The Rule of Law

January 28, 2013

Emory Lawyers Defend the Principle Around the World

The Rule of Law saves lives, promotes human rights and facilitates economic growth,” says Robert A. Schapiro, dean and Asa Griggs Candler Professor of Law. “One of the greatest barriers to the kind of economic development that would lift people out of dire economic circumstances is the absence of the Rule of Law.”

The Rule of Law is the foundation of American social, economic, moral and, especially, legal society. That’s one definition of it, but far from the only one. The Rule of Law is what drives the Emory Law community—alumni, faculty students and staff— but rarely does it drive them in the same direction in the same manner or the same speed. A doctor uses his tools—a scalpel, the lab—to save lives. An attorney uses her tool—the Rule of Law—to defend her client, or prosecute someone else’s; to make businesses pay for their negligence; or to help create a climate that pro.motes business growth. The Rule of Law creates an environ.ment that makes all other advancement possible. A lawyer’s every action and reaction is driven by the Rule of Law. Exactly which route a lawyer follows, though, is an individual story as varied as the thousands of Emory Law alumni practicing today.

Triumph against long odds

Eugene McCarthy and Walter Koczur died of lung cancer in 1998. They didn’t know one another, but their names are forever linked by a judgment that found the Goodyear Tire and Rubber Co. partially responsible for the disease that killed them. The case languished in the courts for more than a decade before finally reaching a jury in mid–2011. It was no easy win, either. Both men were longtime smokers, and an army of Goodyear attorneys and experts lined up to testify that the cigarettes were the true killers, not the Goodyear.made gaskets laced with asbestos the two factory workers encountered on the job.

Danny Kraft Jr. 01L, an attorney for the New York firm of Weitz & Luxenberg PC, representing the plaintiffs, says most cases like this are settled, but the defendant wanted its day in court, so that’s what Goodyear got. What the plaintiffs got — following a six-week trial and 12 years of waiting— was a $22 million award; Goodyear appealed, and the case was recently settled for a confidential sum.

“Just because sometimes justice is delayed,” Kraft told the jury in his summation, “there is no reason for justice to ever be denied.”

Kraft says the threat of jury trial drives many settlements and that with.out it plaintiffs would have no avenue of redress to right the wrongs they suffered. In the Goodyear case, the company did not acknowledge responsibility, so a pretrial settlement was not an option.

It’s a perfect example of how the court system offers the balance of the Rule of Law. “My general understanding of the Rule of Law is that no one is above it,” Kraft says.

“This case showed that two people who are from relatively humble, blue-collar backgrounds can take on an enormous U.S. corporation and be successful in convincing a jury that that corpora.tion was negligent and irresponsible and then have a jury award them damages based upon that negligence and irresponsibility.”

‘Give me your tired, your poor …’

Few subjects raise the country’s temperature faster than immigration. At least that’s how the game is played in the political arena. For lawyers, the subject of immigration and immigration law carries considerably more nuance.

Larry Katzman 76L knows about immigration from a variety of angles. In the 1990s, he worked as legal director and pro bono coordinator for a Washington state non.profit legal organization representing foreign nationals who sought asylum and other forms of protection in the United States. He then moved on to the legal department of the U.S. office of the U.N. High Commissioner for Refugees in Washington, D.C.

“Pro bono is about access to justice,” says Katzman, who serves as deputy public service counsel for the Washington, D.C., office of Steptoe & Johnson LLP.

“The Rule of Law is vital, and obviously it’s a bedrock of Western society and of the United States, but a lot of people don’t have the means to access the legal system in a way that enables them to be on an equal footing with others,” he continues. “The idea of pro bono is to expand or ensure access to justice for people who might not otherwise have it, usually because they cannot afford private legal representation.”

In his role at Steptoe & Johnson, Katzman connects his firm’s attorneys with a wide array of pro bono opportuni.ties that match their skills and interests. It’s the other side of the work Katzman did in Seattle when he would reach out to the city’s law firms seeking their pro bono assistance.

Public service law is a relatively new area, but one where Emory boasts considerable strength with the student-run Emory Public Interest Committee and a wide range of courses, clinics and field placements available. Katzman freely admits that public interest law is not always the most lucrative way to earn a living, but other benefits exist beyond the bank account— the personal reward that stems from helping those in need, in particular.

