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Legally Thinking

May 29, 2020 by Jim 2 Comments

Mount Rushmore

 

My brother, Philip Redwine, that is Philip spelled with the Biblical one “l”, graduated from the Oklahoma University Law School while I was an undergraduate at Indiana University. When I asked him what he had been taught he told me the entire process boiled down to “learning to think like a lawyer”. When I excitedly quizzed him about that arcane and mysterious subject he replied the whole three years of law school could be summarized by the following story:

“A client asked his attorney for advice as to whether he should file for a divorce. The client told the attorney that each time he tried to climb the stairs to the second floor of the couple’s home his wife would kick him back down. The man said to the attorney, ‘Doesn’t that show she doesn’t love me anymore?’ The attorney reflected on the situation and thoughtfully responded, ‘Either that or she just doesn’t want you upstairs.’”

So, to think like a lawyer means to objectively consider a situation from all sides and apply any relevant analogies to it. After three years of my own legal education at Indiana University, then ten years practicing law and forty years of being a judge, my conclusion is my brother was right and that lawyer-type analysis requires imagination and objective open-mindedness. I respectfully suggest we may want to try this approach to our COVID-19 impacted situation as some of our greatest legally trained presidents might have done. Yes, we must act now but we should do so with wisdom, courage and imagination.

Vision and objectivity have certainly been displayed by several of our greatest non-legally trained presidents. George Washington and Theodore Roosevelt readily come to mind. However, I would like to discuss with you a few of our legally thinking leaders who helped guide us through tough times by having the ability to seize opportunity from crisis by winnowing the wheat from the chaff.

Thomas Jefferson saw the Louisiana Purchase of 1803 and the Lewis and Clark Expedition of 1803-1806 as a means of expanding the United States from the Atlantic to the Pacific and discovering the untold resources of our country. Jefferson did this at a time when most Americans still feared, or too much admired, Great Britain. And he had to maneuver the funding through a skeptical Congress.

The Golden Spike

Abraham Lincoln was faced with the possibility of California seceding from the Union and with slavery remaining as a state option even if the South were defeated. He boldly issued the Emancipation Proclamation in 1863 and that same year signed the bill funding the Intercontinental Railroad. Lincoln did not live to see the golden spike driven at Promontory, Utah on May 10, 1869, but his use of grants of public lands and issuance of bonds helped preserve the Union he so admired.

Franklin Roosevelt saw the need for a great infusion of public funds for the education and re-employment of our out-of-work Americans during the Great Depression. Thanks to his vision America was much better prepared to respond to Japan and Germany in World War II.

John Kennedy started us on the elliptical route to the moon as financed with public monies. The vast number of jobs, products and conveniences the Space Program brought are still being enjoyed by our citizens.

I do not cite these heroes’ legal training as required for a novel approach to the Novel Virus. Millions of Americans can see that borrowing trillions of dollars to help people for a short time merely delays the pain. A cure requires applying our resources with a long view. We can invest in ourselves for the future while helping those in need now.

Germany’s Autobahn

One need not be a lawyer to see an issue such as COVID-19 from all sides and apply similar solutions as were used in similar prior crises. President Eisenhower was a West Point trained soldier who planned the greatest military invasion in history and could envision the benefits from a German Autobahn-type interstate highway system for America. And my friend, Warren Batts, is not an attorney but a rock ’n roll musician who suggests we could build a national high speed railway passenger system utilizing the middle portion of our already existing interstate rights-of-way between the separated lanes of traffic.

What we need, from our lawyers and non-lawyers combined, is the vision to prepare for our new society as it will surely be transformed by the Corona Virus. We will be changed but we can transform not regress. New skills can be taught using public funds as we did with the Lewis and Clarke Expedition, the Transcontinental Railroad, the Civilian Conservation Corps and the Space Program.

I realize these are not new ideas. That is my legally thinking point. You, Gentle Reader, will surely have several similar suggestions of your own, which I encourage you to share.

