Carolyn Lamm Does Not Speak For Me

Posted in Uncategorized on July 2nd, 2010 by bl1y

Few topics are as likely to inspire heated debate in the United States right now as the new Arizona immigration law.  Arizona and the BP oil spill vie for position as number one, with Koman Coulibaly and the other World Cup embarrassments trailing in a distant third.  Elana Kagan doesn’t even make it onto the controversy radar.

It’s no surprise that lawyers, what with their legal interpretive skills and all, would have strong opinions on the matter.  Unfortunately, the legal profession hasn’t put its best foot forward in the debate.  Professor David Crump (University of Houston Law Center) has written an article for the Houston Chronicle in favor of the law, and the board of trustees of the Law and Society Association issued a resolution calling for a boycott of Arizona.  Writing on the PrawfsBlawg, Professor Jack Chin (Arizona Law) called out both groups for their failures in basic reading comprehension.  Not a shining moment for lawyers.

Now, a bigger legal dog is getting in the fight, the American Bar Association.  ABA President Carolyn Lamm, along with President-Elect Stephen Zack (and some other assorted knuckleheads), filed an amicus brief in opposition of the Arizona law.

While reasonable minds can disagree on which way the case should go (or maybe they can’t, I don’t really know, the issue isn’t particularly interesting to me, so I’m not too familiar the details and won’t make an uninformed opinion like the LSA and Professor Crump), it’s not the worst idea to have learned legal professionals weigh in on the matter.

But, what has many members of the ABA up in arms is that Ms. Lamm’s brief was filed on behalf of the ABA:

The ABA will not expand upon the Plaintiffs’ constitutional arguments, including preemption, but rather will limit this brief to a discussion of the impact that S.B. 1070, if implemented, will have on four issues that are of deep concern to the ABA: (A) the increased use of racial profiling in law enforcement; (B) the mandatory detention of citizens and noncitizens; (C) the increased burden and new obligations on Arizona’s indigent defense system, as well as its courts and prosecutors; and (D) the attempted usurpation of exclusive federal authority to manage and supervise immigration law enforcement matters.

Were you aware that these things were deep concerns of the ABA?  I’m sure I didn’t get that memo.  I know I haven’t been in the organization very long, but I always kind of figured it was a professional organization, not a social policy group.

I was in law school when the Supreme Court heard FAIR v. Rumsfeld, the case about whether law schools could deny military recruiters access to career services resources as part of a policy to not open career services up to employers that engage in discriminatory hiring (and keep their federal funding while denying access to the military).  While there was a lot of disagreement with how the case should come down (law professors thought the schools should win, SCOTUS disagreed 8-0), few people would argue that it was improper for law schools to have a position on the matter, even if they disagreed with that position.  As a body that has a great deal of influence on schools, it would have been proper for the ABA to give its opinion to the court.

But, the Arizona immigration law?  While the debate may be interesting to members of the ABA, it is not of interest to them as ABA members.  For those of you that only understand lawyer-speak, they’re interested lawyers-qua-people, not lawyers-qua-lawyers.  While Ms. Lamm is perfectly free to file an amicus brief, she should not do so as the voice of the ABA.

The ABA respectfully suggests that its views, which represent the perspectives of a broad range of practitioners and others involved with immigration and criminal justice issues, may be of value to the Court in its consideration of the questions now before it.

No!  While lawyers tend to be a bit left of center, there is hardly a consensus within the legal community about the Arizona law.  It is entirely inaccurate to describe the opinions in the amicus brief as the views of the ABA at large.  They are the views of Ms. Lamm, and some members of the ABA, not the views of “The ABA.”

Further, this is not a matter on which the ABA should even have an official opinion.  As a professional organization, the ABA’s primary job should be supporting its members, a job it has fallen asleep at the wheel on.  An ABA which thinks it can influence the immigration debate, but is powerless in stopping the creation of fourth tier diploma mills is an ABA that has its head so far up its own ass that it can watch its lunch being digested.

20,000 lawyers have been “downsized,” not to mention those who have had their job offers deferred, and firms that have simply reduced their hiring, but this is what the ABA concerns itself with?  The only resource the ABA Career Center offers for alternative careers for lawyers is a single article from 2005 that suggests such practical, realistic pursuits as Major League Baseball Manager and Ghandi.  If there are other resources available online, the ABA needs to hire a better web administrator.  Maybe one of the many web savvy recently unemployed lawyers could help out.

It is a complete failure of leadership for Ms. Lamm to focus the ABA’s energies more on the welfare of undocumented day laborers than unemployed juris doctors.  Surely those affected by this bill are deserving of zealous advocacy, but the ABA is not the proper organization to advance their interests.  Is this what you think your ABA dues are paying for?  The immigration bar, maybe (though they might appreciate the surge in business), or the Latin American Legal Defense and Education Fund, but the ABA?  No.

As if the recession didn’t give the ABA enough reason to do anything other than step in on the Arizona immigration debate, the brief highlights just how improper its existence is.  Ms. Lamm has picked a very unusual time to express the collective voice of the ABA:

While the ABA typically files amicus briefs only in the highest federal or state court that will consider a matter, the ABA believes the issues before this Court are of such significance to the American people and the practice of law that they must be addressed at this stage of the proceedings.

Does the timing of this brief have anything to do with the fact that it would likely only reach the appellate level only after Ms. Lamm’s role as ABA president would have expired, and she wouldn’t get to put her name at the top of the brief if it were filed at the appropriate time?  It’s up to you to decide.  (Hint: the answer is probably “yes.”)

A number of lawyers have expressed their intention to end their membership with the ABA over this debacle, but I suggest a different course of action.  First, I would like to see Ms. Lamm ask the court for leave to amend the brief, and re-file it only on behalf of the authors.  But more importantly, I hope that this will encourage people to become more active in the ABA and push for policy that focuses on supporting lawyers and advancing substantive educational and professional reform, rather than on racking up prestige points for the ABA leadership.

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