Tuesday, May 24, 2016

Getting What We Pay For | Commonweal Magazine

2007 Minneapolis Interstate Highway Bridge collapse
Getting What We Pay For | Commonweal Magazine
by Charles Morris

Donald Trump, on a recent morning talk show, was asked to describe his tax plan. He opened with the statement that “this country has the highest tax rate in the world. Everybody knows that.” While it is true that nearly everyone thinks that—or at least nearly all of a group of businessmen I recently put the question to—it isn’t close to being true. The Organization for Economic Development (OECD) is an international think tank that publishes an annual tax league table for the forty-two countries deemed to have the world’s most advanced economies. The data include all taxes actually paid to all levels of government. Your local school tax is in there, as are payroll taxes for Social Security and Medicare, and the taxes (if any) paid by the largest companies.

The final version of the 2013 data was just released, and it shows that the United States ranks thirty-ninth in the total tax bite imposed on its citizens. So far from having the highest effective tax rate, the United States has the fourth lowest. The U.S. total tax rate was 25.4 percent of GDP in 2013, which is up from 23.6 percent in 2011, against a median OECD tax rate of 34.1 percent. ...

Moving On in Vietnam, but Remembering Its Lessons - The New York Times

The Vietnam war was the occasion for political awakening for millions.  As a graduate of high school in 1963 I had little awareness.  I thought segregation was wrong, the Vatican Council good, and that nuclear weapons were bad.  That all changed as we built up to 500,00 troops in Vietnam, friends of mine died in battle, and we inflicted horrible suffering on the Vietnamese.
John Kerry was a bold gun boat commander who won the Silver Star, Bob Kerrey lost a leg in combat, and John McCain was shot down and then subjected to harsh imprisonment. - gwc
Moving On in Vietnam, but Remembering Its Lessons - The New York Times
by John Kerry, John McCain, Bob Kerrey
"AS President Obama visits Vietnam, we are struck by the fact that most citizens of both countries have no living memory of a conflict that claimed the lives of more than 58,000 Americans and upward of a million Vietnamese.
As Americans who fought in that war, we are frequently asked about its lessons. There are few easy answers, in part because every conflict is unique and because we have learned that attempts to apply past lessons to new crises sometimes do more harm than good. But a few things are clear..."

Why Bernie’s Crushing Trump - The Daily Beast

Why Bernie’s Crushing Trump - The Daily Beast
by Michael Tomasky
"... I don’t know a single person whose opinions I really value, and I include here Sanders supporters I know, who takes these polls seriously. There’s one simple reason Sanders polls better against Trump than Clinton does, which is that no one (yet) knows anything negative about him. He’s gotten the freest ride a top-tier presidential candidate has ever gotten. The freest, bar none.
While he’s all but called Clinton a harlot, she’s barely said a word about him, at least since the very early days of the contest. And while Republicans have occasionally jibed at him, like Lindsey Graham’sactually quite funny remark that Sanders “went to the Soviet Union on his honeymoon and I don’t think he ever came back,” in far more serious ways, Republican groups have worked to help Sanders weaken Clinton.
That would change on a dime if he became the nominee. I don’t think they’d even have to go into his radical past, although they surely would. Michelle Goldberg of Slate has written good pieces on this. He took some very hard-left and plainly anti-American positions. True, they might not matter to anyone under 45, but more than half of all voters are over 45. And then, big-P politics aside, there’s all that farkakte nonsense he wrote in The Vermont Freeman in the early ’70s about how we should let children touch each others’ genitals and such. Fine, it was 40-plus years ago but it’s out there, and it’s out there."

Torts Today: N.F.L. Tried to Influence Concussion Research, Congressional Study Finds - The New York Times

Bubba Smith (78) playing for the Baltimore Colts against Joe Namath and the Jets in the Super Bowl in 1969. Smith died in 2011 at age 66.
Torts Today: N.F.L. Tried to Influence Concussion Research, Congressional Study Finds - The New York Times

Monday, May 23, 2016

China's Supreme Court, Top Prosecutor Raise Compensation Rate for Rights Violations

State Compensation Paid in Guangdong 1998-2009
Inline image 2
Guangdong High Court Yearbook - various years

The Supreme People's Court and the Supreme People's Procurator (Prosecutor) have announced increases in the rate of compensation for persons whose rights are violated by Government.  As the Guangdong Province graph above shows citizens can have success in claims against government for rights violations. The new rates became effective in May 2016.  Courts are instructed to award compensation per day of deprivation of liberty, etc.  Violation of personal rights, bodily injury, emotional harm, and property damage are recognized.
Migrant workers are particularly vulnerable to police or other official misconduct.  Although the old reeducation system "劳教" has been repealed Chinese law still permits detention for investigation.

