Sunday, July 5, 2015

‘Something Must Be Done About Prince Edward County,’ by Kristen Green - The New York Times

The myth that nothing need be done - other than that Black people stop their bad behaviour - grips the bulk of white America- and the United States Supreme Court.  Reminders of just what we did are needed - north and south. - gwc
‘Something Must Be Done About Prince Edward County,’ by Kristen Green - The New York Times
by Thomas Sugrue

On Sept. 10, 1959, black students in Prince Edward County, Va., watched as school buses full of white children rolled through the streets, delivering their charges to the newly opened Prince Edward Academy. To resist court-mandated desegregation, the local school board shuttered the public schools, but not before white volunteers stripped classrooms of desks, books, and supplies for the new academy. Local Jaycees ripped out the high school stadium’s goal posts and transplanted them to the white-only academy’s football field.
Kristen Green, who graduated from the Prince Edward Academy about three decades after it opened, returned to her hometown in 2006 to research the county’s controversial past. She blends history and memoir in a gripping narrative that revolves around her discovery that “Papa,” her beloved grandfather and a well-regarded local dentist, was a segregationist who played a key role in the decision to shut the public schools.
Today, the majority of students in Prince Edward’s public schools are black; but only 5 percent of the private academy’s are. Prince Edward County is no longer the backwater it was in 1959, but there is still little support for the public schools, little will to undo decades of unequal education. Separate and unequal has a new face in Prince Edward County today, with liberty and sovereignty for some.


A Family, a Virginia Town, a Civil Rights Battle
By Kristen Green
Illustrated. 320 pp. Harper. $25.99.

It is time for the bishops to admit defeat and move on.| National Catholic Reporter

How the bishops should respond to the same-sex marriage decision | National Catholic Reporter
by Fr. Thomas Reese, S.J.
It is time for the bishops to admit defeat and move on. Gay marriage is here to stay, and it is not the end of civilization as we know it.
Now that gay marriage is the law of the land, many bishops fear that the next fight will be over the religious freedom of people objecting to gay marriage.
Let's be perfectly clear. In Catholic morality, there is nothing to prohibit a Catholic judge or clerk from performing a same-sex marriage. Nor is there any moral obligation for a Catholic businessperson to refuse to provide flowers, food, space and other services to a same-sex wedding. Because of all the controversy over these issues in the media, the bishops need to be clear that these are not moral problems for Catholic government officials or Catholic businesspeople.
Again, Catholic judges have performed weddings for all applicants, including Catholics who are getting married in violation of church teaching. Catholic businesspeople have provided services to any wedding party, including those of divorced Catholics marrying outside the church. Similarly, there is no moral problem for them to do the same for gay couples.
The church has sophisticated moral teaching that includes the distinction between formal and material cooperation and the elimination of moral culpability when a person is operating under compulsion.
For other believers, these may be moral issues, but not for Catholics. Because of all the rhetoric around these issues, the bishops need to make this clear for scrupulous Catholics.

Colorado’s Push Against Teenage Pregnancies Is a Startling Success - The New York Times

