Joan P. Vestrand
Associate Dean, Ann Arbor Campus
Thomas M. Cooley Law School
3475 Plymouth Road
Ann Arbor, Michigan 48105
Tel: (734) 372-4900, ext. 8777
Fax: (734) 372-4909

Dear Dean Vestrand:

Looking at your catalogue and faculty listings, I notice that none of your faculty specializes in jurisprudence. Therefore, I believe we may be of benefit to one another. I taught at Eastern Michigan U. for 29 years as the resident philosopher of law, ethics and advanced logic and, now, after an extended period of retirement, I am eager to get back in service on a part-time basis at your Ann Arbor-located campus. I am competent in philosophy of law and the associated area of jurisprudence. My courses have covered a wide range of topics: the concept of law, judicial reasoning, theories concerning the purpose and justifications of punishment, and, lastly, causation in law. Additionally, my courses always deal with normative issues such as abortion, euthanasia, affirmative action, and capital punishment. Both the first cluster – the abstract topics – and the second set – the practical issues – are essential to a solid grounding in jurisprudence.

I believe my record as a distinguished teacher can be documented and I have also compiled a solid list of publications in peer-reviewed journals. I would welcome the opportunity to sit down with you to discuss a part-time position.

Sincerely yours,

Sidney Gendin

Sidney Gendin, Ph. D.
Professor Emeritus, Philosophy of Law
Eastern Michigan University
Ypsilanti, Mi 48197
734 476 4495

(2) Mr. Gendin, thank you for your interest in teaching at Cooley Law School. Unfortunately, all adjunct professors must possess a juris doctor degree as part of the qualifications for teaching a course.

Dear Joan:

Thank you for your very prompt response.

Sincerely,

Sidney

A Michigan judge today ruled that two former waitresses who filed a weight discrimination case against the Hooters restaurant chain could proceed with their cases.

Cassandra Marie Smith, one of the plaintiffs, alleges in her complaint that she began working at a Hooters in 2008. At the time, she weighed 145 pounds. In a performance evaluation this earlier year, she claims in her complaint, a restaurant manager advised her “to join a gym in order to lose weight and improve her looks so that she would fit better into the extra small-sized uniform.” She alleged she was put on a 30-day “weight probation” and resigned.

The official uniform for Hooters waitresses, she claims, comes in 3 sizes: extra extra small, extra small, or small. Attorney Richard Bernstein, counsel to Smith, called the suit a “benchmark case” that will establish the proposition that physical appearance should not be a component of an employee keeping his or her job, according to the Grand Rapids Press. [I believe that the use of "benchmark" in this case should not be understood as a double entendre.]

To understand the case in all its FULL complexities, please CLICK HERE.

In 1996, in blithe disregard of the Constitution, the U.S. Congress overwhelmingly passed the Defense of Marriage Act [DOMA] that declared marriage can only be a legal union between one man and one woman. In the Senate, the vote was 85-14 and in the House of Representatives, 342-67. Willie Clinton cheerfully signed it into law on September 21, 1996. Proudly, Willie had this to say: “I remain opposed to same-sex marriage. I believe marriage is an institution for the union of a man and a woman. This has been my long-standing position, and it is not being reviewed or reconsidered.” Good boy, Willie. Never reconsider anything at all except your solemn declaration that you never had sex with “that woman.” [Willie appears to think that his merely declaring his opposition has some kind of perlocutionary force - rather like a minister's saying "I hereby declare you Man and Wife." In the latter case, the minister's saying so makes it so. Willie does not think that he needs to explain his view.]

The fact remains that DOMA is plainly unconstitutional. (1) It violates the equal protection clause of the 14th Amendment. (2) It is not the business of the Congress to pass laws concerning marriage. The 10th Amendment to the United States Constitution reserves to the states any power not delegated to the federal government. Many states have explicitly permitted gays to marry. [Connecticut - District of Columbia, Iowa, Massachusetts, New Hampshire, Vermont] In consequence of that, (3) the Full Faith and Credit Clause in Article IV Section 1 of the United States Constitution requires all states to recognize gay marriage and, in virtue of (1), (2) and (3), it follows that (4) DOMA is unconstitutional.