Unlike the U.S. where complete prosecutorial immunity is the rule, in China a tort remedy is provided by the State Compensation Law.  Originally passed in 1994 it was strengthened by the 2010 Amendments.
In December 2015 the Supreme People's Court and the Supreme People's Procurator (Prosecutor) issued an " Explanation regarding several questions regarding the handling of cases of compensation for criminal injustice".  The joint document announces its purpose in Article 1:
Article 1 Explanation of the regulations setting the limits of compensation for a one who claims compensation because of a criminal  investigation, prosecution,  trial , detention, or imprisonment  by government which violated the personal rights, property rights for which application is made under the State Compensation Law , under the circumstances stated in Articles 17 and 18 of the State Compensation Law.
The regulations - as is common in Chinese law - advise courts to award compensation for disability and detention not on an individualized basis but rather on the average wage in the region, as well as other factors.
- George Conk 教授 and 刘达奇, LLM

h/t Susan Finder - Supreme Peoples Court Monitor

Saturday, May 21, 2016


Newspapers and magazines are eager to draw subscribers and advertisers.  So there are lots "best of"lists.  The New Jersey Supreme Court's Attorney Advertising Committee has issued a detailed caution about the use of such labels as Super Lawyers, Rising Stars, etc. The Committee has disciplinary authority so its advice should be heeded.  - gwc

...When an award, honor, or accolade meets this preliminary test, the lawyer must include additional information when referring to it in attorney advertising, whether that advertising be a website, law firm letterhead, lawyer email signature block, or other form of communication. First, the lawyer must provide a description of the standard or methodology on which the award, honor, or accolade is based, either in the advertising itself or by reference to a "convenient, publicly available source." Official Comment to RPC 7 .1. 

Second, the lawyer must include the name of the comparing organization that issued the award (note that the name of the organization is often different from the name of the award or the name of the magazine in which the award results were published). RPC 7.1 ( a)(3 )(i). 

Third, the lawyer must include this disclaimer "in a readily discernible manner: 'No aspect of this advertisement has been approved by the Supreme Court of New Jersey."' RPC 7.l(a)(3)(iii). All of this additional, accompanying language must be presented in proximity to the reference to the award, honor, or accolade. 

Further, when the name of an award, honor, or accolade contains a superlative, such as "super," "best," "superior," "leading," "top-rated," or the like, the advertising must state only that the lawyer was included in the list with that name, and not suggest that the lawyer has that attribute. Hence, a lawyer may state that he or she was included in the list called "Super Lawyers" or "The Best Lawyers in America," and must not describe the lawyer as being l! "Super Lawyer" or the "Best Lawyer."

 Lastly, the Committee has reviewed numerous law firm advertising that includes badges or logos of comparative awards (such as the yellow "Super Lawyers" badge) but does not include the required additional information in a discernible manner in proximity to the reference to the award. 

Every reference to such an award, honor, or accolade even when it is in an abbreviated form such as the badge or logo- must include the required accompanying information: (1) a description of the standard or methodology; (2) the name of the comparing organization that issued the award; (3) the statement "No aspect of this advertisement has been approved by the Supreme Court of New Jersey." Only the description of the standard or methodology can be presented by reference (with the statement that the standard or methodology can be viewed at that website or hyperlinked page). 

The other required information must be stated on the face of the advertising, readily discernible and in proximity to the reference to the award. The accompanying information cannot be buried at the bottom of a page, or in tiny print, or placed outside the screen shot on a website. 
For example, a reference to the Super Lawyers accolade should provide: 

"Jane Doe was selected to the 2016 Super Lawyers list. The Super Lawyers list is issued by Thomson Reuters. A description of the selection methodology can be found at www.superlawvers.com/about/selection process detail.html. No aspect of this advertisement has been approved by the Supreme Court of New Jersey."

Friday, May 20, 2016

NJ Rule Change Would Protect Lawyers Who Represent Pot Growers | New Jersey Law Journal

As a member of the Advisory Committee on Professional Ethics I cannot comment- other than to say please do heed the Supreme Court's request for comments.  - GWC
Supreme Court of New Jersey
Proposed Amendment to RPC 1.2 Regarding Medical Marijuana Law -- The Supreme Court requests comments on the proposal by theAdvisory Committee on Professional Ethics for amendments to RPC 1.2 regarding representing clients with regard to New Jersey's medical marijuana laws. The comment period will close on June 20, 2016. Click here to read the notice and the ACPE's proposed amendments to RPC 1.2

NJ Rule Change Would Protect Lawyers Who Represent Pot Growers | New Jersey Law Journal

The New Jersey Supreme Court is considering a rule change that would ensure that lawyers who represent growers of medical marijuana don't face disciplinary charges, even though those lawyers may be assisting their clients in violating federal law.

In a notice to the bar released May 19 by Judge Glenn Grant, the acting administrative director of the courts, the Judiciary said the Advisory Committee on Professional Conduct had proposed a change to RPC 1.2.

An attorney, who was not identified in the notice, had asked the ACPC whether he could represent a client whose business includes growing medical marijuana under the auspices of the New Jersey Compassionate Use Medical Marijuana Act.

Gov. Jon Corzine, as he was leaving office in 2010, approved legislation allowing for the use of marijuana for medicinal purposes. Regulations permit businesses to grow marijuana under a license, and restrict sales to a limited number of other licensed dispensaries.