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Filed Under: America, COVID-19, Gavel Gamut, Indiana University, Law, Law School, Slavery, War Tagged With: Abraham Lincoln, Civilian Conservation Corps, Congress, Corona Virus, COVID-19vision, Emancipation Proclamation, Franklin Roosevelt, From the Atlantic to the Pacific, Gentle Reader, George Washington, German Autobahn, Germany, Great Britain, Great depression, imagination, Indiana University, Intercontinental Railroad, interstate highway system, James M. Redwine, Japan, Jim Redwine, John Kennedy, learning to think like a lawyer, legally thinking, legally trained, Lewis and Clark Expedition, Louisiana Purchase, national high speed railway passenger System, objective open-mindedness, objectivity, Oklahoma University Law School, Philip Redwine, President Eisenhower, slavery, Space Program, Theodore Roosevelt, Thomas Jefferson, Warren Batts, West Point, World War II

A Summer Place (Not the Movie)

July 16, 2018 by Jim Leave a Comment

I was married, had a son and was broke when I started Law School in Bloomington, Indiana in the summer of 1968. Although I was working full-time on a night stock crew at a Kroger’s grocery store and was receiving the G.I. bill for my Air Force service, our family just made it. My mission was to get out of school as quickly as possible. I.U. allowed 44 of us new law students to enroll on a new 27-month plan instead of the normal three years with three summers off. Only 6 of us completed the program where we actually started in June 1968 and took the Bar Exam in the summer of 1970 before we graduated in August.

What this did for my family and me was to allow me to become a lawyer when that would not have been possible had we had to remain in Law School another year. My G.I. Bill benefits were used up by the spring 1970 semester and we could not survive on my Kroger pay.

Now I will leave it up to my past clients and those who have appeared in front of me as judge to determine if I.U. made an error in judgment in allowing me to cram three years of education into two. But as for me it was a necessity. However, it also showed me how the summertime, when most Law Schools are not in session, could be put to use.

Another long-term association I have had as judge is with the National Judicial College in Reno, Nevada. While NJC does conduct summer continuing education sessions for judges from every state and many foreign countries, these courses, due to the demands of working judges’ schedules, usually are a maximum of two weeks. In two weeks judges can have existing skills more finely honed. However, the in-depth education and training one should experience before being charged with the thousands of critical judging decisions affecting our citizens requires a greatly expanded curriculum and much more time. Unfortunately, in America today all judges get their judicial education after they become judges. Such a system of on-the-job training might work well for workers on a night stock crew, but it is anathema to receiving equal justice from new judges.

In some countries, the pool of potential judges is formed in Law Schools where those who wish to someday be a judge must complete a rigorous and specially designed regimen. That is in contrast to America where if one wishes to be a judge all that is required is that he or she graduate from a law school. And in Law School not even the law professors are likely to have a clue about what a judge’s role really entails.

What I suggest is a system of developing a pool of attorneys who have a Law School specialty of Judging much as in medicine where one must be trained as a neurologist before they operate on someone’s brain. Naturally the students who want to later be considered for election or appointment as judges should have at least all the education and training of any attorney who will appear in front of the judge, so the judicial specialty must call for additional Law School time just as a medical student who wants to specialize needs extra education and time. I suggest the three summers of a Law School education are a natural fit for a Judicial Specialty. I will more fully address these issues in future columns. Try to curb your excitement.

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Filed Under: Gavel Gamut, Indiana University, Judicial, Law School, National Judicial College Tagged With: Bloomington Indiana, Indiana University, James M. Redwine, Jim Redwine, Judicial Speciality, law school, National Judicial College, Reno Nevada

Judicial Bias

June 16, 2018 by Jim 1 Comment

The National Judicial College has asked me to submit an article on Implicit Judicial Bias for inclusion in its magazine, Judicial Edge, because unfortunately, as proven by the #MeTooMovement, Ferguson Missouri, and our current political climate, implicit bias is all too explicit in the good ‘ole U.S. of A even in our courts. Therefore, I have submitted the following article to NJC and since judges throughout America may be wasting their time reading it, why, Gentle Reader, shouldn’t you? Here it is.

A syllogism: All sentient humans have learned implicit biases, all judges are sentient human beings, ergo, all judges have implicit biases. The issue is not are judges biased. The issue is how can judges guard the people affected by the judge from her/his particular biases.

Bias is a learned characteristic. Churches, mosques, synagogues, schools, news media, entertainment, sports organizations, hobbies, political parties, legal institutions, families and friends are just some of the many teachers. I discovered some of my own predilections as a law student at Indiana University School of Law in Bloomington. In the entire student body there was one African American male, three white females, fewer than five Jews, no Arabs and one Oriental male. In 1968-1970 that mix seemed fine to me. Most students looked and sounded like me. Those who did not did not raise any issue about it nor did I.