To make matters worse, DOMA violates universally recognized principles of lawfulness. Chief among these is that law may not be created solely for the purpose of enshrining and furthering prejudices and hatred. Since DOMA has no raison d’etre other than to enshrine and further feelings of hatred and prejudice, it violates a major internationally recognized principle of justice. In an amicus curiae brief, The American Psychological Association, American Psychiatric Association, and the National Association of Social Workers state: “There is no scientific basis for distinguishing between same-sex couples and heterosexual couples with respect to the legal rights, obligations, benefits, and burdens conferred by civil marriage…. Empirical research has consistently shown that lesbian and gay parents do not differ from heterosexuals in their parenting skills, and their children do not show any deficits compared to children raised by heterosexual parents…. [I]f their parents are allowed to marry, the children of same-sex couples will benefit not only from the legal stability and other familial benefits that marriage provides, but also from elimination of state-sponsored stigmatization of their families.” [Case No. S147999 in the Supreme Court of the State of California, In re Marriage Cases Judicial Council Coordination Proceeding No. 4365(…).]

For all these indisputable reasons, DOMA should be repealed. Nancy Gill has worked for the Postal Service for almost 23 years. But because she is married to a woman, she cannot provide the same health benefits to her spouse that her co-workers at the post office can provide for their families. Ms. Gill, 51, and Marcelle Letourneau, 47, married in Massachusetts in 2004 and are the lead plaintiffs in a suit challenging a portion of the federal law — the Defense of Marriage Act, known as DOMA — that defines marriage as being between a man and a woman. The women, who live in Bridgewater, Mass., are challenging the section that denies marriage-related benefits to same-sex couples, saying they are being denied equal protection under the law. The case ought to be a no-brainer but Scott Simpson, arguing for the government last Thursday, opened by acknowledging the administration’s opposition to the act, but saying he was still obliged to defend its constitutionality. “This presidential administration disagrees with DOMA as a matter of policy,” Mr. Simpson said. “But that does not affect its constitutionality.” Well, of course it does, Mr. Simpson. You have to make out a case for constitutionality – its legitimacy does stare you in the face. If Mr. Simpson and his team does not defend DOMA, no heavenly team of attorneys will appear on the scene to take their place. A portion of DOMA would go down.

This week, a Massachusetts federal court decision struck down as unconstitutional a section of the federal Defense of Marriage Act but it will go on hold pending any appeal by the government. Nancy Gill is not even challenging all of DOMA but only Section 3 which denies spousal protections in Social Security, federal income tax, federal employees’ and retirees’ benefits, and the issuance of passports. As for the fundamental idea that gay couples may not marry, that is being left for suits elsewhere. In other words, Gill is not challenging the whole of DOMA. Section 3 plainly violates the 14th Amendment and it is a pity that Mr. Simpson disagrees. Not challenging the Massachusetts court decision would still allow Simpson and Obama to eat their rancid cake.

This week

Mr. Roger Clemens may go to jail. If so, probably for 15 months but his crime is deemed so serious that the statutes permit him to be carried away for 30 years. His crime is that he perjured himself before a congressional committee investigating the use of performance enhancing drugs.

In fact, his crime is no crime at all. Imagine a silly law that made eating Chinese food on Thursdays a crime. Quite plainly, despite the law, if you eat Chinese food on Thursdays you have done no wrong. The only wrong was making this behavior a crime. Suppose, too, there is a ridiculous, ill-thought out prejudice on the part of the American people against eating Chinese food on Thursdays – it has been brainwashed into thinking this sort of eating is disgusting and shameful. Suppose your career, whatever it is, will be ruined if the American people find out about your eating habits. Suppose, now, the U.S Congress decides to conduct a “war” on those who break this law and you are called to testify. For convening an investigation, the Congress has heaped one stupidity upon another. Accordingly, you perjure yourself. What wrong have you committed? Nowhere in heaven’s statutes is it written that you have an obligation to obey bad laws. Nowhere in heaven’s statutes is it written that you should never lie, no matter what the circumstances.