However, growing and possession of marijuana remains a violation of federal law. The federal government has chosen not to prosecute growers or dispensers of medical marijuana, as long as they are licensed and regulated in the various states that have enacted medical marijuana legislation.

Grant's notice said the ACPC, by a slight majority, ruled that an attorney could represent the grower. But, he said, a minority "vigorously" asserted that RPC 1.2(d) did not permit an attorney to provide legal assistance to a client whose business is illegal under federal law.

The ACPC unanimously determined that the rule should be amended to permit lawyers to represent such clients, provided that the attorneys advise those clients about federal law, Grant said.

RPC 1.29(d) says: "A layer shall not counsel or assist a client in conduct that the lawyer knows is illegal, criminal or fraudulent, or in the preparation of a written instrument containing terms the lawyer knows are expressly prohibited by law, but a lawyer may counsel or assist a client in a good faith effort to determine the validity, scope, meaning or application of the law."

The proposed amendment reads: "A lawyer may counsel a client regarding New Jersey's marijuana laws and assist the client to engage in conduct that the lawyer reasonably believes is authorized by those laws. The lawyer shall also advise the client regarding related federal law and policy."

Lawyers who represent defendants charged with marijuana offenses said the proposed rule amendment generally makes sense.

"If the Legislature has passed laws to address these types of businesses, attorneys should be allowed to represent those businesses" without the possibility of facing ethics charges, litigator James Seplowitz said.

"An attorney has a duty to advise the client on how other laws may impact the client's business," said Seplowitz, of Foy & Seplowitz in Hackensack.

"This provides more of a safety net for lawyers representing these clients," added litigator Timothy Farrow.

But Farrow, of Dash Farrow in Moorestown, also warned that the rule could pose certain dangers because of the complexity of federal marijuana laws.

"It may scare away more lawyers and that's not fair to clients who absolutely need a lawyer," he said.

Grant's notice acknowledged the difficulties lawyers face in assisting growers.

"A lawyer providing legal services to a client in the New Jersey medical marijuana business arguably counsels or assists the client in conduct that is illegal under federal law," he said. "Even assuming that the lawyer accurately conveys to the client the illegality of its activities under federal law and does not therefore 'counsel' the client to engage in illegal activity the provision of routine legal services such as application for business permits or zoning variances, can be said to 'assist' in an activity that the lawyer knows is illegal."

The Administrative Office of the Courts is accepting comments on the proposed rule change until June 20.

Read more: http://www.njlawjournal.com/id=1

RJ Reynolds Hit With $11.5M Verdict In Nurse's Death - Law360

 More good news. I wish everyplace were Florida. - gwc

RJ Reynolds Hit With $11.5M Verdict In Nurse's Death - Law360

By Brandon Lowrey

Law360, New York (May 20, 2016, 5:27 PM ET) -- A Florida jury on Friday slammed R.J. Reynolds Tobacco Co. with $6.5 million in punitive damages in a lawsuit brought by relatives of a chain-smoking registered nurse and addiction counselor who died of lung cancer, adding to the $5 million compensatory verdict it awarded the plaintiffs a day earlier.

Saturday, May 14, 2016

Obama Is Right to Go to Hiroshima, as an Act of Recognition Rather Than Apology - The Atlantic

James Fallows in a very thoughtful essay discusses what everyone of us experienced as children crawling under desks in "air raid drills"- the hysteria induced by the masters of war. They built up inordinate fear of the USSR on the ground that they might do to us what we had done to the Japanese in Hiroshima and Nagasaki.

We all read John Hersey's long article/thin book Hiroshima. That was an important factor in the movement for nuclear disarmament, and the movement against the American war in Vietnam. Much of the leadership for which came from the "ban the bomb" movement.

President Obama is making the moving gesture of going to Hiroshima to acknowledge our role in the incineration of two cities. He will leave to others the debate about its necessity or its criminality. I long ago opted for the latter and it has deeply influenced my thinking ever since. -gwc

Obama Is Right to Go to Hiroshima, as an Act of Recognition Rather Than Apology - The Atlantic

by James Fallows

When my family first visited the Hiroshima museum in the mid-1980s, I noted a plaque that began (roughly): “In the springtime of 1945, the U.S. Army Air Force began a campaign of aerial bombardment of Japanese cities.” As a rendering of history, that was accurate but … not quite complete. When we lived in Japan our children went to Japanese public schools. In the sixth-grade world-history class that one of them took, the historical time-chart running along one wall showed a mainly blank space between about 1937 and the summer of 1945, when the start of the postwar era was delineated with a mushroom cloud.

It is understandable that Japan, again the only nation to have suffered the horrors of a nuclear attack, should think of itself mainly as a cautionary, sacrificial example to the world about nuclear risks. Today’s Japan is an unrecognizably different place from the one that terrorized the rest of Asia in the 1930s and ultimately attacked the United States. But the story of what did happen there, starting 80-plus years ago, involved more than Japan’s own sacrifice, and is a morally and historically complex one.

The story led to atomic disaster, which calls for sober recognition, and reflection on responsibilities past and future on all sides so as to ensure that nothing comparable ever happens again. Such recognition, and prescription, is what the President’s visit constitutes. It’s good that he is going.