“Asylum seekers may not speak English and are very often traumatized,” Katzman says, “There is a real sense of assisting people who are in great need and quite vulnerable. If I can prevent them from being deported to a country where they face danger and help them get legal status in the U.S. so they can begin to heal and move on with their lives, then that is empowering for them and satisfying for me.”

The terror of Guantanamo

In 2006, the U.S. Supreme Court ruled the military commis.sion used to try Salim Hamdan, Osama bin Laden’s driver, was illegal and lacked the protections required under the Geneva Conventions and U.S. Uniform Code of Military Justice. The implications of the landmark Hamdan v. Rumsfeld decision changed the way the United States prose.cuted terrorism and opened the door for Emory Law’s entry into one of the most controversial— and important — legal arenas of our time.

“It was exciting,” says Justin Wiseman 10L, one of the more than 20 Emory Law alumni who worked on cases involving Guantanamo Bay prisoners between 2007 and 2010. “I don’t want to say it was scary, but it did give me pause. This was not a popular thing to be doing at the time.” In the wake of the decision, Hamdan’s attorney, Charles Swift, joined the Emory Law faculty on a visiting professorship. For a year, he served as acting director of the International Humanitarian Law Clinic. The clinic recruited students to assist local Atlanta attorneys representing men held in Guantanamo. Six of those men, all Yemeni, are represented by Atlanta attorney John Chandler. “None of our clients in Guantanamo has even been accused of a crime. And now, they are entering their 11th year in jail,” Chandler says. “To me, that violates the essence of the Rule of Law. It doesn’t make any difference if you have freedom of speech or freedom of religion or freedom of assembly, if I can pick you up and put you in jail and keep you there without charge, none of the other freedoms matter.”

Matthew Olinzock 10L was one of the students assigned to work with Chandler. In addition to doing research, he wrote the firm’s clients letters each week updating them on their cases as well as what was going outside Guantanamo Bay. The letters were their connection to the outside world.

“In law school, you don’t always get practical experience,” Olinzock says. “So if you are working with a practicing attorney in the field, it’s eye opening.” It’s also great experience for the future. Now an intellectual property attorney, Olinzock credits the international angle of his Guantanamo Bay work with helping him win a recent case that gained asylum for a Russian national.

Carlissa Carson 08L was one of the first Emory Law students to do Guantanamo work. She traveled to Cuba twice in 2007 – 2008 to work with Swift directly on Hamdan’s defense.

Before coming to Emory, Carson was a first lieutenant assigned to the U.S. Army’s 345th Military Intelligence Battalion. After graduation, she was promoted to captain and assigned to the Judge Advocate General’s Corps in the Army Reserve and later served one year of active duty as chief of interna.tional and operational law with the U.S. Army 335th Signal Command, so her experience was ideal for the research.

“I think one of the most significant things I became aware of is that, times of war, certain administrations may erroneously believe that it is in our nation’s interest to evade the Rule of Law,” says Carson, who is in private practice. “In other words, the Constitution is the foundation upon which this country stands, and that is where the current Rule of Law stands.”

In August 2008, following Carson’s work, Hamdan was convicted of “providing material support to terrorism” and sentenced to five-and-a-half years in prison. Since he had already spent five years there, six months after the verdict, he was released and is reportedly back in Yemen.

A new kind of banking

It’s one thing to research public policy. Making it? That’s something else entirely. Not long after she graduated Emory Law, Leslie Powell 09L began work in the Washington, D.C., office of the Center for Community Progress, a nonprofit cofounded by Emory Law Professor Frank S. Alexander.

Her assignment was to draft legislation enabling the creation of land banks in New York state. Land banks are public entities that can acquire, maintain and convey vacant, abandoned and tax-foreclosed properties. The rules regarding their creation and existence vary depending on state and local statutes.

Powell, who had worked as a staffer in the Florida legislature, understood the hurdles. When the legislation, she tied it to New York’s tax foreclosure law. She submit.ted her final product, and the legisla.tion passed in July 2011. To Powell’s surprise the final law went into effect almost exactly the way she wrote it.

