The Association For Objective Law (TAFOL)

BULLETIN
#1 Spring 1989

l UP FOR GRABS
l OFFICER PROFILES
l THE NEW "CONSERVATIVE MAJORITY" AND REMEDIAL DISCRIMINATION
l SOCIAL INSURANCE
l PREVIEW
l STATUS OF PRO BONO PROJECT
l MEMBERSHIP PROFILE
l NEWS IN BRIEF
l U.S. SUPREME COURT ASKED TO OVERRULE ROE v. WADE
l ANNOUNCEMENTS

#1 Spring 1989 page 1

UP FOR GRABS

An excellent op-ed piece by Judge Alex Kozinski, who sits on the United States Court of Appeals for the Ninth Circuit, appeared in the January 31, 1989 edition of The Wall Street Journal under the headline, "Hunt for Laws' True Meaning Subverts Justice." Opposing what he refers to as the "subjectification of the law," Judge Kozinski says:

     Over the past half-century the idea that the law consists of objective rules has
     been supplanted by the view that it is a matter of the subjective intent of those
     who promulgate legal instruments."

Judge Kozinski's primary target in this article is the erosion of the traditional rule that in interpreting legislation, courts may not look beyond the language of the statute unless the language is ambiguous. Today, Judge Kozinski says, the language is not the "sole, or even the most significant, index of legislative will." Lawyers and judges, he reports, now routinely engage in a "scavenger hunt" through legislative history (the record of congressional discussions about proposed legislation) to try to patch together the "meaning" of statutes that were crystal clear to begin with. This is a process by which an objectively clear statute can be altered, glossed or totally changed by what a legislator thought it meant (actually, by what the lawyer or judge thinks a legislator thought it meant) before it was enacted---whether that legislator was right or wrong. Indeed, Judge Kozinski tells us, new "legislative intent services" for lawyers brazenly offer to help them "overcome the statute's 'plain meaning'."

Of course, "subjective" statutory interpretation goes hand in hand
with, and often begins with, ambiguous statutory drafting. Vague statutes call for subjective methods of interpretation which, once accepted, are not only applied to clear statutes, but also encourage the passage of further ambiguous statutes. Judge Kozinski suggests one interesting, and totally credible, way in which this relationship works. Legislators know that statutory language can be filled in by legislative history and consequently understand that vagueness in drafting is acceptable. Indeed, they use ambiguity as a "tool of political compromise." Congressmen who cannot agree on proposed legislation leave statutory language intentionally unclear, conflicts disappear and the legislation gets passed. Both sides can claim victory and can then hope for real victory in the courts by "sprinkling the record with contradictory snippets of legislative history."

All of this, of course, is heaven on earth for those who, in Judge Kozinski's words, assert that "drawing precise lines would be bad in that it would allow people to stay clear of the law." These are the power hungry who wish to make arbitrary decisions about what the law is and who should be punished. When objective rules of interpretation are forsworn and non-objective laws are sanctioned, determination of what is legally permissible becomes impossible and the law is up for grabs.

#1 Spring 1989 page2

OFFICER PROFILES

Arline Mann - President

Arline Mann, President of TAFOL, has been a "Wall Street lawyer" for all of her ten-year legal career, first as a litigator at Sullivan & Cromwell and now as Assistant General Counsel at Goldman, Sachs & Co., an investment banking firm. She says, "It seems to me that Wall Street throws into dramatic relief the wonder and power for good of capitalism and the evil of improper law."

Arline heard two "blazing" lectures given by Leonard Peikoff in 1970 and has been an Objectivist since. She now serves on the Board of Advisors of the Ayn Rand Institute. Arline says, "I loved my introductory, heady years of immersion in Objectivism, and I have no less a sense of something earthshaking happening now." She sees more organized activity now in Objectivism than there has been in her almost twenty years of involvement. "I think the main reason is that a second generation of Objectivists is reaching maturity and is ready to take action. With Ayn Rand gone, it's becoming clear that we have to do more ourselves."

Arline hopes that Objectivist lawyers will be able to put to work t heir special training and skills, understanding of Objectivism and feeling for the grandeur of the law through speaking, writing and working on projects such as mandatory pro bono. She also hopes TAFOL will encourage discussion of difficult issues in law and philosophy of law.