Wednesday, May 11, 2016

RJ Reynolds Hit With $12M Engle Verdict, Faces Punitives - Law360

It's a shame that only Florida has provided a remedy for smokers against the companies whose criminality is unmatched in American legal history. - GWC
RJ Reynolds Hit With $12M Engle Verdict, Faces Punitives - Law360

by Brandon Lawry

Law360, Los Angeles (May 11, 2016, 4:20 PM ET) -- A Florida jury awarded $12 million in compensatory damages Wednesday to the widower of a woman who allegedly died of lung cancer after decades of smoking, also finding R.J. Reynolds Tobacco Co. owes punitive damages for its role in concealing the dangers of tobacco use.

Marion Dion had smoked R.J. Reynolds brand cigarettes including Camel and Winston. (Credit: AP)
The jurors in Sarasota, Florida, found that R.J. Reynolds was 75 percent responsible for the death of Marion Dion while she herself was 25 percent to blame. The verdict exceeded the widower's request for $11 million and kicked off a punitive phase of the trial, which is slated to begin Thursday.

During closing arguments in the compensatory phase Tuesday, George Dion's attorney Mark E. Millard of Engstrom Lipscomb & Lack told the jury that the $11 million figure was just a suggestion for compensating his client for the 22 years since Marion Dion's death and the remainder of George Dion's own life.

"She was fun, loving and playful," Millard said. "That's gone. ... She was ripped away from him unexpectedly."

The closing arguments marked the end of a retrial in the Engle progeny case, which had resulted in a deadlocked jury in March 2015 when they returned a blank verdict form on the second day of deliberations, according to court records.

Marion Dion had begun smoking cigarettes in the 1950s as a teenager and smoked two packs a day, her husband's attorney William J. Wichmann told jurors during the retrial. She smoked R.J. Reynolds brand cigarettes, including Camel, Winston, Doral and Carlton, and failed to quit several times, Wichmann said.

R.J. Reynolds' attorney John Walker of Jones Day argued during his opening statement that Marion Dion knew smoking was bad and was reminded of that over the years by her husband, her children and government-mandated warning labels.

"She actually tried not to smoke during her pregnancies" in the 1950s and 1960s, Walker said. "Those are not the actions of somebody who thought cigarette smoking was a perfectly safe and healthy thing to do."

He added that Marion Dion urged her son to quit smoking, further proving that she knew smoking was not healthy.

Her attempts to quit were also lacking, Walker said. She did not make any serious effort until the early 1990s, when she sought out nicotine replacement therapy that had been around by then for a decade, he said.

Marion Dion died in 1994.

On Tuesday, Walker argued that George Dion could not show that his wife had primary lung cancer.

"No one actually looked in her lung to determine if there's cancer there," Walker said.

He added that Marion Dion was not coughing or displaying other symptoms typical of lung cancer patients when she first began treatment.

However, Wichmann pointed to her death certificate and treatment records, which listed lung cancer, bone metastases and hypercalcemia as causes of death.

R.J. Reynolds, he said, did not produce any witnesses who disproved those findings.

"Where's the medical witness to support Reynolds' theory that [all of the doctors who treated Marion Dion] all committed malpractice because they treated this lady for lung cancer from smoking when she really had cancer of the uterus?" Wichmann said, raising his voice. "Please keep your eye on the ball in this case."

The case is one of thousands stemming from the landmark Engle class action against tobacco companies.

The Florida Supreme Court had decertified the Engle class in 2006 and overturned a $145 billion verdict, but allowed up to 700,000 people who could have won judgments to rely on the jury's findings, to file suits of their own. Those findings included conclusions that smoking causes certain diseases and that tobacco companies hid smoking's dangers.

For more coverage of this trial, visit Courtroom View Network.

George Dion is represented by Mark E. Millard and Bryan C. Payne of Engstrom Lipscomb & Lack and William J. Wichmann.

R.J. Reynolds is represented by John Walker, Jack Williams, Jennifer Weizenecker and Stephen Paterson of Jones Day.

The case is Dion v. R.J. Reynolds Tobacco Co., case number 13CA5673, in the 12th Judicial Circuit Court of the State of Florida.

--Editing by Edrienne Su.

Tuesday, May 10, 2016

Why Trump is Worse than Cruz | GOPLifer

Chris Ladd is a Republican activist, a classical conservative. He sees no place for himself in the Trump takeover of the Republican party.
Why Trump is Worse than Cruz | GOPLifer
For me there is no possibility of compromise with the party of Trump. The fact that he can’t win offers no shelter from the impact he will have on the party and on our politics at large. There are no “good Nazis.” As the party’s nominee, Donald Trump changes what it means to be a Republican in a manner that carries inescapable moral culpability.
Without a political party it isn’t clear what avenues would remain open for my meaningful political participation. There’s little reason to think that a Democratic “big tent” big enough to accommodate me could very long retain its structural integrity.  Future directions remain to be worked out, but this much is plain – the Party of Donald Trump will not include me.

