Friday, August 16, 2019

East Bay Sanctuary: 9th Circuit Panel Narrows Injunction Against Trump Asylum Order

East Bay Sanctuary v. Barr
9th Circuit federal appeals court panel (2-1) denies stay sought by government but rejects nationwide injunction blocking Trump refusal to consider asylum applications by those who do not cross border at designated  entry points.  Dissenter would grant nationwide injunction.

William Barr is wrong about reform prosecutors. Here is what we stand for. - The Washington Post

William Barr is wrong about reform prosecutors. Here is what we stand for. - The Washington Post: It’s wrong to paint social-justice efforts as invitations to criminals.
In a speech this week to the Fraternal Order of Police, Attorney General William P. Barr lamented “the emergence in some of our large cities of district attorneys who style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook and refusing to enforce the law.”
On the evening that one of us (Parisa Dehghani-Tafti) won the Democratic nomination for commonwealth’s attorney in Arlington, Del. Todd Gilbert, the Virginia House GOP leader, similarly tweeted: “These social justice prosecutors will inevitably get their citizens hurt, robbed, burglarized or much worse because of their approach to crime.”
Sounds awful, but don’t worry: There is a vast distance between what Barr and other opponents of progress in criminal justice say reform prosecutors believe and what we actually believe. Allow us to summarize.

Thursday, August 15, 2019

FDA Unveils New Graphic Warnings For Cigarette Packs - Law360

FDA Unveils New Graphic Warnings For Cigarette Packs - Law360: The U.S. Food and Drug Administration on Thursday released a notice of proposed rule requiring graphic, full-color warning images on cigarette packs and tobacco advertisements.  Such  measures are mandated by the 2009 Family Smoking Prevention and Tobacco Control Act.

The D.C. Circuit in 2012 blocked graphic FDA warnings saying the FDA had no evidence that such advertising would reduce risks.  The tobacco companies' First Amendment claims were thus sustained.  A good (bad) example of the impact of Federalist Society vetted conservative judges.  As the scientific capacities of regulatory agencies are weakened such judges will find it easier to strike down health and safety regulations.

Hong Kong lawyer calls for lawyers to monitor abuses

Friday, August 9, 2019

Lawyer’s Use of Internet Search Engine Keyword Advertising OK'd by New Jersey Supreme Court’s Advisory Committee on Professional Ethics

The New Jersey Supreme Court’s Advisory Committee on Professional Ethics (ACPE) has issued a binding Opinion 735 Lawyer’s Use of Internet Search Engine Keyword Advertising
The Committee- whose published opinions bind the bar – subject to discretionary appeal -  responded to an inquiry: “asking whether a lawyer may, consistent with the rules governing attorney ethics, purchase a Google Adword℠ or keyword that is a competitor lawyer’s name, in order to display the lawyer’s own law firm website in the search results when a person searches for the competitor lawyer by name. Internet search engine advertising programs permit businesses to purchase certain keywords or phrases; when a person searching on the internet uses those words in the search, the websites of purchasers of the keywords will appear in the search results, ordinarily presented as paid or “sponsored” ads.”  The ACPE found that acceptable but abjured any method that would surreptitiously direct an inquirer from the competitor’s website to the lawyer’s own site.

The issue has been addressed by Texas, Wisconsin, and North Carolina.  Like the first two the Court Committee explained that so long as the result of a network search yields a “sponsored” result The purchase of “keywords” is permissible:
The Committee concurs with the approach of Texas and Wisconsin and finds that purchasing keywords of a competitor lawyer’s name is not conduct that involves dishonesty, fraud, deceit, or misrepresentation. The websites of the keyword purchaser’s law firm and the competitor’s law firm will, presumably, both appear in the resulting search. The keyword purchaser’s website ordinarily will appear as a paid or “sponsored” website, while the competitor lawyer’s website will appear in the organic results (unless the competitor has purchased the same keyword, in which case it will also appear as a paid or “sponsored” website). The user can choose which website to select and the search engine ordinarily will mark the keywordpurchased website as paid or “sponsored.” This is not deceptive, fraudulent, or dishonest conduct within the meaning of Rule of Professional Conduct 8.4(c).
The Committee further finds that purchasing keywords of a competitor lawyer’s name is not conduct prejudicial to the administration of justice. The standard for conduct prejudicial to 1 In 2013, the Florida Bar’s Standing Committee on Advertising proposed an opinion that would have found it to be a deceptive and misleading advertising technique for a lawyer to purchase the name of another lawyer or law firm as a keyword in search engines so that the lawyer’s advertisement or sponsored website link appears when a person uses the other lawyer or law firm’s name as a search term. This proposed opinion, however, was rejected by the Board Review Committee on Professional Ethics and withdrawn by the Florida Bar Board of Governors.  
The ACPE  held "this Rule applies to “particularly egregious conduct,” or conduct that “flagrantly violat[es] . . . accepted professional norms.” In re Helmer, 237 N.J. 70, 83 (2019) (quoting In re Hinds, 90 N.J. 604, 632 (1982)). Purchasing keywords that are the name of a competitor lawyer is not egregious or flagrant conduct. Inquirer also asked whether a lawyer may pay Google to insert a hyperlink on a competitor lawyer’s name that diverts the user to the first lawyer’s website. The Committee finds that surreptitiously redirecting a user from the competitor’s website to the lawyer’s own website is purposeful conduct intended to deceive the searcher for the other lawyer’s website.

