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Since Donald Trump became US president in January, lawyers and judges across the country have been drawn into a series of highly charged political battles, frequently on issues of religion and race. These have gained even greater prominence by being played out on social media by the “tweeter-in-chief”, as in the tweet below, 24-hour news and late-night talk shows.
Battle was joined almost as soon as Mr Trump entered the White House with one of his first executive orders, on January 27, barring entry into the US for the citizens of seven Muslim-majority countries. The legal reaction was instant, with lawyers heading to airports to help those affected, the president firing his acting US attorney-general Sally Yates, after she ordered the justice department not to enforce the ban, and judges from several states blocking the order.
Mr Trump issued a second order on March 6, this time affecting citizens from six nations. Led by Neal Katyal, a former acting solicitor-general in the Obama administration, a team at Hogan Lovells quickly decided they wanted to challenge the move, but with the unusual strategy of using a US state as plaintiff. The attorney-general of Hawaii, the state with the largest proportion of multiracial Americans, filed a lawsuit against ban number two, saying the president had acted unconstitutionally and in violation of US immigration laws. On March 16 a Hawaii federal judge blocked Mr Trump’s revised order.
The battle continues. The US president has made a third attempt at a travel ban, which was blocked in October by the same Hawaii judge.
This wave of “legal resistance” has made some people uneasy that US judges and other legal professionals are stepping beyond their remit — a point referred to obliquely by Neil Gorsuch, who was picked by Mr Trump as a Supreme Court justice, when he said in a recent speech: “In our legal system judges wear robes, not capes.”
Mr Katyal is unrepentant. “Law firms and all members of the profession have [an] obligation to protect all those who need a voice and need protection,” he says. “The system of checks and balances only works when you have people willing to fight for them.”
The legal sector’s tussles with the Trump administration go beyond travel bans and corresponding legal challenges. The president has also been criticised for his choice of federal judges, on grounds of suitability and diversity. His attempt to bar openly transgender people from serving in the military has been blocked, as has his executive order seeking to defund “sanctuary cities”, which aim to protect undocumented immigrants from deportation.
Against a backdrop of heightened racial tensions in the US — which also frequently manifested themselves during the Obama administration — other lawyers have fought their own battles. In 2015 Cooley joined a case against the authorities of the Californian city of Escondido, which had refused a non-profit housing programme a permit to run a home for unaccompanied migrant children, many of them fleeing violence and persecution in Central America.
Along with the American Civil Liberties Union and others, Cooley claimed the city was using zoning and land use rules as a pretext to discriminate against the children. In March 2017 Escondido agreed to pay $550,000 to settle the case without admission of liability, an outcome the ACLU said sent a message “that such discriminatory practices will not go unchallenged”.
In Arizona, a similar case was decided after a seven-year battle, when Weil, Gotshal & Manges challenged the state of Arizona’s ban on ethnic studies in public schools. The ban was enforced only against a Mexican-American studies programme in Tucson. Weil joined the legal battle in September 2015, arguing that the state’s official reasons for the ban were pretexts for discriminatory views and were anti-constitutional. In August, an Arizona judge found that former state officials had been motivated by “anti-Mexican-American attitudes” and racial animus — a rare ruling for a court to make.
Such divisions have given a fresh impetus to a longstanding tradition of pro bono legal work.
In 2008 Chubb, the world’s largest publicly listed property and casualty insurer by market capitalisation, set up its Rule of Law fund, which has provided more than $800,000 in grants to projects focused on access to legal advice, support for the judiciary in emerging markets, legislation drafting and combating crime including corruption and money laundering.
It also supports a fellowship for graduate students of the University of Pennsylvania law school.
It supported a report, published in August, by the Juvenile Law Center in the US into the practice of holding youth inmates in solitary confinement, and guidance developed by the International Committee of Jurists for judges in Africa on organised cross-border crime.
“Almost all our lawyers [around the world] could get involved in local pro bono work that is core to their own personal interests,” says Nicola Port, international counsel at Chubb. “It is fundamental to our vocation as lawyers to believe in and support the rule of law.”
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