Thursday, May 5, 2016

E-Cigarettes Will Be Subject To FDA Regulation - Law360

The FDA should regulate marijuana too.  - gwc
E-Cigarettes Will Be Subject To FDA Regulation - Law360
by Emily Field
Law360, New York (May 5, 2016, 11:08 AM ET) -- The U.S. Food and Drug Administration on Thursday announced that it's finalized a rule that expands its ability to regulate all tobacco products — including e-cigarettes, hookah and pipe tobacco, and cigars — and bars retailers from selling those products to juveniles under 18 years old.

Before Thursday, there was no federal law preventing the sale of e-cigarettes, cigars or hookah tobacco to minors, the FDA said. The rule — which will go into effect in 90 days — will require manufacturers to show the agency that tobacco products brought to market after February 2007 meet federal public health standards and to submit an application to market their new tobacco products.

The agency will take into account ingredients, product design and health risks, as well as the attraction of e-cigarettes and other tobacco products to young people and non-smokers.

"As cigarette smoking among those under 18 has fallen, the use of other nicotine products, including e-cigarettes, has taken a drastic leap," U.S. Health and Human Services Secretary Sylvia Burwell said in a statement. "All of this is creating a new generation of Americans who are at risk of addiction.”

The FDA first proposed the long-awaited regulations under the Family Smoking Prevention and Tobacco Control Act — the 2009 law that empowered the agency to oversee manufacturing standards for tobacco products — in 2014. At the time, the FDA had only regulated e-cigarettes sold for therapeutic purposes, which are overseen by the FDA's Center for Drug Evaluation and Research.

In the absence of federal regulation, various states had taken their own approaches to regulating the booming new market of e-cigarettes, battery-operated products that convert nicotine and other chemicals into an aerosol that users inhale.

E-cigarette makers have tended to market the products as a safer option to traditional cigarettes, but the FDA said that since the regulations were first proposed there have not been enough studies to show if that is true, or even how much nicotine or other potentially harmful chemicals its users inhale.

Tuesday, May 3, 2016

Donald Trump is really going to be the nominee. This is actually happening. - Vox

A fundamental part of the disorder that is the GOP.  Republicans actually beliwev that discrimiantion against whites is a bigger problem than discrimination against Black and other minorities. The GOP truth deficit is appalling - and dangerous - but unlikely toelectaPresident. Mattt Yglesias - Vox. -gwc
Donald Trump is really going to be the nominee. This is actually happening. - Vox
by Matthew Iglesias

China's President Xi warns of Party "cabals and cliques" - Xinhua | English.news.cn

Clique  结党 营私[jiedang yinsi] is  a very bad word in the Chinese lexicon.  When I was in the Peace Corps in India (1967-1969)  we listened every night on the short wave to Radio Peking.  It was the height of the Cultural Revolution (the Great Proletarian Cultural Revolution).  The Mao-led struggle against "revisionism" and against "capitalist roaders" was intense.  The USSR was the heart of "revisionism".  Its government was referred to only by this term "the soviet renegade revisionist clique".  
So talk of cliques is about the identification of enemies.  Xi Jin Ping has certainly generated some with his vigorous anti-corruption campaign, and signs that he intendeds to accrue more power than has been the pattern of the years since the "reform and opening" began in 1978. - GWC
Thanks to Carl Minzner for the heads up.

Xi warns of Party "cabals and cliques" - Xinhua | English.news.cn

Xi warns of Party "cabals and cliques"

BEIJING, May 3 (Xinhua) -- President Xi Jinping has warned of "cabals

and cliques" in the Communist Party of China (CPC), while also denying

that the ousting of officials on corruption charges indicated a

"'House of Cards' power struggle."

"There are careerists and conspirators existing in our Party and

undermining the Party's governance. We should not bury our heads in

the sand and spare these members but must make a resolute response to

eliminate the problem and deter further violations," said Xi in a

speech published in full text in Tuesday's edition of the People's


Xi, also general secretary of the CPC Central Committee, gave the

speech in January, at a plenary session of the CPC Central Commission

for Discipline Inspection which mapped out the anti-graft work in


He said "some officials have been forming cabals and cliques to

covertly defy the CPC Central Committee's decisions and policies" and

that they "risk compromising the political security of the Party and

the country."

In response, the CPC will step up its anti-corruption campaign,

according to the president.

"We must make it clear that our Party's fight against corruption is

not a snobbish affair that discriminates between different people, and 

is not a 'House of Cards' power struggle," he added."