Sandy Franklin - Secretary

Sandy Franklin has been an attorney for over five years specializing primarily in Department of Defense contracting and computer law. Prior to law school, Sandy's adventures took her to over 30 countries, including an extended stay in Tokyo where she worked for Japanese attorneys.

Soon after law school, Sandy became a Captain in the Judge Advocate General's Corps of the Army, doing the legal support for large-scale computer buys Army-wide. Since leaving the Army just over two years ago, Sandy has continued doing contracting and intellectual property work for defense contractors and computer developers. Currently, she is an attorney in the Advanced Research department of General Dynamics Land Systems.

Sandy was introduced to Objectivism when her mother gave her Atlas Shrugged to read when she was 15 years old. A summer of reading Ayn Rand gave Sandy a lifetime of guidance on how to conduct her personal and professional life. It wasn't until The Jefferson School "Intellectual Foundations of a Free Society" conference in the summer of 1987, however, that she met other Objectivists and formed the relationships which led to the founding of The Association for Objective Law last spring. She is on the Board of Directors and acts as Secretary for TAFOL and as Editor for TAFOL's newsletter.

#1 Spring 1989 page 3

THE NEW "CONSERVATIVE MAJORITY" AND REMEDIAL DISCRIMINATION

Commentators are heralding (or decrying, as the case may be) the United States Supreme Court's opinion in City of Richmond v. J. A. Croson Company, 55 U.S.L.W. 4132 (1989), as a turning point in the philosophical outlook of the Supreme Court and, more specifically, its view of "remedial" or "reverse" discrimination. In fact, although the Supreme Court's holding in Richmond is a tiny step in the right direction, each of the five separate opinions filed endorse the incorrect assumptions underlying not only remedial discrimination but most of the intrusions into individual rights made by the courts in the twentieth century.

The case involved a Richmond plan requiring all prime contractors for City of Richmond projects to subcontract thirty percent of public works funds paid on the project to minority-owned contracting companies. The plan stated that it was remedial. An application for waiver could be made on the basis of impossibility. According to The New York Times of January 25, 1989 (pg. A18), some 36 states and 200 local governments have such remedial plans establishing quotas or requiring reasonable efforts to include minorities on government projects.

In the Richmond case, J. A. Croson Company, the prime contractor, could not find a minority contractor to perform the requisite portion of the plumbing project at issue. Croson submitted its bid and requested a waiver. Subsequently, a minority company willing to do the job came forward, but its participation would have led to an $8000 increase in the cost of the work. J. A. Croson (which was the only bidder), asked the City to raise the contract price or waive the minority participation requirement. The City refused both requests and said it would have the project rebid. J. A. Croson sued and the case eventually reached the Supreme Court.

As lawyer and law student readers will know, for most of the twentieth century, analysis of the Equal Protection Clause of the Fourteenth Amendment to the Constitution has involved level upon level of error. First, it is assumed - as it is in all areas of constitutional law - that rights are not absolute, and may be overridden if there is a sufficient government interest, which is "balanced" against the right. In balancing the right to equal protection and the governmental interest, the courts have established a tiered system of review: certain "suspect classifications" (such as race) or intrusions into "fundamental" rights are subject to more rigorous examination ("strict scrutiny") in determining whether the government action was justified. In cases requiring strict scrutiny, the right may still be curtailed, but only on a showing of "compelling" state interest. In other cases, the right may be overridden if there is a "rational relationship" between the government action and the governmental interest being pursued.

Of course, this Byzantine analytical superstructure could be swept aside in a moment if it were understood that rights are absolute and cannot be "balanced," that government can never discriminate on the basis of race and that there is no need for "scrutiny," strict or otherwise. No such suggestion is made in the Richmond case.

