Move over, Batman. Statman has arrived—and not a moment too soon.
What do Aquaman, Batman, Cyborg, the Flash, Superman, and Wonder Woman all have in common? None can save the world alone. Turns out, the same is true for the rule of law.
The superheroes star in Justice League, Warner Bros.’ new film based on the DC Comics series of the same name. The blockbuster was hotly anticipated by comic book buffs when it hit theaters on November 17, but critics have not been kind to The Avengers’ lesser-known rival group of do-gooders. The reviews have derided everything from the movie’s over-dependence on computer-generated imagery to its paper-thin characters and flimsy plot.
But as the Zack Snyder-directed pic plummets, New York lawyer Lesley Rosenthal has been quietly assembling her own motley crew of model citizens to fight back against the incessant barrage of assaults on truth, justice, and the American way.
This real-life Justice League—comprised of Republicans and Democrats, men and women, lawyers and academics—has set its sights on restoring the rule of law to America one small step at a time. But to do so, the team had to find a forum that could bridge the right–left schism that plagues too much of our politics. The result, Advocating for the Rule of Law: A Practical Approach, is a frank, inclusive, and wide-ranging six-week-long course in which these superheroes fly to Boston to teach law students how to harness their own superpowers for Good.
I was one of their first recruits.
Law and justice do not always go hand in hand—even less so in positivistic law schools—but, by empowering my classmates and I to see ourselves as positive agents for change, Advocating for the Rule of Law was able to leap over tall psychological obstacles in a single bound. This was thanks in no small part to the diversity of characters who taught the class and to the rule of law war stories they tell. Whatever you think of them, paper-thin and flimsy do not even remotely describe this band of merrymakers.
Each is a beacon of hope. Each has unique talents to offer. Each is essential to our shared mission to build a durable, renewable rule of law culture in this country—one that gives us credibility when we expound the virtues of American-style democracy abroad. Week after week, I found myself in awe of these allies’ abilities. Their activities are a blueprint for action and a reminder that we all can—and should—contribute to this cause.
As lawyers, we are so used to following rules that we fall into the trap of thinking that we need permission to make a difference and to stand up for what we believe. We imagine alternate, worst-case future scenarios and impose limits on ourselves for fear of how others might perceive our actions. We betray the rule of law by forgetting that we are all guardians of its galaxy.
The Justice League has taught me to ask for help, not permission.
In the hope that you might benefit from the same basic training, I offer the following highlights from my brush with these everyday superheroes.
Lesley Rosenthal is Thunder Woman
Lesley Rosenthal wants to thank Donald Trump for threatening our democracy. No, she isn’t a sadist. She’s just pleased to see that, across this country, ordinary people are finally waking up to the importance of civic engagement.
She isn’t the daughter of Zeus, but you’d be forgiven for thinking that Rosenthal was a demigod. She is a fierce champion for justice and rule of law noisemaker, giving her the nickname Thunder Woman. Ever the optimist, Thunder Woman has taken a bad situation that would have frightened mere mortals and turned it into something constructive: Advocating for the Rule of Law. The course prepares young advocates to weather the storm of attacks on the rule of law by arming them with historical, doctrinal, and practical approaches to solving our modern justice gap. Her cellphone acts as a Lasso of Truth, providing instant reports of government corruption and attacks on the media, which she promptly smacks down using her cleverly-named “Let’s RoL” Facebook and Twitter handles.
Thunder Woman’s tweetstorming ability is surpassed only by her power to network, having single-handedly mobilized the impressive group of individuals that make up the Justice League. Her day job as Executive Vice President, General Counsel & Corporate Secretary at the Lincoln Center for the Performing Arts in New York City gives her access to superheroes from all walks of life, including the arts, business, and legal communities. It is thus little wonder that her lectures emphasize the capacity of art to transform society.
Thunder Woman’s example teaches us two crucial lessons. First, you don’t have to be Picasso to change the world. You need only tap into your own unique superpowers. Second, every bit counts. Rule of law advocacy is more, not less, important at the local and state levels because they so often escape mainstream attention. If the Daily Planet isn’t covering some injustice, then it is up to us to brew the thunder that will put it on the front page.
Juan Carlos Botero is Statman
If the first step to recovery is diagnosing the problem, then Juan Carlos Botero is our doctor. As Executive Director of the World Justice Project, a non-profit organization committed to advancing the rule of law around the globe, Botero helped to create the influential Rule of Law Index. The Index is the largest dataset of its kind and took more than three years to assemble based on information from 113 countries, 2,700 legal experts, and over 110,000 citizens. By attempting to quantify rule of law outcomes, the Index gives us an objective standard to track the impact that our advocacy has over time. It focuses on eight main factors: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice. Together, they are divided into 44 subfactors.