结党营私 - gang up for selfish [private] interests; band together for selfish purposes; engage in factional activities in pursuit of personal gains; form a clique [cabal]

Monday, May 2, 2016

America Has Never Been So Ripe for Tyranny --Andrew Sullivan - NYMag

Andrew Sullivan sounds the alarm about Trumpism: the celebration of anger and ignorance. - gwc
America Has Never Been So Ripe for Tyranny -- NYMag
by Andrew Sullivan
As this dystopian election campaign has unfolded, my mind keeps being tugged by a passage in Plato’s Republic. It has unsettled — even surprised — me from the moment I first read it in graduate school. The passage is from the part of the dialogue where Socrates and his friends are talking about the nature of different political systems, how they change over time, and how one can slowly evolve into another. And Socrates seemed pretty clear on one sobering point: that “tyranny is probably established out of no other regime than democracy.” What did Plato mean by that? Democracy, for him, I discovered, was a political system of maximal freedom and equality, where every lifestyle is allowed and public offices are filled by a lottery. And the longer a democracy lasted, Plato argued, the more democratic it would become. Its freedoms would multiply; its equality spread. Deference to any sort of authority would wither; tolerance of any kind of inequality would come under intense threat; and multiculturalism and sexual freedom would create a city or a country like “a many-colored cloak decorated in all hues.”
This rainbow-flag polity, Plato argues, is, for many people, the fairest of regimes. The freedom in that democracy has to be experienced to be believed — with shame and privilege in particular emerging over time as anathema. But it is inherently unstable. As the authority of elites fades, as Establishment values cede to popular ones, views and identities can become so magnificently diverse as to be mutually uncomprehending. And when all the barriers to equality, formal and informal, have been removed; when everyone is equal; when elites are despised and full license is established to do “whatever one wants,” you arrive at what might be called late-stage democracy. There is no kowtowing to authority here, let alone to political experience or expertise.

Sunday, May 1, 2016

A Mockery of Justice for the Poor - John Pfaff - The New York Times

My colleague John Pfaff is on the money here.  The failure/destruction of the public defender system in much of the country is a product of the politics of resentment - much of it with a racial tinge - that has dominated so much of our politics in the past 50 years (starting with Richard Nixon's 1968 election).
Prosecutors charge more often, using tough on crime as the springboard to elected office, a message to which voters have long responded favorably.
As Judge Jed Rakoff has pointed out prosecutors have tremendous leverage and untrammeled discretion.  In 1980 some 17% of federal defendant went to trial.  Today it is 3%.  Longer sentences are part of the story - but starving public defenders is a rarely acknowledged big part of the mass incarceration which has outlived high crime rates.
New Jersey has been a bright spot. My classmate Dale Jones led the capital defense unit at the statewide Office of the Public Defender.  In some 220 capital trials only 60 were sentenced to death.  In the 25 years from the restoration of the death penalty in New Jersey to its repeal in 2007 - astory that is told in this symposium which I organized - Legislation, Litigation, Reflection, and Repeal: the Legislative Repeal of Captial Punishment in New Jersey.

A Mockery of Justice for the Poor - The New York Times
by John Pfaff (Fordham Law School)

OVER the past year, everyone from the conservative Right on Crime project to the Black Lives Matter movement has pushed criminal justice reform to the forefront of political debates. Yet politicians at every level of government remain almost completely silent about one of the biggest crises facing criminal justice: the utter collapse of indigent defense.
In the landmark caseGideon v. Wainwright, the Supreme Court held in 1963 that the state or local government had to provide a lawyer to any defendant facing prison time who could not afford his or her own. This was no minor decision. Approximately 80 percent of all state criminal defendants in the United States qualify for a government-provided lawyer.
Yet despite this constitutional guarantee, state and county spending on lawyers for the poor amounts to only$2.3 billion — barely 1 percent of the more than $200 billion governments spend annually on criminal justice.
Worse, since 1995, real spending on indigent defense hasfallen, by 2 percent, even as the number of felony cases has risen by approximately 40 percent.
Not surprisingly, public defense finds itself starved of resources while facing impossible caseloads that mock the idea of justice for the poor.

Poet and Prophet: The peacemaking legacy of Daniel Berrigan, S.J. | America Magazine

There is so much to say about Dan Berrigan - the inspired leader of the Catholic left - something too little remembered in an era in which conservative popes and bishops used absolute opposition to abortion to promote the political right - which their clericalist authoritarianism made their natural home to begin with.
But for mine - the Vatican II generation - the Church led by encouraging the ecumenical movement in a world of religious pluralism (see John Courtney Murray, S.J.), repudiating its age old anti-semitism (see John Connelly's  From Enemy to Brother), and embracing peacemaking and social justice (see Dorothy Day, and Cesar Chavez).  In that era no voice was more insistent or prophetic than that of Daniel Berrigan who with his brother Philip led the Catholic peace movement.
The excerpt below is chosen mainly to show that Dan taught at my high school.  We brought him to Holy Cross in 1966 to read poetry and talk about the war.  I had the good fortune to be his driver.  I heard him on other occasions - speaking at rallies, reading poetry, etc.  He inspired my entire family. - gwc
Poet and Prophet: The peacemaking legacy of Daniel Berrigan, S.J. | America Magazine'
by Luke Hansen, S.J.

***After being ordained a priest on June 19, 1952, Berrigan went to France for a year of studies and ministry, the final stage of Jesuit formation, and was influenced by the Worker Priest movement. Berrigan professed final vows on the Feast of the Assumption in 1956.

Berrigan taught French and philosophy at Brooklyn Preparatory School from 1954 to 1957, won the prestigious Lamont Poetry Prize in 1957 for his first book of poetry, Time Without Number and then taught New Testament at Le Moyne College in Syracuse, N.Y.

