the complaint alleges that the law has both a discriminatory result and a discriminatory purpose. It also alleges that the law violates the Fourteenth and Fifteenth Amendments of the United States Constitution. It was filed 4 days ago in U.S. District Court for the Southern District of Texas. I’m very curious to watch this unfold!

Oil Futures Rise on Fears of U.S. Attack on Syria September 9, 2013

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Today there is heightened tension and risk of instability in the Middle East. (Oil futures are already elevated.) This development is not because Syria has used chemical weapons, but because the United States is threatening — and looking increasingly likely — to attack.

I still cannot understand why President Obama believes this is a good idea.

My Response to the “Red Line” Argument Re: Syria September 9, 2013

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The “red line” argument vis-a-vis Syria goes something like this: “Obama said the use of chemical weapons by the Syrian regime would constitute crossing a “red line” of the United States’. Because of this, the United States must attack Syria’s chemical weapons depots. To do otherwise would render the U.S. a feckless, paper tiger, embolden Assad and other dictators to use chemical weapons by permitting a lack of accountability, and finally it will weaken the U.S. position towards Iran.”

Here is my response:

Just because Syria crossed a so-called “red line” for the United States, why must President Obama then necessarily respond with a military attack? There are other ways to provide accountability for this horrific atrocity the Syrian regime has perpetrated. Why not tighten sanctions? Ambassador Power and other officials in the Obama Administration don’t say. Why not respond in a way consistent with international law? The United States has decided not to attempt to go to the UN (there are decent reasons for this, of course. But still!). Then, even if one assumes the U.S. chooses to disregard international law in a supposed effort to uphold international law (indeed), why not allow UN inspectors to finish their work discovering evidence prior to attacking with military force?

I don’t understand why crossing a fictitious “red line” (which we supposedly have evidence Syria actually already crossed twice prior to this recent, large-scale chemical attack), necessitates a rapid military response in violation of UN rules. Furthermore, how far does this supposed “red line” extend. What if, in 2014, there is an uprising in North Korea or China and the government there uses chemical weapons to put down the rebellion?

Finally, even if one finds the “red line” argument more convincing than my rebuttal, I still believe a “realist” analysis of the underlying interests at stake for the United States in the Middle East — counter-terrorism and oil price management — will be better served by not attacking Syria. In my opinion, this “national interest” analysis should be finally devastating to any arguments in favor of striking.

Disappointed and Dumbfounded by Obama’s Syria Policy September 8, 2013

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Since last writing, my views about the normative question pertaining to Syria have changed dramatically. Through a bit more reading on the subject, thinking through my own views further, and discussing with friends, I’ve come to the conclusion that it’s a very poor decision to conduct even limited strikes against Syria.

Listening to United States Ambassador to the UN Samantha Power speak at the Center for American Progress, I find myself downright confused and disheartened by the arguments and statements I’m hearing from the Administration. Power and Neera Tanden (President of CAP) make an appeal for intervention that rests largely on emotional arguments, calling it “monstrous,” talking about fathers crying over their dead babies. Yes, this all horrible. Atrocious. The videos of the Syrian chemical attack are shockingly gruesome. And I don’t doubt that it was Assad and the Syrian government behind these attacks.  But ultimately, there are humanitarian atrocities the world over. Omar al-Bashir, President of Sudan has murdered hundreds of thousands of his own people. The Lords Resistance Army, led by Joseph Kony, is a band of rebels causing havoc in uncontrolled regions of Uganda, the Democratic Republic of the Congo, and the Central African Republic. Kony and his gang mutilate and rape their victims, while abducting children and forcing them to fight on their behalf. And the list goes on. If we accept Ambassador Power’s argument for humanitarian-based intervention, where do we draw the line? Which do we get involved it, and “how can we stomach,” in her words, sitting out and “standing idly by” while other atrocities takes place? (Side note: a fact too little known is that the US did send military personnel to fight against Kony and the LRA in October 2011.)