Wednesday, August 7, 2019

Former Vice President Joe Biden Remarks on Mass Shootings |

Former Vice President Joe Biden Remarks on Mass Shootings | In the wake of the mass shootings in El Paso, Texas, and Dayton, Ohio, former Vice President Biden delivers a speech in Burlington, Iowa, in which he decries the damage being done by Donald Trump.

Elizabeth Warren: school teacher

Tuesday, August 6, 2019

Adam Serwer The most dangerous idea
Adam Serwer    An excellent historical survey of how white bias has harmed us and blinds us.

Saturday, August 3, 2019

Does Church Teaching Change? | Commonweal Magazine

Does Church Teaching Change? | Commonweal Magazine: Vatican II marked a turning point, showing that appropriate change did not mean losing one’s identity but, rather, enhancing it or salvaging it from ossification.

his article is an excerpt from When Bishops Meet: An Essay Comparing Trent, Vatican I, and Vatican II, published this month by Harvard University Press. Copyright © 2019 by the president and fellows of Harvard College. Used by permission. All rights reserved.

Although the documents of the early councils of the church recognized that bad customs and bad teaching had to be uprooted, which is a form of change, they most characteristically betray a sense of continuity with previous Christian teaching and practice. They called for continuation and implementation of ancient customs and ancient traditions—antiqua lex, antiqua traditio.
The documents of the medieval councils very much follow the same pattern. Although they in fact deal with the twists and turns in culture and institutional structures of their day, they lack a keen sense of discrepancy between past and present, and thus the councils never felt the necessity to address the discrepancy directly. Only with the Italian Renaissance of the fifteenth century and then the Reformation early in the next century did this ahistorical mindset receive its first serious challenges. The Council of Trent was, therefore, the first council that had to take those challenges into account.

Wednesday, July 31, 2019

Bernie Sanders is the Pied Piper of Healthcare Hamlin | xpostfactoid

Bernie Sanders is the Pied Piper of Healthcare Hamlin | xpostfactoid: Bernie Sanders is determined to keep Democratic healthcare debate in utopian territory  SUBSCRIBE!
by Andrew Sprung

Political battles can be semantic, but important. Such is the case with Democrats wrestling with the meaning of Medicare for all.

This week Kamala Harris came out with a healthcare reform plan that seems designed to resolve her past flip-flops as to whether private insurance should be phased out entirely. In brief, she proposed a 10-year path to "Medicare for all" that includes Medicare Advantage -- private plans reimburses by the federal government and conforming to strict coverage rules. Employers could also offer "Medicare Advantage" plans.  Lots of question marks, but the intent to preserve the public/private hybrid of Medicare as we know it is clear.

Bernie's camp lit into the plan, claiming in effect that the his bill's title (Medicare for All) is politically trademarked. "“Call it anything you want, but you can’t call this plan Medicare for All," Sanders' campaign manager Faiz Shakir said in a statement. Pramila Jayapal, lead sponsor of the House version, tweeted, "as lead sponsor of #MedicareForAll, I find it misleading when my fellow Democrats use the #M4A name to describe proposals that are NOT #MedicareForAll."

That's a straight trademark play: we own the hashtag, we own the name. The subtext is that the
One True Path to Medicare for All is Sanders and Jayapal's Big Rock Candy Mountain in which a single government entity provides 100% coverage of everything for everyone, funded entirely by over $3 trillion per year in new taxes ($1.5 trillion according to Bernie).
Charles Gaba sensibly pointed out that some Democrats "have interpreted Medicare-for-all to simply mean expanding the current program to more people while keeping the existing limitations on covered services, as well as premiums, deductibles and co-pays." And, more provocatively,

even if you do use the existing program structure as your baseline, Harris’s plan is actually closer to the current definition of Medicare, because it would retain Medicare Advantage. This is no small thing, as more than 22 million people — a third of all Medicare enrollees — have Medicare Advantage plans. In fact, David Bowen, who worked for the late senator Ted Kennedy (D-Mass.), said Harris’s plan “closely resembles” the Medicare-for-all bill that Kennedy and Rep. John Dingell (D-Mich.) introduced in 2006. 
This is manifestly true. It doesn't mean that Harris's plan is better than Bernie's bill, or that either has the remotest chance of being passed or enacted in the foreseeable future, but it's a simple statement of fact: Harris's endgame more closely resembles enrollment of all Americans in Medicare as it currently exists than does Sanders'.