In 1963, Berrigan embarked on a year of travel, spending time in France, Czechoslovakia, Hungary, Rome, South Africa and the Soviet Union. He encountered despair among French Jesuits related to the situation of Indochina, as the United States ramped up military involvement in Vietnam.

Berrigan returned home in 1964 convinced that the war in Vietnam “could only grow worse.” So he began, he later wrote, “as loudly as I could, to say ‘no’ to the war…. There would be simply no turning back.”

He co-founded the Catholic Peace Fellowship and the interfaith group Clergy and Laity Concerned about Vietnam, whose leaders included Martin Luther King Jr., Richard John Neuhaus and Abraham Joshua Heschel.

Berrigan regularly corresponded with Thomas Merton, Dorothy Day and William Stringfellow, among others. He also made annual trips to the Abbey of Gethsemani, Merton’s home, to give talks to the Trappist novices.

Saturday, April 30, 2016

Daniel J. Berrigan, Defiant Priest Who Preached Pacifism, Dies at 94 - The New York Times

Our apologies, good friends, for the fracture of good order, the burning of paper instead of children. How many must die before our voices are heard, how many must be tortured, dislocated, starved, maddened? When, at what point, will you say no to this war?
Daniel J. Berrigan, Defiant Priest Who Preached Pacifism, Dies at 94 - The New York Times
The Rev. Daniel J. Berrigan, a Jesuit priest and poet whose defiant protests helped shape the tactics of opposition to the Vietnam War and landed him in prison, died on Saturday in New York City. He was 94.
His death was confirmed by the Rev. James Martin, a Jesuit priest and editor at large at America magazine, a national Catholic magazine published by Jesuits. Father Berrigan died at Murray-Weigel Hall, the Jesuit infirmary at Fordham University in the Bronx.
The United States was tearing itself apart over civil rights and the war in Southeast Asia when Father Berrigan emerged in the 1960s as an intellectual star of the Roman Catholic “new left,” articulating a view that racism and poverty, militarism and capitalist greed were interconnected pieces of the same big problem: an unjust society.
It was an essentially religious position, based on a stringent reading of the Scriptures that some called pure and others radical. But it would have explosive political consequences as Father Berrigan; his brother Philip, a Josephite priest; and their allies took their case to the streets with rising disregard for the law or their personal fortunes.
A defining point was the burning of Selective Service draft records in Catonsville, Md., and the subsequent trial of the so-called Catonsville Nine, a sequence of events that inspired an escalation of protests across the country; there were marches, sit-ins, the public burning of draft cards and other acts of civil disobedience.

At Yale, a Right That Doesn’t Outweigh a Wrong - The New York Times

This week Yale's leaders decided to retain John C. Calhoun as the name of one of its residential colleges.  Calhoun was the South Carolina Senator, and Vice President whose advocacy of slavery and nullifcation make him themost deplorable man ever to hold the office ofVice President of the United States of America,
Yale explained  that it would be whitewashing history to remove his name.  Instead they changed the names of two other colleges to Benjamin Franklin and Anna Pauline Murray - a black civil rights leader of great historical importance.  It's a balancing that I don't buy. Certainly students and others should learn of the respect once accorded to slavers by our leading instituions. But I think that retaining the name is a shame. -gwc
At Yale, a Right That Doesn’t Outweigh a Wrong - The New York Times
by Glenda Elizabeth Gilmore
"****his week at Yale, the arc of justice bent both ways. It reached back to sustain Calhoun’s name on a college where students of color have to live throughout their Yale experience. But it moved forward to sustain the Yale community with Pauli Murray’s lived imperative to fight injustice. Murray, not Calhoun, represents Yale values today; yet his name remains. Murray, not Calhoun, teaches us the lessons we need to learn about discrimination in all of its manifestations.
When A. Bartlett Giamatti, Yale’s president at the time, presented an honorary doctorate in divinity to Murray in 1979, he told her: “You are an inspiration to those who seek the upward way for the soul and for society. Others have always followed after.” It is only a matter of time before Calhoun will be forced to make his exit, and Murray will, once again, see her “lost causes found.” "

Bishops release religious freedom video for 50th anniversary of 'Dignitatis Humanae' | National Catholic Reporter

The United States Conference of Catholic Bishops has issued a statement on religious freedom on the 50th Aanniversary of the Vatican II statement Human Dignity an inspring call for freedom of consciousness at the height of the ecumenical movement.  Led by John Courtney Murray, S.J. the Church moved beyond centuries of intolerance.  The other epochal event of the time was the Church's renunciation of the anti-Semitism that had long scarred Christendom.  The story of the struggle is brilliantly recounted in John Connelly's From Enemy to Brother.