Even to spare yourself embarrassment is a good reason to lie if an inquiry into your conduct is unjustified. Thus, Mr. Clinton lied to the arch inquisitor, Ken Starr, about his sexual conduct. Mr. Starr’s initial investigation had nothing to do with Clinton’s sexual behavior but, being the agent of Mephistopheles that he is, Starr probed where had no business probing. Any man with common sense, if he thought he could get away with it, would have perjured himself in the embarrassing circumstances the president was in. This is just as true in the case of Roger Clemens.

What this country needs to do is demand that our congressmen get on with the serious business for which they were elected and not worry about why Roger Clemens was the best pitcher of his generation. What each of us should do is find out which of our representatives is participating in this madness and threaten not to support him ever again if he doesn’t quit his Salem-like witch hunt. These witch hunts are disgraceful.

Federal prosecutors today charged Barclays Bank in a two-count information in Washington alleging the financial institution violated economic sanctions in dealings with countries that include Iran, Cuba and Libya. Justice Department attorneys allege Barclays “knowingly and willfully” facilitated U.S. dollar transactions “for a number of parties and countries” that are sanctioned by the Office of Foreign Assets Control of the Treasury Department.

Here’s the good part. The bank’s attorneys at Sullivan & Cromwell negotiated a deferred prosecution agreement with the government in which the London-based bank will pay $298 million to settle the criminal charges. The federal government will receive $149 million, and the rest is designated for the District Attorney of the County of New York.

Here’s an even better part. According to the agreement, Barclays’ head of compliance and regulatory affairs must certify by April 6, 2011, that the bank has completed comprehensive training on policy regarding United States, United Nations and European Union sanctions for all employees who are involved in the processing of U.S. dollar payments.

For the few of you who enjoy these things, here are the details concerning the case. Just CLICK HERE.

John Yoo who is certifiably the worst constitutional lawyer in American history, is at it again. Infamous as the architect of the Bush plan to lock up people at Guantanamo and waterboard them and deny that it is torture, he now weighs in on gay marriage.

John, in a mere 1300 words guest column in Thursday’s Wall Street Journal, (that runs to five columns of fifty lines each), tells us that Judge Vaughan Walker, author of the decision in Perry vs. Schwarzenegegger last week, got it all wrong in striking down California’s Proposition B, which banned gay marriage. Master of twisted rhetoric that he is, Yoo declares himself a supporter, as a matter of policy, of gay marrage and proudly announces he trusts “in the good will and generosity of the American people.” He simply doesn’t want any judge to take it upon himself to say what is right and wrong.

Yoo thinks Walker’s “high-handedness” is a form of elitism. We have heard this nonsense before. During the drawn-out debate between Hart and Devlin in the 50s and 60s over homosexuality, prostitution and other crimes sometimes referred to as “victimless crimes,” Hart was accused of elitism for arguing that victimless crimes are not crimes. “Who are you to say so?” was the argument of Devlin. Shouldn’t the people decide? So Devlin turned the debate on its head. Then as now, the defender of human rights was accused of elitism.

Walker’s ruling, like Hart’s arguments, is not intended to force morality on anybody. Quite the contrary. It is meant to prevent the majority from forcing its views down the throats of a minority. On the Walker/Hart view, some things should not be voted on. We do not vote on whether to reinstate slavery or whether to take the right to vote away from women. John Yoo thinks that, as a matter of good policy, gays should be allowed to marry. But he is very much mistaken. It is a matter of principle, and that is precisely what Walker is saying. You can think that there should be an inheritance tax of 20% on the basis of what is good for America but you cannot decide whether gays should be allowed to marry on the basis of what is good for America. Yoo doesn’t get it.

He pauses to express his dismay at Roe vs. Wade because it “poisoned our politics.” He doesn’t mean that abortion is a bad thing but that women cannot demand it as a matter of right. Each state, he thinks, should have voted on it. On this strange, demented reasoning, we can ask,”Why not let the citizens of each state vote on whether to make murder and rape illegal?” Even Yoo would see, I hope, how preposterous that is.