As a practicing attorney for ten years I never appeared in front of a female, Black or Asian trial judge. I did appear in front of one Jewish trial judge a few times; it was okay. I realize the demographics of law schools and trial courts have changed greatly in fifty years. My concern is the learned biases may have survived the new order, at least in the general behavior of the judiciary. Or, if some implicit biases have withered in the face of changing faces, have those prejudices morphed into others?

When faced with trying a case with a Black protagonist or antagonist I sometimes remind myself of a case I prosecuted in 1974. The defendant was a coal-black, dreadlock wearing frequent flyer whom I had prosecuted for two prior felonies. His experienced white attorney pleaded for the defendant to not take the stand in front of the white judge and white jury and subject himself to my fiery cross-examination and the exposure of his unappealing rap sheet. However, the defendant loudly professed his innocence, of at least the crime in question, and demanded to tell his story. I was salivating.

George Willie …, the defendant, took the stand, looked each juror in the eye and said, “I may be a criminal, but I did not break into that building and steal that television.” Then he turned to me and said, “Redwine, why is you always after me? We should be on the same side, the white man stole your land!”

Well, the jury agreed with George Willie and I learned a lesson about my own implicit bias and George Willie’s. I just hope I never forget to apply this knowledge when I am judging others. I must acknowledge my implicit biases, bring them up in my analysis and then prevent them from affecting my judicial behavior and judgments. Of course, the knowledge a problem exists and the understanding it should be addressed do not guarantee a sentient judge will apply lessons learned to learned biases.

George Willie’s bias as represented in his assumption I was a Native American and therefore must be prejudiced against the white power structure was a revelation to me. I was born on the Osage Nation where Indians were an assimilated part of the power structure. My friends were Indian and white but to me they were just friends. Until George Willie’s bias placed me in a minority, I had never experienced the sense of being different or less than the majority. Thanks, George Willie. It was instructive that where I saw no difference in whites and Indians, I had learned in the segregated culture of Oklahoma in the 1940’s, 50’s, 60’s and 70’s to make negative judgments about African Americans.

The following is another example, there could be many, of my own implicit biases. I served in a case in which a twelve-year-old African American girl claimed she was raped by five teenaged African American males. My instincts led me to believe her in that case of sexual misconduct because she was first of all female and secondly young. But, I regret to admit, because the defendants were young, Black males, I found myself almost apoplectically unable to fairly judge the young men who had been waived to adult court and faced many years in prison. Fortunately, the local Black community was not subject to my particular biases. Several Black witnesses stepped up and established the girl was more a juvenile Jezebel than an ingenue. As the evidence developed, I realized I could have easily allowed my prejudices to help create several grave miscarriages of justice. Fortunately, the jury saw things more objectively.

So, as a judge I endeavor to remember the all-white church where I spent my first eighteen years, the mostly white law school where I studied precedent while failing to recognize prejudice and the practice of law in which what I thought was open mindedness was nearer myopia. Today when judging I strive each day to unlearn those lessons.

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Filed Under: Gavel Gamut, Indiana University, Judicial, Law, Law School, Osage County Tagged With: #MeTooMovement, African American, Arabs, Asian, bias is a learned characteristic, Black community, current political climate, Ferguson Missouri, Gentle Reader, Implicit Judicial Bias, Indian, Indiana University School of Law in Bloomington, James M. Redwine, Jews, Jim Redwine, Judicial Edge, National Judicial College, Native American, Osage Nation, segregated culture of Oklahoma, the white man stole your land, white females

The Harder Right

December 1, 2017 by Jim Leave a Comment

Gentle Reader do not despair. We have reached the final week of our discussion of the Internet course for Rural Court Judges. You will no doubt recall our previous sessions on the scintillating topics of Rural Court Case and Court Management. Well, the best is yet to come. I only wish we could hear from the student judges from Alaska to Maryland who attended the seven week National Judicial College course that I helped teach. Surely they were filled with the same excitement I felt as an Indiana University freshman law student during Contracts classes, perhaps much as you have been while reading Gavel Gamut the past few weeks. But, all good things must come to an end so let us summarize what we have studied.

We started with the proposition that the most essential criterion for being a Rural Court judge, or any judge, is good character. Intelligence and industry are fine attributes but ring hollow if a judge cannot choose the harder right over the easier wrong. As Socrates told his Athenian judges who tried to have it both ways, “Your job is to do justice, not make a present of it.”