According to the 2016 Index, the United States ranks 18th in the world when it comes to rule of law adherence, placing it in the bottom-half of G8 countries, below Germany (6th), the United Kingdom (10th), Canada (12th), and Japan (15th). The U.S. scores best on the effectiveness of its constraints on government power (0.81, where 1.00 is perfect) and worst on the accessibility and affordability of its civil justice system (0.65). The data reveal that the U.S. lags behind its regional counterparts on such things as police corruption, discrimination, labor rights, crime, delay in enforcement, and due process of law. It is statistics like these that have earned Botero his reputation as the Statman.
Statman’s powers include incorporating many perspectives, bridging the gap between experts and individuals, and statistically testing his findings. His biggest weakness? Focusing on each country’s three largest cities to the exclusion of smaller population centers.
But, unlike Batman, there is nothing dark about this knight’s contribution. Sure, the Index is a constant work in progress; however, by turning rule of law dimensions into concrete, measurable questions, the Statman gives young rule of law advocates a ready rubric to identify where improvement is needed most. And he is surprisingly modest for a man who has helped create one of the most powerful weapons to protect the weak from the strong in a society. For instance, his choice of transportation is not the turbocharged Batmobile but a red Ferrari without wheels—a striking reminder that a democracy without the rule of law might look nice, but it won’t get you very far.
Although rich countries tend to score better on rule of law outcomes than poor countries, Statman says it is not clear which came first: their riches or the rule of law. Still, the rule of law is as effective a predictor of a country’s education, public health, infant mortality, and income levels as national GDP. Until we develop the psychic power to make money rain from the skies, reinforcing the rule of law looks like a pretty good alternative.
Richard W. Painter is The Clash
Richard Painter is no stranger to those perilous-yet-stunningly-common situations in which morality butts up against the law. As the former Chief White House Ethics Lawyer for George W. Bush, Painter has made a living spotting and then dealing with conflicts of interest—hence, his superhero name: The Clash. Now, the wise counsellor-turned-University of Minnesota law professor moonlights as the vice-chairman of Citizens for Responsibility and Ethics in Washington (CREW), a non-profit organization whose purpose is to rail against government corruption, a key factor in the fight for the rule of law.
The Clash’s list of villains is long. He is a prolific tweeter and a frequent cable news commentator, taking errant politicians of all party stripes to task. In partnership with such other rule of law champions as Harvard’s Laurence Tribe and Obama White House Ethics lawyer Norman L. Eisen, Painter’s CREW famously sued the President in January 2017, alleging that Trump’s vast, international network of business interests creates conflicts of interest in violation of the U.S. Constitution’s foreign emoluments clause. That clause states in relevant part: “…no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
The Clash will use his power of persuasion to argue that any number of Trump’s business deals—like the countless room reservations by foreign diplomats at the Trump International Hotel in Washington, D.C.—and his failure to establish a blind trust violate this provision.
Whatever the outcome of that case, The Clash is quick to point out that the bigger problem is the influence of money in politics generally. This is not a phenomenon that began with the 2016 election. Painter proposes a series of practical solutions in his book, Taxation Only With Representation, which suggests allocating the first $200 from each resident’s income taxes to a political candidate of her choosing. This would reduce the pressure for politicians to accept campaign donations from deep-pocketed corporations, unrestrained by the Supreme Court. By failing to investigate White House ethics violations, the Congressional House Oversight Committee isn’t helping matters.
According to The Clash, what’s missing from the current debate are the voices of ordinary Americans. Without them, nothing will change. With them, we can wrest the discussion from the clutches of ideology and do right by the people rather than politicians.
Douglas Elmendorf is CBOrg
His superhero name might sound cybernetic, but Douglas Elmendorf is no robot. He is a former director of the Congressional Budget Office (CBO), which makes him an organism of the CBO—a CBOrg. The CBO is a government agency that provides nonpartisan analysis to members of the U.S. Congress. Recently, one of the agency’s reports concluded that repealing Obamacare’s individual mandate would “increase the number of uninsured people by 4 million in 2019 and 13 million in 2027.” Another found that the Senate Republicans’ version of the Tax Cuts and Jobs Act would leave low-income Americans worse off than they already are. These headlines have prompted fears that the Republican-controlled Congress might move to dismantle a source of objective analysis on the costs associated with federal spending programs. The Protect Democracy Project has even sued the Office of Management and Budget in the Executive Office of the President to obtain records that it believes contemplate such slash-and-burn intentions.
Not surprisingly, CBOrg is a strong proponent for government transparency. Governments respect the rule of law by publicizing laws and empowering citizens to access information that affects their lives, even if it embarrasses the government. Today, Elmendorf continues to promote the virtues of openness and transparency at the Harvard Kennedy School of Government, where he is Dean.
An economist by trade, Elmendorf is equally at ease describing the risk of questioning government data’s integrity (it kills public servants’ morale and destroys any basis for finding common ground), as he is quoting from Harry Potter: “It takes a great deal of bravery to stand up to your enemies, but a great deal more to stand up to your friends.” His point is simple: no one is perfect. Well-intentioned folks make mistakes. Rule of law boosters must call a spade a spade, even if that means having an uncomfortable conversation with their boss or teammate. His decision to quote Dumbledore to connect with an audience of millennials also reminds us that, as we seek to advocate for the rule of law, we must consider who our audience is and tailor our message to maximize its influence.