The "turning point" in the Richmond decision is the agreement of a majority of Justices that "strict scrutiny," rather than a relaxed standard of review, applies to remedial discrimination by the States, as well as to plain old discrimination, and that the discrimination must really be remedial; there must be specific evidence of past discrimination. (Understand that this does not mean evidence of discrimination by the government against a particular individual - just a pattern of discrimination in some school district, industry, etc. In this case there was little evidence of discrimination with respect to City construction projects beyond statistics showing the participation of minorities. As Justice O'Connor pointed out, the Richmond plan defined "minority" to include Aleuts, when it may very well have been that no Aleut ever lived in Richmond, much less tried to obtain a City subcontracting award.) This, pitifully, is as far as the touted new "conservative" Supreme Court got in its main opinion; there is no hint of the absolutism of rights, no suspicion that perhaps "suspect classification" analysis is discriminatory in its own right; there is just the announcement that while State governments may discriminate, and may do so for the purpose of remedying past discrimination, they must be able to show that there was discrimination in the past and that the plan they adopt is appropriate for the remedial purpose.

#1 Spring 1989 page4

Justice Scalia, who wrote a separate opinion, got a bit further; he strongly opposes any racial preferences for remedial purposes, except where absolutely necessary to dismantle a discriminatory system (e.g., raising the pay scale of blacks currently being paid less than whites) or to remedy discrimination against an identified victim (e.g., firing a white man to give the job to a black man wrongly denied the job because of race). Of course, neither of these examples reflects a racial preference or discrimination, but merely an elimination of a racial preference. Indeed, with respect to discrimination in general, whether remedial or not, Justice Scalia believes there should be no governmental classifications unless justified by some "imminent danger to life and limb," such as a race riot in a prison requiring temporary segregation of inmates. However, Justice Scalia's opinion rests upon and expressly sanctions "strict scrutiny" analysis. Remedial discrimination is, in Justice Scalia's view, constitutionally offensive because it cannot pass strict scrutiny; temporary segregation in a prison riot can.

The Richmond case is not a step backward. In practical terms, it may result in the elimination of some remedial discrimination plans. (The application of strict scrutiny, historically, has generally resulted in disapproval of the state action under consideration.) It does not signal a significant change in philosophical approach. In fact, that is the significance of the Richmond case. Contrary to all reports, there has been no fundamental change as a result of the new conservative majority on the Supreme Court and there will not be, until basic philosophical premises are questioned.

SOCIAL INSURANCE

A recent Wall Street Journal review of a new book, Liability: The Legal Revolution and Its Consequences, stated: "Peter W. Huber's absorbing work explains in crisp, elegant terms what happened, starting about 30 years ago, when a small but influential group of activist judges and academics . . . took it upon themselves to transform the tort system into a social insurance program."

Liability: The Legal Revolution and Its Consequences (Basic, 260 pages, $19.95) chronicles the decline of legal principles such as duty and proximate cause in favor of concepts such as wrongful life and negligent infliction of emotional distress, concepts which have encouraged jurors to be guided by their "natural sympathy" for plaintiffs.

Huber shows how astronomical punitive damages, including damages for psychological injuries, have driven insurers out of the U.S. market; London insurers, for example, have declared America "now as unpredictable from an underwriter's point of view as a banana republic."

Mr. Huber cites the lack of insurance and the fear of crushing liability as a major obstacle to experimentation, sapping our economy of creative enterprise. He also introduces us to another consequence of the trends in tort liability, "cookie cutter consumers;" persons with uniform needs, preferences and sensitivities with no stomach for risk, who are totally incapable of judging their own self-interest.

PREVIEW

Among the features in our next newsletter will be articles on the Soviet Constitution and the Critical Legal Studies movement, and updates on the TAFOL projects and activities described herein.

Justice Scalia, who wrote a separate opinion, got a bit further; he strongly opposes any racial preferences for remedial purposes, except where absolutely necessary to dismantle a discriminatory system (e.g., raising the pay scale of blacks currently being paid less than whites) or to remedy discrimination against an identified victim (e.g., firing a white man to give the job to a black man wrongly denied the job because of race). Of course, neither of these
examples reflects a racial preference or discrimination, but merely an elimination of a racial preference. Indeed, with respect to discrimination in general, whether remedial or not, Justice Scalia believes there should be no governmental classifications unless justified by some "imminent danger to life and limb," such as a race riot in a prison requiring temporary segregation of inmates. However, Justice Scalia's opinion rests upon and expressly sanctions "strict scrutiny" analysis. Remedial discrimination is, in Justice Scalia's view, constitutionally offensive because it cannot pass strict scrutiny; temporary segregation in a prison riot can.