Furthermore, the idea that the United States is the moral international arbitrator in this situation — an argument Ambassador Power alludes to repeatedly — is patently absurd. In the 1980’s, the United States helped Sadaam Hussein massacre thousands of Iranians with chemical weapons in a calculated effort to maintain the balance of power between those two countries in the Persian Gulf region. This is not an allegation, but a fact proven by recently declassified CIA memos. Read them, they’re shocking.

Additionally, Ambassador Power claims that we must do this because it’s an international treaty. The simple yet devastating counter to this silly point that the administration is making has become almost hackneyed: since when has the United States obeyed international law, or upheld treaties?  The United States hasn’t even ratified the Law of the Sea Treaty! And why didn’t the United States care when it’s ally, Bahrain, (where the U.S. Navy 5th Fleet is harbored) was arresting doctors and other medical personal as they rushed to tend to peaceful demonstrators (who had been injured by government riot police) that were demanding democracy and a voice in their government affairs? Why didn’t the United States want to intervene to uphold the Geneva Conventions in Bahrain. So, having belabored the point, I hope I have shown how absurd Ambassador Power seems to anyone who has a conception of history, international law, and the traditional role the United State has played in world affairs.

Ambassador Power claims the United States has exhausted alternatives, yet she makes no mention about any efforts to tighten sanctions. Sanctions won’t stop chemical weapons being used on civilians, but neither will targeted strikes. And if targeted strikes do succeed in stopping further chemical weapons attacks by Assad, what is to stop Assad from decimating innocent Syrians with traditional weapons? What is the end game for the United States?

Ultimately, I don’t buy the argument that this is a humanitarian ground for the reasons stated above. Rather, I think (but I have no evidence for this claim) that America’s national security apparatus is exaggerating the “threat” to America’s national security, to global stability, or to any of our non-core interests, in order to work to take out Assad. This is exactly what happened in Iraq in 2003. And Libya in 2011 was very similar. The common theme in all 3 cases is that a decent pretense (9-11 with Iraq, the Libyan Spring, and sarin gas now in Syria) is used as an excuse to achieve a longstanding goal — getting rid of a dictator we don’t like. But why must we do it again!? In both Libya and Iraq, the outcomes were terrible for the United States! In Libya the outcome was good for Al-Qaeda and very bad for the U.S. embassy and the estimable Ambassador Christopher Stevens; in Iraq today there is no democracy, internecine sectarian violence continues, and in many important ways Iran’s position in the region was strengthened by the US intervention. So, assuming we even could somehow take out, or weaken, Assad, what could the national security apparatus of the United States possibly expect as a productive outcome for US interests!? The U.S. knows it doesn’t like the opposition forces (that’s why the Obama Administration has been reluctant to provide lethal military support). The United States fears that the opposition is sympathetic to Al-Qaeda or other extreme Muslim groups. I’m struggling to see what good for the United States will come from an attack on Syria.

I think this intervention plays perfectly into Al-Qaeda’s narrative and will undermine our global counter-terrorism efforts. It will surely increase instability in the Middle East possibly increasing the price of oil. Counter-terrorism and oil price management are the primary core national interests of United States in the Middle East. Limited strikes on Syria will undermine both of those goals.

So what is President Obama doing? I am dumbfounded.

The US Turns Its Eyes to Syria September 4, 2013

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A couple quick thoughts on the impending Syria intervention by the United States:

Over the weekend the President stated that while he has the legal authority to proceed unilaterally and without Congressional approval, he will seek Congressional approval prior to engaging the armed forces in Syria. The legal authority for the President to engage — both from an international law standpoint, and a domestic law standpoint — is very ambiguous, and I would be very curious to read the administration’s legal memos on the subject. But ultimately the gray areas are where law is created, right!? I have written previously about the War Powers Act and the legality of the Libyan operation, so I’ll put this issue aside for now.

Unlike the Libyan operations — where the President did not seek Congressional approval, but Congress attempted (and failed) to assert its authority — the President with Syria is affirmatively seeking authority from Congress. The President argues in his speech that having a national debate, through our Congressional leaders, is the right thing for our democracy. Then he proceeded to lay out the case for why intervention in Syria is a good idea.