For Yoo, abortion, marriage, and probably a dozen other things are issues to vote on. He does not understand the policy/principle distinction and, for that reason, his ideas about constitutionality are as utterly defective now as when he denied that prisoners in Guantanamo and Abu Ghraib had rights. Wrong then, wrong now.

Vicious gangster William Lerach (by trade an attorney) filed a request to complete his sentence of two years in federal prison, a $250,000 fine and 1,000 hours of community service by getting credit for teaching a course at the UC Irvine School of Law. The judge asked what message Lerach could teach other than “Don’t get caught.”? Although Lerach escaped crimes of bribery, he pleaded guilty to the charge of conspiracy. Legal training helps criminals to do this sort of thing. Lerach even had the audacity not to be present at his hearing. The judge wanted to know where the crook was and his lawyer said, “Somewhere in San Diego.”

In his motion, Lerach sought credit for designing and teaching a proposed course at the law school called “Regulation of Free Market Capitalism — Are We Failing,” which would begin in January 2011. Lerach said that he “would caution students to practice law ethically and within the strictures of the law.”

Good grief, Charlie Brown, what do you make of that?

It isn’t clear to this perplexed citizen why the federal government wants to make it easy for vicious criminals to track their potential victims and slay them.  In 2005, the government created regulations requiring cell phone manufacturers to put chips in their phones that would  make it possible to keep track of all people who are in the habit of keeping their phones on.  The government explains all the benefits of this curiosity.  It ignores the disadvantages.   About 25,000 people have been the victims of this technology.

Glenn Helwig beat up his wife one day, so she ran away with her children but Helwig purchased a service that activated the tracking device.  He found her and assaulted her again and drove off with her car.   Elsewhere, Andre Leteve used the tracking device to find his wife.  He proceeded to murder their two children.  James Harrison tracked his wife’s cell phone,found her and murdered their five children.    Michael Barnes enjoyed similar success finding his wife and doing her in.     For only $99.97, a person can buy Mobile Spy and find anyone foolish enough to leave his phone on much of the day.

The Justice Department (DOJ) counts heads.  It says the technology does more good than harm.  In particular, police can find many people who are lost or having trouble of one sort or another.   The DOJ does not engage in the messy business of comparing the quality of benefits and drawbacks.     How, indeed, can you compare the virtues of  any technology with its drawbacks?   As with guns, the DOJ says technology is neutral, that it can be used for good or bad.  Global Positioning Systems don’t kill; people do.   I suppose so.

There has been a great hullabaloo concerning the planned building of a mosque on Ground Zero in Manhattan. Many patriots regard the site as hallowed land that should not be tainted by an Islamic presence because, after all, the terrorists who destroyed the Twin Towers were mad Muslim terrorists.

The operative word is “mad.” In the 1980s, Carmelite nuns took over some grounds on the edge of the the death camp in Auschwitz, and this, too, created a furor. Pope John Paul II acknowledged the nuns were within their rights to build a convent but he asked that they move some distance from the site. At that time, feelings about Auschwitz were still very raw. Something similar is now going on but NY Mayor Bloomberg is siding with those who are defending the rights of Muslims to go ahead with their plans.

The leader of the Islamic movement to build a convent says, “Our religion has been hijacked by the extremists, and this center is going to create the counter-momentum which will amplify the voices of the moderate Muslims.” On the other hand, the Anti-Defamation League claims putting up a mosque at Ground Zero is “counterproductive to the healing process.”

The issue may ultimately be decided on narrow legal rights, but that would be a pity. We need to determine whether having the legal right to do something means it is the right thing to do. Let us hope that the solution will not be based on a dry determination of the law.

Movie buffs will know that I borrowed the above title from a book by Pauline Kael, the late and wonderful movie reviewer about whom even John Simon, America’s most caustic critic, has only praise. I am not, however, concerned with movies but with guns. After 20 years, during which I did exhaustive and exhausting research, I concluded that guns belong in every American household. I went through the massive, learned literature with a fine tooth-comb and came away with the belief that Gary Kleck and his colleagues had won the gun control debate. Today, as I write this, I am not so sure. Some background.