The Richmond case is not a step backward. In practical terms, it may result in the elimination of some remedial discrimination plans. (The application of strict scrutiny, historically, has generally resulted in disapproval of the state action under consideration.) It does not signal a significant change in philosophical approach. In fact, that is the significance of the Richmond case. Contrary to all reports, there has been no fundamental change as a result of the new conservative majority on the Supreme Court and there will not be, until basic philosophical premises are questioned.

#1 Spring 1989 page 5

STATUS OF PRO BONO PROJECT

"If a proposal by the New York City Bar Association is adopted, lawyers will no longer be permitted to practice law without performing part-time charity work." Thus began the article "Lawyers as public servants" in the November 15, 1979 issue of The Intellectual Activist. The article went on to point out that, since the proposal was based on the principle that there are no rights, it would result in the complete enslavement of lawyers and, eventually, all practitioners of licensed professions.

The movement to declare lawyers serfs continues in New York and is spreading. In the federal forum, the Supreme Court is being asked to interpret 28 U.S.C. Section 1915(d), which allows a judge to request that an attorney handle a case for an indigent as requiring the attorney to accept the appointment. Gerald A. Norlander, a member of the New York Chief Judge's Committee to Increase the Availability of Legal Services, supports this interpretation: "An overly literal reading of Section 1915(d) apparently led the [objecting] lawyer to believe that a federal judge's 'request' could be declined." Mr. Norlander, of course, supports mandatory pro bono. He regards any due process, involuntary servitude, or equal protection claim on the part of a lawyer as a "constitutional canard."

Similar efforts are underway in Florida, Louisiana and Oregon. ("Judging from their lifestyles, doctors and lawyers alike would survive well if they were in a sort of Oregon Peace Corps for doctors and lawyers for a year or so after they have paid off their college loans. (Quoted from the ABA Journal.) Tulane University Law School requires that each student work at least 20 hours for indigents before graduation. The Chief Justice of the Arizona Supreme Court "would prefer to see a voluntary effort" but is considering proposing the mandatory alternative. The official policy of the American Bar Association is that every lawyer should devote at least 50 hours to public service activities (although this has been given a broad interpretation).

There has been some principled opposition. (See the report of Mr. Bowden's activities in the October 26, 1988 issue of this newsletter.) TAFOL intends to be active in its opposition to mandatory pro bono. Our first step will be the preparation of a position paper. A number of members have responded to our previous request for assistance, but we will be happy to have more volunteers. Please keep us advised of any activity in your jurisdictions.

MEMBERSHIP PROFILE

TAFOL now has 54 members: 30 lawyers, 12 students and 12 supporting members. The lawyers reside in fifteen states and are admitted to practice in twenty-three states and countries: Arizona, California, the District of Columbia, Delaware, Florida, Georgia, Illinois, Indiana, Louisiana, Maine, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, Ohio, Texas, Virginia, Washington and Belgium, Canada and Israel. TAFOL lawyers practice before eighteen federal district courts, as well as the Tax Court, The Court of Claims and the federal Boards of Contract Appeals. Seven members are admitted to practice before the United States Supreme Court.

Fourteen TAFOL members belong to the American Bar Association. We are also represented in the bar associations of eighteen states and two cities. Our expertise encompasses: administrative litigation, antitrust, appellate practice, business law, civil litigation (with various specialties), computer law, constitutional law, corporations, criminal law, defense contracting, employee benefit plans, family law, health law, immigration, intellectual property, international exporting, municipal law, personal injury, real estate, securities, taxation (federal and state), torts, and trade regulation.

Student members of TAFOL attend Boston University, Hastings College of Law, Indiana School of Law, Louisiana State University, New York Law School, Southern Methodist University, UCLA Law School, University of Michigan, University of Wisconsin, and Ventura College of Law.

A number of TAFOL's members are not in the legal profession but wish to cooperate with our efforts to apply Objectivism to the law. They have various occupations: president of a money management firm, product engineer, account manager in sales, senior research specialist with an oil company, and vice president of marketing.