Seeking congressional approval is a good thing, whether or not Congress “rubber stamps” the issue, unquestioningly providing the authority to intervene, because it inherently demands that a deeper debate occur. I’m happy to see that this is already happening. Moreover, I would argue that Congress is not merely “rubber stamping” but rather they are providing meaningful checks on the executive: a limit on the duration of engagement to either 2-3 months, no boots on the ground, and the requirement that the President submit to Congress a report detailing U.S. aid to opposition groups in Syria. This is valuable, and it is to Mr. Obama’s credit that he jump-started this debate.

Again, the proposals coming out of Congress lead us back to whether any of this matters because ultimately if the President doesn’t need Congressional authority in the first place, then what meaningful checks can Congress place on the Executive? This is the stuff that gets decided in the court of public opinion. Precedent is being set here, and the judgment of public opinion will affect the “legality” of future interventions. (Precedent was set in Kosovo in 1999 even when President Clinton affirmatively stated that the intervention should not set precedent.)

Lastly, I’ll say that Congressional leaders would do themselves and the institution of Congress well by making sure to come up with reconciled language that authorizes the President to conduct a limited intervention. It’s clear that President Obama is going to intervene on a certain scale. If Congress wants to avoid its authority as an institution from being further undermined, it should produce a reconciled resolution authorizing the use of limited force in Syria, and it should do so fairly quickly.

I’ve yet to address the normative question of whether or not this is actually a good idea. I tend to think a limited intervention in Syria is, in fact, a good idea for the United States and the world. I’m persuaded by the argument that the chemical attack was tragically heinous and the world should not stand idly by. I believe we need to bolster the rule of law in the international community, and I think a small-scale intervention, hopefully with Arab, Asian, and European partners, bolsters a rules-based international regime (though I acknowledge that there are arguments supporting the view that this merely undermines the rule of law internationally). In general, though, I’d rather stay away from this normative question because, ultimately, I am so far from being in a proper position to address this question with any sort of accuracy or informed opinion. For better or worse, foreign policy is a facet of policy-making where we must trust our leaders.

Closing the Justice Gap September 26, 2012

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Perhaps the biggest news in the public interest legal world right now is the new requirement that applicants to the New York Bar must have completed at least 50 hours of pro bono legal work. This is the first of its kind in the United States, but it’s easy to foresee that other states will soon follow New York’s lead.

The details of the program were announced on September 19 by Chief Judge of the New York Court of Appeals, Jonathan Lippman. It’s a flexible program – the work can be performed anywhere in the United States, and it uses a wide-ranging definition of public service work. Work in law clinic, for example, will count towards the program as long as it is counted for school credit.

Those that are complaining about the new requirement should reconsider. This small requirement will help institutionalize the importance of public interest work for the legal profession. It will also energize the trend in legal education towards experiential learning, incentivizing schools to create more opportunities for their students to perform pro bono work. Indeed, this is already happening. New York Law School announced a new Pro Bono Initiative as a result of the new requirement.

Hannah Arterian, Dean of Syracuse University College of Law, complained the 50-hour requirement “is a whole other level of responsibility that the law schools have to take on.” Really? I hardly need to point out how cold-hearted and unsympathetic she sounds.

Those that can give back must do so. This will help us all remember that. 50 hours is not a very high number. This can be accomplished easily in one semester or one summer. The most reasonable objection is that the requirement will create additional burdens for legal aid organizations as they work to onboard and train the young attorneys-to-be. But this is a good problem to have. Public interest legal organizations can work with universities to make sure the students are capable and prepared. They will surely find ways to turn this additional talent into a resource to carry out their mission more fully.

It’s estimated that civil legal services providers in New York turn away as many as eight of every nine people seeking their assistance due to a lack of resources, according to a task force on legal aid formed by Lippman. Eight of every nine people in need! 50 hours is the least a new attorney should be required to do, and thanks to Judge Lippman, that is now the law.