Who is Gary Kleck? Gary is a Professor in the School of Criminology and Criminal Justice at Florida State University. He was the winner of the Michael J. Hindelang Award of the American Society of Criminology, for the book which made “the most outstanding contribution to criminology” in the preceding three years (for Point Blank). Gary is a member of the American Civil Liberties Union, Amnesty International USA, Independent Action, Democrats 2000, and Common Cause, among other politically liberal organizations He is a lifelong registered Democrat, as well as a contributor to liberal Democratic candidates. He is not now, nor has he ever been, a member of, or contributor to, the National Rifle Association, Handgun Control, Inc. nor any other advocacy organization, nor has he received funding for research from any such organization.

Gary writes, “When I began my research on guns in 1976, like most academics, I was a believer in the “anti-gun” thesis, i.e. the idea that gun availability has a net positive effect on the frequency and/or seriousness of violent acts. It seemed then like self-evident common sense which hardly needed to be empirically tested. However, as a modest body of reliable evidence (and an enormous body of not-so-reliable evidence) accumulated, many of the most able specialists in this area shifted from the “anti-gun” position to a more skeptical stance, in which it was negatively argued that the best available evidence does not convincingly or consistently support the anti-gun position.” A bit later, he adds, “[Subsequent research] has caused me to move beyond even the skeptic position. I now believe that the best currently available evidence, imperfect though it is (and must always be), indicates that general gun availability has no measurable net positive effect on rates of homicide, suicide, robbery, assault, rape, or burglary in the U[nited] S[tates]. This is not the same as saying gun availability has no effects on violence–it has many effects on the likelihood of attack, injury, death, and crime completion, but these effects work in both violence-increasing and violence-decreasing directions, with the effects largely canceling out.” All that being said, Gary eventually plumps for the view that it is a good thing for ordinary citizens to have guns in their homes. Believe me, he is well aware – more than you are – of the anecdotes concerning horrible accidents and risks to children. Gary’s studies led him to conclude gun ownership does not affect total rates of violence (total homicide rate, total suicide rate, total robbery rate, etc.). Defensive gun use greatly exceeds the use of guns by criminals and is a major deterrent to violent crime.

About two years ago, I became acquainted with the work of David Hemenway. David is Gary’s most severe critic. David is a formidable foe. He is Professor of Health Policy at the Harvard School of Public Health. He has a B.A. (1966) and Ph.D.(1974) from Harvard University in economics. He is the director of the Harvard Injury Control Research Center and the Harvard Youth Violence Prevention Center. He is also currently a James Marsh Visiting Professor-at-Large at the University of Vermont. David has written over 130 articles and five books in the fields of economics and public health.

I wrote to David Hemenway and engaged him in a discussion of the gun issues. A genial chap, he was prepared to continue for as long as I wanted but I decided it would be best if I simply asked him for a good selection of his writings. He argues that Kleck has badly mangled the data and badly did statistical analysis. Maybe so. I am not qualified to express an opinion about research methodology and statistical analysis. You can write to David: David Hemenway, Ph.D. Department of Health Policy and Management,Harvard School of Public Health, 677 Huntington Avenue, Boston, MA 02115 and he will gladly send you several articles explaining his view and what is wrong with Kleck’s. I imagine he will be happy to e-mail back and forth with you, too. Alternatively, you can try the internet and look for something like “Hemenway on Kleck” or something like that.

In turn, you should read lots of Kleck but, at the very least, his slam bang reply to Hemenway. I hope this stuff fascinates you as it does me. Once you have read a good piece of the exchange, you will be at least as well-informed as I am, and I will welcome any communications from you. But, until then, I don’t want to hear from you. I hate things like, “Well, there was this kid down the block from where I live…” or “I read in the Ann Arbor News all about…”

About all anecdotes, I have this to say. “There is a simple way to state a negative with a double affirmative: Yeah, yeah.” And I happily take refuge in that.