The Blog of Josiah M. Daniel, III

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"Ideological" as a category of legal analysis in McDonald v. Longley -- the need for a definition

I am mulling the new Fifth Circuit case McDonald v. Longley , which has held the requirement of membership in the State Bar of Texas as a condition to practicing law to be unconstitutional under the rubric of freedom of association. I intend to present a deep analysis of this decision--particularly illuminated by the history of the organized bar in Texas--in future posts, but for now I offer this observation: the appellate court is using a term not defined in the premier legal dictionary, Black's Law Dictionary (11th ed., 2019). In the first sentence and then a dozen times more in this new case, the Fifth Circuit uses the adjective "ideological," and it also uses the adverbial form three times and the noun once. Mostly the court uses the adjective in the catchphrase "political and ideological" (sometimes with "or" in the middle); but several times "ideological" used alone. Because the court found that the State Bar of Texas engages in certai

History . . . per Malcolm Gladwell

from Malcolm Gladwell, "Revisionist History," Season 1, Episode 10, The Satire Paradox: at MG 38:02 "If there's a lesson to the 10 episodes of this first season of Revisionist History, it's this: that nothing of consequence gets accomplished without courage. You can’t educate the poor without making difficult choices, without giving up some portion of your own privilege, you can't be a great basketball player without being willing to look stupid, you can’t heal your church without sacrificing your own career, you can’t even drive a car properly unless you're willing to acknowledge that you sometimes make mistakes, stupid, involuntary, dumb mistakes. The path to a better world is hard." MG 38:47 "Is that depressing? I don't think so. I think what's depressing is when we ignore everything history is trying to tell us."

Problems of relying on the internet to preserve scholarship and knowledge

Just read a disturbing essay in The Atlantic by a law professor on the topic of the instability of knowledge as supposedly preserved on the internet. His conclusion: "Society can’t understand itself if it can’t be honest with itself, and it can’t be honest with itself if it can only live in the present moment. It’s long overdue to affirm and enact the policies and technologies that will let us see where we’ve been, including and especially where we’ve erred, so we might have a coherent sense of where we are and where we want to go." Jonathan Zittrain, "The Internet Is Rotting," The Atlantic (June 30, 2021, available at https://www.theatlantic.com/technology/archive/2021/06/the-internet-is-a-collective-hallucination/619320/ I recommend this article....

Diversity and inclusion in the ranks of large firm lawyers

I am retired from the practice of law in a large law firm, but I keep my eye on issues law practice. This morning I read an article in the ABA Journal online titled "Demographics as destiny: Making the case for law firm diversity and inclusion." It reports: "in 2009 . . . women made up about 16% of [large] firms’ equity partners. Ten years later, that figure had risen only to 21%. It is a dreary gain, given the fact that more than 54% of law students at ABA-accredited law schools nationwide are women. . . . people of color made up 9% of equity partners and women of color only 3%. LGBTQI+ individuals were about 2% of all equity partners, and persons with disabilities were about 1%. The figures for these latter two groups are less certain, however, since many firms do not collect data on disabled or LGBTQI+ individuals. . . . . [Moreover, the] attrition rate among women, and particularly women of color, is high." And yet clients are demanding it, and the business r

I endorse the AHA Joint Statement on Legislative Efforts to Restrict Education about Racism in American History (June 2021)

Here are key sentences of this statement from the American Historical Association: "Knowledge of the past exists to serve the needs of the living. In the current context, this includes an honest reckoning with all aspects of that past. Americans of all ages deserve nothing less than a free and open exchange about history and the forces that shape our world today . . . ." https://www.historians.org/divisive-concepts-statement?fbclid=IwAR2JgNfO-IGwYDuFLZC_2stm4uRZMXJnDLgFhNVzD4qOkwHAG7eIWxJGb5M

Rudy Giuliani and the historic element of honesty in lawyering (about which I have written)

I have to confess that I find this an object lesson. Rudy Giuliani has been suspended from the practice of law in New York by the Supreme Court of New York, Appellate Division, for his dishonesty : "we conclude that there is uncontroverted evidence that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee." Attorney Grievance Committee v. Rudolph W. Giuliani , Case No. 202

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