This is a great step for New York, and for the tradition of pro bono legal work. Millions of New Yorkers in need of legal services will  now receive it. Other states should raise their pro bono standards. Those lawyers that are already barred should take heed and redouble their efforts to help close the justice gap.

Let’s Provoke Some Ethical Thinking April 6, 2010

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I recently got a terrific writing prompt from my professor of my philosophy of ethics class. It really got me thinking…and I bet it will do the same for you, check it out:

Q. You receive the following email from your 30-year-old son:
Dear Mom and Dad — If you’re reading this, then you will probably never hear from me again.  I’ve decided how I want to spend the rest of my life.  I’ve been taking a wonderful new prescription drug intravenously for the past six months.  It’s entirely safe and won’t shorten my life (you can read about it in medical journals if you wish).  It puts me in a state of constant pleasure.  I just lie in bed all day with a nutritional drip and a bedpan.  My live-in nurse empties the bedpan, exercises my muscles, and looks out for me. I’m happier than I’ve ever been before. In fact, I can’t imagine anyone being happier than I am when this drug is flowing into my bloodstream.  Fortunately, my trust fund will pay for all of this for the rest of my natural life.  Before I started taking the drug, I instructed my nurse to take me off of it briefly after the first six months, just so I could write this final email to you.  But I can’t wait to get back in bed and on the drug again.  By the time you read this, I’ll already be there.  Please don’t try to stop me.  I’m happy.  You love me, so what more could you want for me?  Love, Your Son
What a doozy right?…Below is my response, feel free to respond to it, just share your own thoughts on the prompt, or both…

My initial reaction to my son’s email is to feel shocked and disturbed. I am unsettled by his wish to spend the rest of his life in bed on an intravenous, pleasure inducing drug. But more than anything I am troubled by his simple statement that he is happy. This assertion of his is a dramatic demonstration of the role of personal authority in deciding what constitutes our own happiness. And, as one who accepts as a basic principle that happiness has intrinsic value, I find my son’s declaration exceedingly irritating because it so seriously circumscribes the grounds upon which I could hope to change his mind.

If, for example, my son was justifying his choice by some general disgust with humanity or the world, by a lack of belief in his own capabilities, or some terrible misfortune which had recently befallen him, I would be able to engage him on more widely discernible grounds. I could point to examples of progress and reasons to be hopeful, remind him of times he succeeded at a difficult task, or console him with compassion and assurances that his pain will pass. As it stands I have no such option. While our value theories may seem to be in alignment in the sense that each of us reserves a special place for happiness as a valuable end in itself, the resemblance is superficial. My son has supported his decision with an affirmation of his authority and in the process clarified the chasm between his conceptualization of happiness and mine.

The great 19th century hedonist and utilitarian, John Stuart Mill, would have been exasperated by my son’s reasoning, especially because Mill had to contend with critics of hedonism in his own lifetime who maintained that it was a “doctrine worthy only of swine.” Mill’s retort, quite effective coming from a man as refined and educated as he, was that there is “no known Epicurean theory of life which does not assign to the pleasures of the intellect, of the feeling and imagination, and of the moral sentiments, a much higher value as pleasures than to those of mere sensation.” (EL, 16) Were hedonism’s critics to seize upon my son as an example of the pathetic or ignoble in hedonism, Mill would simply take him out to the rhetorical woodshed. As he famously said, “it is better to be a human being dissatisfied, than a pig satisfied; better to be Socrates dissatisfied, than a fool satisfied.” (EL, 18) My son, in his drug-induced stupor, would obtain the backing of neither Epicurus nor Mill for his prioritizing of the basest pleasures over those of the mind and spirit. In fact he would likely be called an outright fool.