“Some people might say that I wasn’t practicing law in the sense that I wasn’t billing clients for work. That’s true,” says Powell, now an associate with Kutak Rock llp in Atlanta. “But I did have a client — the legislative staff who needed our help. That may not be your private practice definition of the Rule of Law, but at the end of the day we’re making law, and that’s pretty cool to do in your first job out of law school.”

Land banks are a relatively new tool to battle blight. In the mid–2000s, the land bank concept was introduced to several economically downtrodden parts of Michigan and experienced great success. For instance, land banks helped property values in Flint rise more than $100 million.

With property values across the country continuing to spiral downward and neighborhoods everywhere struggling to emerge from the recession, land banks could be part of the solution.

“You’ve got a bunch of dead property not performing in the market and wreaking havoc in the community,” says Sara Toering 06T, counsel to the Center for Community Progress. “Land banks are responsible entities that can come in and eliminate those liabilities, make it safe and get it functioning again.

”Not only are land banks responsible entities, they’re open ones, too. Since they are public, land banks are subject to open and records laws. The center’s advice to local and state governments is transparent. No backroom dealing here.

“When it’s done, you’ll have a property that could be used for a great public purpose like a park or a community garden,” Toering says. “Or it could be conveyed to developers for affordable housing or simply returned to the market.”

Legislation similar to that completed in New York passed in Georgia in March, this time with Toering serving as principal drafter, and additional work is ongoing in more than a half dozen states.

Kristen Tullos 12L worked on a Missouri project where she researched the viability of land banks in Joplin, which took a direct hit from a 2011 tornado that laid waste to much of the city. Her work was central to a report that was sent to the Joplin stakeholders just before the holidays, outlining their options and offering analysis. It was Tullos’ first foray into the working of state and local governments and she liked it so much that she is taking a class on the subject this spring.

“The work was so much more than research,” she says. “It’s great to have an opportunity in law school to do some.thing that might have an impact on people’s lives.” Exporting the Rule of Law At Emory Law, the Rule of Law is perhaps most prominent in the Center for Advocacy and Dispute Resolution. The center houses the Rule of Law Reform Project, which studies the challenges related to the implementation of reform in post-conflict and developing nations.

“When I graduated from Emory Law, you defined the law between the boundaries of California and New York; we were all domestic lawyers,” says Reuben Guttman 85L senior fellow at the center and adjunct professor of law. “In the last 30 years, with the Internet and the global economy, it’s virtually impossible to practice law without touching on laws that are outside our geographic boundaries.”

In China, where center director Paul Zwier spent some time before the holidays, Emory Law partners with Nanjing University to explore the differences in fact pat.terns as defined by the U.S. and Chinese courts. In Mexico, Emory Law — in collaboration with the Department of State —helps train lawyers and judges on how to try cases in their domestic courts, which have just allowed oral advocacy. In Liberia, the center assists with the basics of the country’s post-conflict legal reform.

Courtney O’Donnell 03C 10L spent her summer in 2009 working in the sexual and gender-based violent crime unit of Liberia’s Ministry of Justice. The unit had been in operation just three weeks prior to O’Donnell’s arrival. Among her responsibilities were meeting with victims, helping lawyers prepare for trial and fostering coordination among law enforcement, prosecutors and health care workers.

“I had worked on sexual violence issues before, and that’s why I wanted to go to Liberia,” says O’Donnell, who now works as a public defender in DeKalb County. “As post-conflict nation, that’s a time when people can have an impact, and because Liberia follows our legal system, American-trained lawyers can offer help.”

While the Rule of Law Reform Project introduces American legal concepts and practices to its international partners, imposing them onto those partners is not necessarily the final goal.

“The Rule of Law is a process,” Guttman says. “Different cultures and different countries look at things differently. When we teach trial practice to foreign lawyers, we’re not telling them to do it this way because that’s the way we do it in the United States. We dig down to the foundations of the law. Don’t do things this way because we do it. Do them in a way that makes sense to you.”

Both sides of the Rule of Law

One of the most divisive criminal cases of the last 20 years reached its conclusion Sept. 21, and — depending on one’s viewpoint—justice was served or a tragic wrong committed. Emory Law alumni played significant roles on both sides.