For someone who is neither lawyer nor machine, CBOrg has an unusually sophisticated sense of justice. An attorney should zealously advocate within the bounds of the law and the bounds of her own moral code, he says. Just because something is lawful does not mean you should do it. That’s the difference between rule by law and true justice.
The Honorable Robert A. Katzmann is Superjudge
Robert Katzmann is not your average adjudicator. He may don black robes rather than a red cape, but do not mistake his understated wardrobe for weakness. Katzmann is Chief Judge of the United States Court of Appeals for the Second Circuit, holds a Ph.D. in Government, and knows a thing or two about how the rule of law interacts across the executive, legislature, and judiciary. He flew to Boston from New York City—America’s own Metropolis—to speak about Factors 7 and 8 on the Rule of Law Index: civil and criminal justice.
From a rule of law perspective, civil and criminal justice should be accessible, affordable, effective, timely, impartial, and free from discrimination, corruption, and improper influence. These factors affect the public’s confidence in the administration of justice because they are proxies for how ordinary people experience the rule of law in practice. If people do not trust the civil and criminal justice systems to deliver cheap, just, and quick results, then they are more likely to resort to violence and other means of self-help. The rule of law thus depends on having robust and reliable systems for dispensing justice.
According to Katzmann, lawyers are both the problem and the solution. On one hand, they are too expensive, leading many litigants to go unrepresented. Those who are represented, he says, are about as likely to have a good lawyer as a bad lawyer. On the other hand, when one has legal representation, he or she is far more likely to succeed in court. Nowhere is this more important than when a defendant’s liberty is at stake or when an immigrant seeks asylum. In such cases, having quality counsel can mean the difference between life and death—literally.
This crisis of representation is the rule of law’s Kryptonite. But Katzmann says the civil and criminal justice systems “dramatically improve” when parties have competent lawyers. The challenge for aspiring Justice League members is to devise ways in which we can convince more qualified attorneys to practice law differently.
Luckily, Katzmann’s extracurricular activities offer us some ideas. For instance, he helped to establish the Immigrant Justice Corps, a fellowship program that trains recent law graduates to become experts in immigration law. The program, which is funded by public and private organizations, has been a boon to immigrants and their families who win in 92 per cent of all cases involving the Corps’ Justice Fellows. Katzmann is also behind a civics education initiative called Justice For All: Courts and the Community. It uses contests, reenactments, courthouse visits, and guest speakers to teach adults and schoolchildren that the law matters and that Judge Judy is not a Justice of the Supreme Court.
With such heady accomplishments as these, it’s easy to see why rule of law lovers call him Superjudge.
David E. McCraw is Accessman
David McCraw is used to working under pressure. Before becoming a lawyer, he swam among the fish as a journalist. Now, as Vice President and Deputy General Counsel of The New York Times Company, he fends off political sharks who gnaw on this country’s freedom of the press. As a voice for America’s largest daily newspaper, McCraw’s work has repercussions not only for the country’s reporters, but for all individuals who enjoy free expression.
Journalists are the last bastion of truth in a society where labor is divided and the average citizen is too preoccupied with his own affairs to scrutinize the government. They ask the tough questions so that we don’t have to (even though we can and we should). In other words, an independent media is a friend to the rule of law and a backstop to society’s oppression.
McCraw’s most powerful weapon is a trident named FOIA—the Freedom of Information Act—which he uses to help Times reporters catch evasive species of government. The Act gives all citizens the right to request certain information from the U.S. government subject to limited exemptions. And while the Act is far from perfect, McCraw still filed more FOIA lawsuits between 2009 and 2017 than all other major media outlets combined. That is no small feat. His Justice League moniker is Accessman, thanks to his ability to access information that lesser sea creatures would have given up trying to hook.
When he isn’t fighting to defend the First Amendment, Accessman manages the Times’ response to kidnappings of its overseas reporters. He emphasizes the importance of defending reporters who are subject to physical and verbal threats because such treatment undermines press freedom, discourages talented people from entering an already beleaguered industry, and casts a chill on the truth.
The good news is that citizens can help guard the media’s sand castle against the tides of authoritarianism. For starters, Accessman recommends fighting back charges of “fake news,” an epithet he describes as “an invitation not to think.” We can do this by teaching students the skills they need to improve their media literacy.
Second, we can support good reporting by sharing news stories with our friends and followers across social media. If you’re feeling especially confident, share the stories you don’t agree with and explain why they are demonstrably wrong.
Third, we can buy subscriptions to our favorite news sources. By paying for hard-hitting, investigative journalism, we affirm our commitment to truth and to the rule of law.
And, finally, we can demand more from our lawyers and legislators. Accessman insists that he is in the business of telling journalists what they can do, not what they should do. In 2017, that is a losing argument. As CBOrg recognized, lawyers are the rule of law’s lifeguards. Without their moral—and not merely legal—leadership, the rule of law will drown.
Will you be there to help?