Yet even in the face of abandonment by two of the greatest hedonists, my son could (assuming he cares at all about such things1) hold fast to hedonism as a justification for his decision if he maintained that this drug is what makes him happiest. He could accuse Mill, Epicurus, and myself of being elitists convinced of the superiority of a set of instrumental means to happiness (which are really just our personal preferences) and wanting to impose them upon him. Mill mused that among other attributes, love of liberty, love of power, love of excitement, pride, and dignity were variously responsible for the fact that man, with his higher faculties, would not permit himself to be satisfied by a lower grade existence. He would be forced to either concede the point or claim that my son possesses none of those mitigating qualities. I could add responsibility, ambition, and love of family (because his decision would prematurely remove him from my life, thus causing me unnecessary pain) to the list of qualities which typically channel our pursuits towards so-called higher pleasures, and which my son lacks. But piling on my son in this manner would be a dead end when he has already shown he is satisfied by bodily bliss alone. It is not likely that I will be able to change his mind if he truly meant what he said in his email.

My greatest concern going forward is with the repercussions of this drug’s existence. I am inclined to agree with Mill’s insight regarding the judgement of various pleasures. He places it within the rhetorical question, “What means of determining which is the acutest of two pains, or the intensest of two pleasurable sensations, except the general suffrage of those familiar with both?” (EL, 19) I see no other way of even beginning the project of comparing levels of pleasure and pain of experiences without trusting in the reports of those who have actually lived them. Problematically however, if this is true, we are losing leverage over my son because neither of us have tried his miraculous drug.

Since the creation of the atomic bomb humans have worried about its catastrophic potential, a concern I share. In this situation I am also worried about the awesome power of a human invention. If, as my son maintains, this drug induces such incredible levels of pleasure as to make all alternative pleasures pale by comparison while not causing negative side effects, then it is possible it constitutes a sort of “pleasure bomb”. Such a pleasure bomb would radically alter the order of human pleasures in fundamental ways that could be destructive to life was we know it. My literate son may be selfish, but judging by the tone and content of his letter he was not destined to be a degenerate and he is certainly not malevolent. Should he be truly rational and autonomous at the moment he wrote the letter, not merely motivated by a burgeoning addiction, then the drug is a considerable threat. He may be an ethical egoist with a narrow definition of his self-interest, or even a not so narrow definition of self-interest which has nonetheless been overwhelmed by the power of the drug. Regardless, if he is thoroughly convinced of the superiority of this pleasure, then it is an ominous sign that it will attract more than just those on the margins of society.

If I were to try the drug myself and conclude that despite its charms I would not trade away a life of art, friends, chance occurrences, setbacks, and the like, then I would be able to dismiss my son’s case as a sad example of someone whose capacity for the nobler feelings had somehow withered away. More helpfully to me, I could regard him as an unfortunate aberration and the drug as relatively harmless on a grand scale. But I would not try the drug, even though it might give me the opportunity to evaluate my son’s judgement for myself.

I would not try the drug because I would be afraid of my own fallible nature and because of the value I place upon my link to the external world. As Robert Nozick summarized it in Anarchy, State, and Utopia, “we learn that something matters to us in addition to experience by imagining an experience machine and then realizing that we would not use it.” (EL, 33) In this case, I consider humanity’s ability to perceive reality through our senses to matter, and on a fundamental level. One might counter by pointing out that this drug is not the same thing as Nozick’s “Experience Machine” whereby the subject is having truly unreal experiences. That is of course true but misses the point. My son in this scenario has lost touch with the reality of what goes on around him, of what it takes to sustain him. Without his live-in nurse to manage his bodily functions and ensure his well-being, he would be helpless. I am not concerned with the content of his subjective experiences and whether they imitate reality or not.

Another might argue that my concept of reality is too generous, too presumptuous, too anthropocentric, because after all, our senses are imperfect. They might ridicule my concept of “reality” as naive. They might remind me not to romanticize any notion of what my son is leaving behind as he retreats into his head. Well those who would object in this manner would be right that our link to reality is tenuous and uncertain in many ways. I cannot dispute the fact that our senses can deceive us. But they are also our only source of information about the physical world. More importantly, that information is actionable, however imperfect. It is the only basis for human action. Without a connection to the world even immediately outside of oneself, autonomy and rationality are made meaningless by dearth of information, which is their only sustenance.