So what? Well, Sanders is a Pied Piper, luring a large subset of the Democratic base into a cave from whence democracy may never emerge. That is, he is piping a utopian solution -- complete transformation of the $3.5 trillion/year healthcare system within four years, financed by a doubling of U.S. tax revenue -- that threatens to foreclose on any realistic plan to expand access and control costs -- and may sour a good number of progressives on any candidate who proposes something doable, as Bernie fervor did in 2016.

The Sanders camp's attack on the Sanders plan also perpetuates Democrats' rhetorical avoidance of the largest obstacle to affordable healthcare for all: provider payment rates. That's evident in the second half of Fakir's response to the Harris plan. Referring to the preservation of Medicare Advantage:

“Folding to the interests of the health insurance industry is both bad policy and bad politics.”
Possibly true, but...Harris's plan would pay MA plans less than the cost of insuring their members under the public plan. In their denunciations of healthcare profiteering in the U.S., Sanders, Warren, and almost every Democrat alway focus on insurers and pharma and leave out hospitals and doctors' trade groups -- which have joined in coalition with insurers and the pharmaceutical industry to oppose single payer and any public option that pays Medicare rates (or something like them) to providers. Insurers could in fact live with the latter; they are more or less neutral as to provider payment rates, i.e., playing and profiting very happily in the Medicare Advantage and managed Medicaid markets, where their payment rates to providers are effectively constrained by the per-member rates the government pays to them. (Whether they can be better policed than at present when government is their payer is another question.)

Two takeaways from that. First, BernieBrand Medicare for All proponents are as loathe as anyone to verbally assault healthcare providers -- notwithstanding that, as Axios' Caitlin Owens notes, "hospital care is the largest driver of U.S. health prices."  Second, plans that effectively establish one payment schedule for healthcare providers but preserve a role for private insurance, such as the Medicare for America bill, have the potential to split the healthcare industry coalition currently united against major reform.

More broadly, I seriously doubt that a Democratic president elected in 2021 with at best a bare Senate majority is going to have the bandwidth to do more immediately on the healthcare front than  a) end balance-billing, which effectively undermines everyone's insurance; b) patch the ACA, boosting subsidies, enlarging subsidy eligibility, and possibly adding a public option; and c) pass effective legislation to control drug prices. That would in fact constitute a ton of accomplishment. But you'd never know it while listening to Democratic candidates blather about single payer purity.

P.S. A reminder from the Kaiser Family Foundation that while Bernie & co. think they own the brand, they don't:

based on a poll fielded in early 2019, 55% of the public think that they and their families would be able to keep their current health insurance under Medicare-for-all; 54% think they would continue to pay health insurance premiums and 69% think they would continue to pay deductibles and copays for covered health services.

Monday, July 29, 2019

Balkinization: Can Congress Investigate Whether the President Has Conflicts of Interest, is Compromised by Russia, or Has Violated the Law?

Balkinization: Can Congress Investigate Whether the President Has Conflicts of Interest, is Compromised by Russia, or Has Violated the Law?
by Marty Lederman - Georgetown Law
July 29, 2019
The answer to the question in my title is obvious, isn't it?:  Of course Congress can do so.  According to Donald Trump and his (personal) attorneys, however, the correct answer is “no.”  And in a series of pending cases involving challenges to congressional efforts to obtain the President’s financial and tax records, they’re urging the courts to hold that Congress’s oversight and regulatory authorities simply don't extend to investigating the wrongdoing, foreign influence over, and possible conflicts of interest of, the President of the United States.

It’s hard to exaggerate just how profound a challenge this is to our longstanding system of checks and balances.  Yet these cases, and Trump's arguments in them, have mostly flown under the radar: They haven't received much attention in the press or among legal observers.  Perhaps that's as it should be:  After all, if the arguments are as extreme as I'm suggesting, maybe there's nothing much to worry about.  The Trump team is deadly serious, however; the Department of Justice might come to its aid; and it’s possible Trump’s lawyers will find a receptive audience among at least some Supreme Court Justices.  Therefore I thought it might be worthwhile to unpack those arguments a bit in this post.

Background on Congress's Oversight Authority and "Informing" Function

Wednesday, July 24, 2019

Adam Schiff examines Robert Mueller

This is how it is done.

Monday, July 22, 2019


Tuesday, July 16, 2019

Geort Cobway in go back where you came from

Monday, July 15, 2019