The state of Georgia executed Troy Davis, convicted in 1991 of murdering off-duty police officer Mark MacPhail in Savannah. The debate over Davis’ guilt, however, raged until his death and beyond. Convicted in large part on the testimony of eyewitnesses—several of whom later recanted— Davis was at the center of a case that pulled the Rule of Law in every direction.

Jay Ewart 03L joined the Davis defense team in 2004, more than a decade into his stay on death row. From day one, Ewart worked the sys.tem for his client, frequently pointing out that the state’s case was less than ironclad.

“There was no physical evidence. They never found a murder weapon,” says Ewart, who was profiled in the Winter 2012 Emory Magazine. “That became our mantra. We started repeating it, over and over, thousands of times. And people started listening and saying, ‘you know, that gives me pause.’”

One of those listening was Leah Ward Sears 80L, chief justice of the Georgia Supreme Court. One of Ewart’s appeals reached Georgia’s highest court, and while Ewart occasionally found success, he was unable in 2008 to convince the justices that Davis should receive a new trial. Sears, however, wrote a dissenting opinion in the decision.

Ewart exhausted every avenue, including the U.S. Supreme Court, which denied a final stay four hours after Davis’ scheduled execution hour. The sentence was carried out a short time later.

Closure hasn’t been easy for a case that brought world.wide attention to Georgia. A few months after Davis’ death, Georgia’s attorney general, Sam Olens 83L, offered some.

“When the death sentence is imposed in Georgia, it has been shown time and again that courts ensure the claims such as Davis’ are thoroughly reviewed,” Olens wrote in the Dec. 16 edition of the Fulton County Daily Report.

“In Davis’ case, he claimed he could prove his innocence and was given the extraordinary opportunity to do so. The fact that he failed in that effort should not undermine the sentence that was ultimately imposed. Our judicial system worked the way it was supposed to work, and justice was served for Officer MacPhail and Mr. Davis.”

The system— the Rule of Law — worked as it should, Olens says. For many, that’s enough. For others, how the system should work is something that could be changed.

Constant evolution

From the time she began her studies at Emory Law in 2009, Kate Thompson 12L observed the Troy Davis case with a scholar’s — and a prospective attorney’s — eye. Execution dates would pass, but despite the case’s visible flaws, new ones would be scheduled. Still, she figured that the system would correct itself.

“It seemed like a clear case where someone would step in and re-evaluate the situation, but that never really happened,” Thompson says. And when Davis was executed, following the U.S. Supreme Court’s denial of a stay, Thompson stepped in herself, and while it was too late for Davis, she thought, maybe it wouldn’t be for someone else.

Thompson gathered her thoughts, eloquently com.posed them and submitted an op-ed piece to The Augusta Chronicle, where it ran three days after Davis’ death.

“Some of the problems that took place in the Davis case were not necessarily unique to him,” Thompson says. “They may be present in cases that get less attention, so I thought that was the perspective I could offer as a law student.”

Thompson opened her column stating that she soon would pledge allegiance to a justice system that may have allowed the execution of an innocent man. But rather than vilify the entire legal enterprise, she instead used the Davis case as an example of how legal professionals must take active roles in continuing to reform a system that, after all, once denied women the right to vote.

“Part of the duty of every lawyer and every participant in the legal system is to constantly re-evaluate every situation and make sure that the results we achieve actually represent real justice and are good for our society,” Thompson says. “The system has been evolving since the beginning.”

Still a long way to go

“There is growing recognition around the world of the importance of the Rule of Law,” Schapiro says. And Emory plays a significant role in advancing knowledge through its work in Liberia, Mexico, the Republic of Georgia and China.

While the governmental, economic and social philosophies of nations such as the United States and China may differ greatly, the two can still respect and learn from one another’s legal systems through the Rule of Law.

The interpretations are broad. Parties may not agree and often advance their cases in direct opposition to one another. But across the country and increasingly around the world, the importance of the Rule of Law and adherence to it form the foundations of modern society.

“Many advances in public health and well-being are related to issues that are primarily legal and political—not scientific or medical,” Schapiro says. “So while vaccines can prevent disease and farmers can feed the hungry, the Rule of Law is necessary for delivering those vaccines and that food to those who need it.”

— by Eric Rangus

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