I am deeply perturbed by the possibility that such a drug could exist. If there is no definite limit to the amount of pleasure that could be administered chemically, then I can not write off the power of such a creation to upend the natural arrangement of pleasures. Such a situation, like Nozick’s “Experience Machine”, certainly forces one to consider the sources of pleasure, and whether some are too precious to part with no matter the raw quantity of pleasure they are traded for. Without attempting to assign intrinsic value to things on a universal level (besides happiness) at this juncture, it is clear that the existence of a host of the things most persistently valued by humans would be annihilated in my son by his sensory blackout. Among these are reality as humans perceive it, autonomy, rationality, interaction with other humans (relationships), duty to develop oneself, and capacity to appreciate and produce art. These things are so instrumental to some people’s conception of happiness that they would decline the drug rather than be without them.

Others might simply be non-hedonists or ascribe intrinsic value to things besides happiness, thus making resistance a simple matter of willpower, of following through on their philosophy. Kant, for example, would certainly object to my son’s surrendering of his autonomy and ability to think rationally as a perversion of his intrinsically valuable human attributes. Getting back into bed and inserting the IV will be the last action my son ever takes. However, that action appears to be made knowingly, which raises the question of whether voluntarily laying down your future autonomy represents a breach of autonomy or not. And of course Kant would protest my son’s decision on the grounds that he is wasting his talents, when he has a duty to develop them.

Indeed, my son will be closed off to future developments of any nature. Conditions in the world could change drastically while he is unresponsive, for the better or the worse. World peace might be achieved, and global happiness could subsequently skyrocket as a golden age of humanity is launched – my son would not know about it. His mother or I might develop a painful terminal illness, running through our savings over time, until we are broke and on the verge of losing care. Our son’s trust fund, which he is tapping to pay for his state, might be able to make a difference. It would be his decision, and perhaps he would still decide his trust fund is better used to pay for his drug. But crucially, without the necessary actionable information, he would not even be able to make that choice. Or, in terms that might be more enticing to my son, a drug that generates double the ecstasy of his current one (still without physically damaging side effects) could be invented and he would not be able to make the switch. In any future scenario, and we can assume there will be a future of some sort, circumstances will change and impact the calculation he (hopefully) considered when he made his decision. Because the world is not static, he is not capable of knowing what he is giving up.

Ultimately, such a powerful drug would plumb the depths of human nature and test our desire to remain connected to each other and to the physical world. Escapism is nothing new but with modern technology its potency continues to rise in the form of consumer luxuries, mindless entertainment, virtual reality games, and of course, drugs. Meanwhile, the intuition that there is something less valuable about pleasure derived from these sources than from positive, creative actions is not always given voice in popular culture. The extent to which such a bias is part of our nature is questionable. If there is no limit to the power of the artificial pleasures science can bring to us, then the stakes will continue to rise. Negative bodily side effects have usefully tended to come along with powerful drugs and had a sort of moderating effect on their attractiveness, but in their absence a major disincentive would be lost. Without a value theory that prima facie diminishes the value of this third type of unnatural pleasure from the traditional bodily pleasures and the intellectual pleasures of the past, preventing the diffusion of ever more “perfect” drugs through society could be immensely difficult. That is, assuming we wanted to prevent that at all. It is a question science is not equipped to answer for us, and which demands the attention of our best moral philosophers.

My First Kiva Loan April 19, 2009

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I just made my first KIVA loan to a group of entrepreneurs in Prasat, Cambodia. Read below for the description of my loan recipients. I’ve helped people by giving my time before through community service, but this is the first time I’ve given my money. I had fun, and I encourage everyone to make a loan through Kiva. Nicholas Kristoff says its one of the best philanthropic things you can do with your money in his article in today’s Times.

The 13 people living in Prasat village in Cambodia’s Kandal province who comprise this village bank loan will use the loan for various purposes. Mrs. Morn Nheb is a 50-year-old village bank president. She uses hay to make fertilizer that she sells to farmers. Since her business is doing well, she wants to expand it by purchasing more hay to make more fertilizer to sell and earn more income. Her husband, Mr. Sam Lorn, is a hairdresser. Mrs. Morn Nheb has two children who attend the local school.