#1 Spring 1989 page6

NEWS IN BRIEF

Anti-abortion groups demonstrated at the Paris headquarters of Groupe Roussel Uclaf., a pharmaceutical company that manufactures RU 486 - a drug that may, in some circumstances, induce abortions. Yielding to pressure, Roussel executives announced that the company would cease distributing RU 486. Within 48 hours, the French Government stepped in and told Roussel to continue producing the drug. Abortion is legal in France and RU 486 may offer a safer and more humane alternative to surgical intervention. While the French Government's use of force is not to be condoned, our government, under the Reagan Administration, erred in the opposite direction by withdrawing funds for clinics that support abortion and giving funds to church-sponsored "chastity" programs, and by recommending that abortion clinics be taxed. It is interesting to note that Right-to-Lifers have blocked the release of an anti-ulcer medication in this country because there is a possibility of induced abortion in some pregnant women, despite the fact that the drug could save thousands of lives and there is a label warning of the potential for induced abortion.

* * *

In Great Britain in the last decade, occupations ranging from steelworker to stockbroker have been transformed by the relentless application of Prime Minister Margaret Thatcher's free-market principles. Overhaul of the legal system is part of an assault on restrictive practices in the professions and a broader campaign to make Britain a freer society. The many proposals, if enacted, would transform virtually every facet of the legal profession, including training, certification, regulation and competition. Under the new plan, the "right of audience" in court would be open to solicitors for the first time, but would still be subject to licensing by the government which would grant licenses based on merit and experience. Some barristers have argued that granting the government the power to license those who can appear in court could enable it to exclude lawyers who champion unpopular causes. The plan would effectively abolish the distinction between solicitors and barristers and would allow contingency fee arrangements. Barristers have been strictly "trial lawyers" with solicitors being the only lawyers allowed to deal directly with the public.

* * *

The Federal Trade Commission ordered Detroit-area auto dealers to be open for business 64 hours a week. Dealers are currently open 50 hours per week. It is the first time ever that the Agency has mandated minimum operating hours for businesses. The ruling, announced March 2, overturns a decision by an administrative law judge dismissing antitrust charges that had been pending against the dealers since 1984. The Commission had accused dealers of conspiring to limit their hours of operation since the 1960's. The dealers have argued that restricted hours, compared to operating hours in other major cities, allow them to keep costs down and offer the most competitive prices in the country. The dealers are outraged and plan to appeal.

* * *

Pennwalt Corporation and one of its plant managers were recently indicted on felony charges of negligence for an accident which occurred over three years ago: a storage tank containing sodium chlorate had collapsed, discharging allegedly hazardous chemicals into the nearby waterway. The defendants are among a growing number of corporations - and their managers - that have felt the sting of the federal government's stepped-up criminal environmental enforcement efforts. Their lawyers say the government is using the criminal provisions of the federal environmental laws unfairly and that criminal charges should be filed only in instances of deliberate misconduct, but apparently none oppose environmental laws on principle. Corporations have had to comply with civil environmental laws for years, but criminal cases were rare until the Justice Department established a special environmental crimes section in 1982. While only 25 cases were prosecuted by the federal government during the 1970's, there have been 468 indictments since 1982. Among the companies that have been indicted on environmental charges: Texaco Inc., which pleaded guilty to charges of failing to conduct off-shore safety tests and was fined $750,000, and Orkin Exterminating Co., which was found guilty of improper use of a pesticide in a home fumigation and was fined $500,000. Over $13 million in fines have been assessed against individuals and jail terms totaling 200 years have been imposed. One defense attorney said, "We're talking about responsible corporate officials with spotless records being branded as criminals." The head of the environmental crimes section from its beginning until last fall, said, "The level of apprehension is not yet at a healthy level."

#1 Spring 1989 page 7

U.S. SUPREME COURT ASKED TO OVERRULE ROE v. WADE

On January 9, 1989 the United States Supreme Court noted probable jurisdiction in the case of Webster v. Reproductive Health Services in response to an appeal of an Eighth Circuit decision that declared several anti-abortion provisions of a Missouri statute unconstitutional. In its appeal, the State of Missouri requested that the Supreme Court reconsider Roe v. Wade, 410 U.S. 113 (1973), the Supreme Court decision that declared that women have a constitutionally protected right to obtain an abortion. On November 10, 1988, two days after the Presidential election, the Reagan administration filed an amicus brief in support of Missouri's request that Roe v. Wade be reconsidered and recommended overruling that decision. Approximately thirty substantive briefs have since been filed with the Supreme Court by the appellant and amici. Several, including that of the Solicitor General of the United States, urged that Roe v. Wade be overruled.