Unfortunately the culture warriors who dominate the U.S. Catholic Church have used this anniversary to pen a hyperbolic doom and gloom video.  By linking the grim situation of Christians in the Arab world to the "heroic" efforts of the Little Sisters of the Poor to avoid even the slightest complicity with contraception the Bishops' video shows how little they understand about conscience: that people have the right to control their procreation and they do all their other creative efforts. Sad! - gwc
Bishops release religious freedom video for 50th anniversary of 'Dignitatis Humanae' | National Catholic Reporter
by Tom Roberts

"Look at what's happening to Christians in the Middle East," says Lori, as shots of heavily armed forces appear in another unidentified foreign city. "Look at the non-violent but increasing exclusion of religion from the public square," he continued, as the video cuts to a shot of the Ten Commandments monument that was removed last year from the Oklahoma Capitol grounds because that state's supreme court decided it violated provisions of the state constitution.
Noticeably lacking from the video and its discussion of the erosion of religious liberty and religious presence in the public square were the visits to the United States by four of the most recent popes, dating back to Paul VI and including the 2015 visit by Pope Francis.
It perhaps would have been too contradictory of the video's thesis of cultural hostility toward religion and religious institutions to show Francis speaking to a special joint session of Congress, or being greeted at the airport upon arrival by President Obama. There followed several days of public adulation of the pontiff with throngs of people lining streets in Washington, D.C. and New York City and concluding with a huge outdoor Mass and other celebrations on Philadelphia's Benjamin Franklin Parkway, all of it amply protected by law enforcement paid for by the public."

Tuesday, April 26, 2016

NJ Justices Expand Fee-shifting Rule to Non-Clients

Rejecting the entreaties of the State Bar Association, the New Jersey Supreme Court expanded its fee shifting rule for prevailing legal malpractice plaintiffs.  The Court - which has since 1996 adhered to a judge-made rule that it slowly extended, first beyond negligence-based claims, to those involving other breaches of duty to clients.
But now in Innes v. Marzano-Lesnevich the court has extended the rule of Saffer v. Willoughby (1996) to  a non-client - the beneficiary of an escrow agreement breached intentionally by the defendant attorney.
Despite the slippery slope arguments of the dissenters the limitation to intentional breaches of duty by lawyers as escrow agents will in fact sharply limit the further expansion of the exception to the so-called American Rule.

The case arose from the decision of a successor attorney not to abide by the agreement of the parties - that the divorcing wife's attorney would hold the child's passport to prevent removal of the young child from the United States. The defendant lawyer handed over the passport to the mother without the father's consent, the child was taken to Spain where Spanish courts, ruling in the father's absence barred any contact with the young child of the marriage.  The mother was jailed for reusing to return the child to the U.S. and eventually convicted of child-napping.  A large verdict for plaintiff was awarded in the Superior Court,

I was plaintiff's expert on breach of fiduciary duty at trial.  After initially denying that she had handed over the escrowed passport in violation of the agreement, the defendant admitted it.  She asserted that the  parties had abrogated the signed escrow agreement.   I treated the breach as a flagrant violation of a duty implied in law when she retained the passport and agreement as successor attorney in a divorce case.  But the case was sent to the jury as a negligence case.  The Supreme Court has now remanded the case to the trial judge to make a specific fact finding on intentional breach.  The court observed that the record was sufficient to support such a finding, so it is likely that the trial judge will make the required finding.  - GWC

NJ Justices Expand Fee-shifting Rule to Non-Clients
by Michael Booth//New Jersey Law Journal.

A sharply divided New Jersey Supreme Court ruled April 26 that attorneys can be held liable for counsel fees if they are found to have intentionally breached their fiduciary duty to non-clients.
In a 3-2 ruling in Innes v. Marzano-Lesnevich, the majority expanded the fee-shifting standards set in its 1996 ruling in Saffer v. Willoughby, where the court said attorneys could be held liable for counsel fees when their clients are successful in legal malpractice actions.
Justice Lee Solomon, writing for the majority, said the ruling was a slight extension of Saffer and another small departure from the so-called "American rule"—the doctrine that says parties in civil cases are largely responsible for their own counsel fees.
Chief Justice Stuart Rabner and Justice Barry Albin joined in the ruling.

"Consistent with our case law, we reaffirm that a prevailing beneficiary may be awarded counsel fees incurred to recover damages arising from an attorney's intentional violation of a fiduciary duty," Solomon said.
Justice Jaynee LaVecchia, joined by Appellate Division Judge Mary Cuff, dissented, saying the majority's ruling represented a further deterioration of the American rule.
"In its present adjustment to our case law governing fee shifting, the majority deals the American rule yet another blow by expanding awards of attorneys' fees to non-clients of attorneys in escrow settings," LaVecchia said.
Justices Anne Patterson and Faustino Fernandez-Vina recused.

"We refine our tightly circumscribed exception to New Jersey's general rule against awarding counsel fees to prevailing parties and hold that, because defendants were acting in a fiduciary capacity as trustees and escrow agents for both Innes and Carrascosa, if they intentionally breached the fiduciary obligation to Innes by releasing Victoria's United States passport to Carrascosa without Innes' permission, defendants can be held liable for counsel fees," Associate Justice Lee Solomon said.

"Innes relied on defendants to carry out their fiduciary duties and responsibilities … and prevent Carrascosa from taking Victoria away from him," he said. "As the Appellate Division concluded, there is substantial support in the record from which to conclude that defendants' conduct was intentional."