No individual's life should be personally destroyed because of the arguments they put forward in discourse or via legal channels. The impulse to cancel those we disagree with is dangerous in all expressions.
Milky way that doesn't mean the way they are treating him is at all fair. The same argument people make for why Gibson Dunn can represent Chevron and Paul Weiss can represent Exxon (which I agree with) is that everyone deserves representation in our system. Well the, so does donziger
Prof Nesson, I think you have said it best yourself in class, make a humble plea that to strip Mr. Donziger of the right to practice law, a cause he has dedicated his entire life to, would be a miscarriage of justice. I would point out that he has done no wrong, been found guilty by no jury, and yet will have had his freedom constrained for over a year.
This punishment that he is receiving is more than the legislature has allowed for the crime he is charged with. What happened to a speedy trial? This is a misdemeanor and he's waited 18 months to be heard in court? I think it is important for the future of our judicial system that an appellate court take a very hard look into why there is a private prosecutor prosecuting this case after the actual prosecutor's office declined to prosecute. In addition, why Kaplan and Preska (and Gibson Dunn) are allowed to still be working on this case despite CLEAR conflicts of interest
I would write to them almost as if they are up on habeas review of a federal court's determinations. I would say that there is real evidence that this man has not been heard on his claims of innocence on the bribery in Ecuador, and that applying collateral estoppel to preclude him from making that case is perpetuating what may well be revealed to be an injustice. They, as the highest court of a jurisdiction, have a duty to ensure an injustice is not done in the name of judicial economy. When it comes to stripping lawyers of law licenses, the buck must stop somewhere, and it's with this Court.
Yeah the attempt to cancel Jones Day is ironic but C'mon, the dude has been through a lot. I can understand where he is coming from. If I was him I'd be so angry I wouldn't have been able to piece two sentences together coherently
Also, in the interest of "marketing" I think it might be fair to discuss your own history of advocating for the little guy, the big wins you have scored, and how you might not have been able to do so if persecuted the way Mr. Donziger has been
I think emphasizing the general corruption with Chevron and Kaplan could be better than getting too much into the technial side. To me, if what he is saying is true, then of course the injustice is so bad that the technical side becomes less relevant and I think everyone can be in support him. But if it isn’t true, then we’re just debating a technical legal issue. So in the letter, I would try to be as persuasive and present as much evidence of the general corruption with Chevron and Judge Kaplan as possible
Puck - definitely. I don't hold it against him personally. All I'm saying is cancel culture is bad in all of its expressions and I actually think that this may be an interesting frame for an argument because it is (arguably) an example of cancel culture against a progressive/leftist, i.e. the tables are reversed. So in theory it is an argument that those who are ideologically opposed to Donziger should be sympathetic to if they are consistent.
Great class; I feel ill-equipped to make a strong legal argument. But generally speaking, to place this man on house arrest for such an absurdly long period of time, bankrupt him, rid him of his capacity to provide for his family, and strip him of the ability to practice law on account of the opinion of one judge all feels terribly unjust.
I think the letter should not focus on whether there was fraud or corruption in the original trial since the evidence is not at all clear. I do think the letter should focus on how badly the court system has treated him, and how the trial under Kaplan had a lot of irregularities
First, Mr. Donziger's disbarment is truly inappropriate in this case. He is never been given a true review of the facts from the standpoint of a jury or the chance to present evidence as to why the judgment was well-supported and would have stood up in the U.S. court system as well. The civil RICO suit was brought by a private prosecutor at the suggestion of judge Kaplan after the prosecutor's office declined to pursue criminal or civil charges. Now he's not only paying for that judgment, but risking disbarment without a reconsideration of the underlying findings or a right to a jury trial to confirm these facts. If they are so glaringly true, then why not provide him his day in court. Second, he has been confined for over 14th months a due process violation even for those who have been charged of much more severe crimes. This demonstrates a larger disregard for his rights in this litigation. Third, his punishment for criminal contempt I believe that disbarring Mr. Donziger truly sets a dangerous precedent for chilling lawyers in providing a zealous defense to their clients. If we punish lawyers who are seeking to make a sea change in the human rights areas as soon as they make any progress everyone will be deterred from holding violating companies accountable.
I think that focusing on the injustice of the 14 month confinement is a bigger red flag than trying to hard to appeal to it being a horrible injustice to strip someone of their right to practice law. Even if it is a huge travesty to strip someone of their right to practice law, I think that even within our class, you see a range of how receptive people are to that where some people don’t see it as a huge deal. Whereas, I think everyone thinks the 14 months of confinement is ridiculous. So I would lean into that
Due to Donziger's failure to appeal and the principles of collateral estoppel, I think it best to avoid the legal arguments. Additionally, this letter (from what I understand) is not intended to restate the legal argument that has already been raised in his defense. It may be best to focus on the facts that are truly absurd--i.e. him being in house arrest for over a year, facing criminal contempt in a civil case, revocation of license, and facing over a billion dollars in damages. The consequences and broader stakes of the case seem to me to be compelling enough to invoke a grant of cert from the NY Court of Appeals. Finally, it would allow you to best leverage your personal relationship with Donziger, as your attestation to his character would likely bolster these specific claims.