Webster v. Reproductive Health Services addresses the issue of whether a state government has the right to prohibit taxpayer dollars from being used in conjunction with abortions which are not necessary to save the life of the mother. Missouri's statute outlaws, inter alia, the expenditure of "public funds" for the purpose of encouraging or counseling a woman to have an abortion, prohibits any "public employee" from performing or assisting an abortion within the scope of his employment, and proscribes the use of any "public facility" for the purpose of performing or assisting an abortion.

An additional provision of the Missouri statute requires a physician to make a determination of fetal viability when he has reason to believe a fetus is of twenty or more weeks gestation, and to perform such tests as are necessary to make that determination. Finally, Missouri's abortion statute contains a preamble, supposedly without substantive effect, which states that life begins at conception.

The Eighth Circuit found each of these provisions of the statute, including the preamble, to be unconstitutional. Reproductive Health Services v. Webster, 851 F.2d 1071 (8th Cir. 1988). The State of Missouri appealed.

Board members are developing an op-ed article, in conjunction with the Ayn Rand Institute, opposing any effort to deny a woman the right to an abortion.

Two recent rulings of the California Supreme Court confirm the principle that torts committed in the service of a religious belief can result in liability despite the free-exercise-of-religion clauses of the state and federal constitutions. One case involved the liability of a parent for not obtaining medical help for her child, who eventually died. The other case involved allegations of willful misrepresentation by members of the Unification Church of Reverend Moon in their recruiting practices, which resulted in emotional and financial damages. The trial court granted summary judgment to the Church on the ground that the Church's activity was protected by the free-exercise clauses. The intermediate appellate court affirmed, but the California Supreme Court reversed, stating that "while religious belief is absolutely protected, religiously motivated conduct is not."

* * *

A case in Texas is testing, apparently for the first time, the federal government's power to punish doctors for "dumping" their indigent patients on charity hospitals. A Texas doctor was fined $25,000 for having a pregnant woman transferred to a charity hospital after having determined that she was not in active labor. The doctor's refusal to pay the fine led to a four-day hearing last month. The law under scrutiny permits a patient transfer if the "benefits"
outweigh the "risks" to the patient and if the patient is "stabilized." Kirk Johnson, the AMA's general counsel, sees this as a significant case because the government will go after more "scalps" if it wins.

#1 Spring 1989 page 8

ANNOUNCEMENTS

TAFOL plans to sponsor several events at The Jefferson School's 1989 summer conference, which will be held August 6 through 20 in San Diego. Events will include a party for TAFOL members, a meeting on TAFOL's plans and objectives, and a presentation or discussion on a substantive legal issue, open to any TJS attendees. Details will be announced in the next newsletter.

All four TAFOL Board members are planning to attend Dr. Leonard Peikoff's Ford Hall Forum lecture, and the related activities, in Boston on April 23. If any TAFOL members, or any other persons interested in TAFOL, are planning to attend and would like to meet with us, please let Sandy Franklin know at [omitted]. Sandy is also acting as Editor of this newsletter and will be pleased to accept articles from TAFOL members, which will be considered for future newsletters. TAFOL is planning to continue the more substantive form of this newsletter in future newsletters on a quarterly basis. There will also be occasional Announcement Bulletins sent to members.

Steve Plafker is now the pro bono committee chairman. He has a large library of pro bono materials, including materials from the ABA, which members may request for a copying fee. Steve's address is [omitted]. Dee Tagliavia is chairing TAFOL's efforts to direct letters or position statements to the media, and will be looking for assistance from TAFOL members. Dee's address is [omitted].

TAFOL would like to acknowledge Joseph Remillard's donation to TAFOL of the copyrighted design which appears on the front of this newsletter and which has been adopted as TAFOL's logo. We are very grateful to Mr. Remillard for donating his design and we hope it will serve as a symbol of objective law to our readers.
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