You may remember the prescient observation made by Alexis de Tocqueville (1805-1859) when he wrote of his impressions of America in Democracy in America: “In America practically every political question eventually becomes a judicial one.” Of course, for those questions to be answered properly the judiciary must be fair and impartial and the public must have confidence they are; politics must not enter into a judge’s decisions.

That astute one-time Hoosier Abraham Lincoln who knew a little bit about politics and a lot about judging saw the legal profession’s role as to first be peacekeepers. To keep the peace judges must enjoy the public’s confidence in the absolute impartiality of judicial decisions. Character is the cloak that must robe a judge.

And when a judge is faced with those difficult cases where he or she is tempted to slip off the blindfold and tip the scales of justice, the only refuge a judge has is his or her character. That is what judges heard during our Internet course and what Bobby Kennedy meant when he said, “Some see things as they are and ask, why? I dream what things could be and ask, why not?”

Of course, society often rewards those of weak character and severely punishes those who choose the harder right. But that pressure is what judges must withstand. So where we start and end our course on Rural Court judges is the same proposition: judges must keep the blindfold on and their thumbs off the scale.

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Filed Under: America, Circuit Court, Democracy, Gavel Gamut, Indiana University, Internet class, Judicial, Law School, National Judicial College Tagged With: Abraham Lincoln, Alexis de Tocqueville, Bobby Kennedy, character is the cloak that must robe a judge, Contracts class, Democracy in America, Gentle Reader, Indiana University freshman law student, Internet course, James M. Redwine, Jim Redwine, judges must enjoy the public's confidence, judges must keep the blindfold on and their thumbs off the scale, judiciary must be fair and impartial, National Judicial College, peacekeepers, Rural Court Case and Court Management, Rural Court Judges, Socrates, the easier wrong, the harder right

A Loyal Alumnus

November 4, 2016 by Jim Leave a Comment

As a graduate of Indiana University I felt I should do my part in helping IU raise money by selling naming rights to school properties. You may have heard IU recently renamed the Bloomington Law School and the basketball gymnasium for $35 million and $40 million respectively. These events transpired pretty much in dark rooms at midnight. I suggest if this publicly funded institution wishes to maximize its pay for play naming game it should establish a schedule of prices and let everyone know how and for how much they may honor themselves by having their names pasted on university assets. Let’s open the bidding.

First we must establish how much Indiana University costs Hoosier taxpayers, then set relative values for selling off its pieces. The state of Indiana established IU in 1820 and has funded it with tax revenues each year. For fiscal 2015-2016 Hoosiers provided $3.27 billion dollars for all the state’s IU campuses. That gives us a reference point for setting relative values for the naming of individual assets such as buildings and departments.

Of course, there are other considerations besides price. For example, we should not condone the naming of our state-owned property for persons of unsavory character. An Al Capone library might not resonate with intellectual pride nor would a Bernie Madoff Economics Department. Surely we are not just for sale to all comers.

However, if the mysterious committee that decides to sell the names of public edifices and other assets has some guidelines in place we might be able to help finance everything from sports to astronomy. But in fairness, a list of things and their prices should be publicized so we all have an opportunity to participate. I have a few suggestions:

Assets                                                              Naming Price

The Whole Enchilada (IU)                           $3 and ¼ billion

Football Stadium                                            $100 million

Baseball Field                                                  $  10 million

Soccer Field                                                     $    1 million

Natatorium                                                      $   500,000

Student Union                                                 $   100,000

Library                                                              $     50,000

English Department                                       $     40,000

Physics Department                                       $     30,000

Philosophy Department                                $     20,000

Sociology Department                                   $       5,000

Music School                                                   $        1,000

History Department                                      $           500

Dining Halls                                                    $           100

Restrooms                                                                ???

The folks who currently decide to sell these things are in a better position than I to set actual prices. These are just a few respectful suggestions as to the relative value of some of IU’s elements as might be seen from some of the public’s and the Committee’s perspectives. I hope we can arrive at a meeting of the minds over how best to encourage contributions.

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Filed Under: Basketball Gymnasium, Gavel Gamut, Indiana, Indiana University, Law School, Personal Fun Tagged With: Al Capone, basketball gymnasium, Bernie Madoff, Hoosier taxpayers, Indiana University, IU Bloomington Law School, James M. Redwine, Jim Redwine, naming rights to school properties, pay for play naming game, university assets

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