The change in sexual morality in the past fifty years is certainly closely tied to birth control pills.  The consequences of sex outside marriage was no longer pregnancy - and sex could be pursued for intimacy or even recreation. But contraception was not foolproof and it required discipline, and money.  Abortions as a remedy for failed birth control increased markedly - and came to be seen as a right.  Choice!
The Church railed against "artificial contraception" in a losing effort to reverse the tide.  The campaign against legal abortion became almost its defining objective.  They were unable to seek to reduce abortions by contraception since Pope Paul VI surprised everyone with his prohibition in Humanae Vitae.
Now for many Christianity and traditional sexual morality are synonymous if not co-equal.  It will be interesting to see how the recalcitrant traditionalists of Mirror Justice respond to this. - gwc
Colorado’s Push Against Teenage Pregnancies Is a Startling Success - The New York Times
by Sabrina Tavernise
WALSENBURG, Colo. — Over the past six years, Colorado has conducted one of the largest ever real-life experiments with long-acting birth control. If teenagers and poor women were offered free intrauterine devices and implants that prevent pregnancy for years, state officials asked, would those women choose them?
They did in a big way, and the results were startling. The birthrate for teenagers across the state plunged by 40 percent from 2009 to 2013, while their rate of abortions fell by 42 percent, according to the Colorado Department of Public Health and Environment. There was a similar decline in births for another group particularly vulnerable to unplanned pregnancies: unmarried women under 25 who have not finished high school.
“Our demographer came into my office with a chart and said, ‘Greta, look at this, we’ve never seen this before,’ ” said Greta Klingler, the family planning supervisor for the public health department. “The numbers were plummeting.”
The changes were particularly pronounced in the poorest areas of the state, places like Walsenburg, a small city in Southern Colorado where jobs are scarce and unplanned births come often to the young. Hope Martinez, a 20-year-old nursing home receptionist here, recently had a small metal rod implanted under the skin of her upper arm to prevent pregnancy for three years. She has big plans — to marry, to move West, and to become a dental hygienist.

Charleston Eulogy: Obama's most successful performance

President Obama's eulogy for murdered Pastor Clementha Pinckney has been lauded by former presidential speech writer James Fallows as Obama's "most fully successful performance as an orator".  The rhetorical element that lifted the speech was the theme of "grace".  And that set up perfectly for his conclusion - singing Amazing Grace. - gwc

Saturday, July 4, 2015

For whom do we speak? The meaning of the Declaration of Independence

For whom do we speak is a question that judges, political leaders, each of us must answer.  Is it the Founders?  Posterity? The Nation?  Principle? Are we bound by the original meaning of laws?

President Barack Obama - Eulogy - Rev. Clementa Pinckney, College of Charleston, Emanuel A.M.E. Church, Charleston, S.C.  
Rev. Pinckney "embodied the idea that our Christian faith demands deeds and not just words; that the “sweet hour of prayer” actually lasts the whole week long -- (applause) -- that to put our faith in action is more than individual salvation, it's about our collective salvation; that to feed the hungry and clothe the naked and house the homeless is not just a call for isolated charity but the imperative of a just society."

Obama's Eulogy Finds its Place In History - Michiko Kakutani, NY Times

Justice Anthony Kennedy - Opinion of the Court - Obergefell v. Hodges
"The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow  persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex."

President Barack Obama, Remarks on the Supreme Court decision in Obergefell.  "...this ruling is a victory for America.."

THE PRESIDENT: Good morning. Our nation was founded on a bedrock principle that we are all created equal. The project of each generation is to bridge the meaning of those founding words with the realities of changing times -- a never-ending quest to ensure those words ring true for every single American.
Progress on this journey often comes in small increments, sometimes two steps forward, one step back, propelled by the persistent effort of dedicated citizens. And then sometimes, there are days like this when that slow, steady effort is rewarded with justice that arrives like a thunderbolt.

This morning, the Supreme Court recognized that the Constitution guarantees marriage equality. In doing so, they’ve reaffirmed that all Americans are entitled to the equal protection of the law. That all people should be treated equally, regardless of who they are or who they love. "

First Things Symposium - After Obergefell 
Robert George: "How shall we respond to a lawless decision in which the Supreme Court by the barest of majorities usurps authority vested by the Constitution in the people and their elected representatives? By letting Abraham Lincoln be our guide. Faced with the Supreme Court’s Dred Scott decision, Lincoln declared the ruling to be illegitimate and vowed that he would treat it as such. "

C.J. Taney in Dred Scott v. Sandford (1856)

"In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument....No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted."

Obama’s Eulogy, Which Found Its Place in History - The New York Times

Obama’s Eulogy, Which Found Its Place in History - The New York Times
by Michiko Kakutani
Barack Obama’s eulogy for the Rev. Clementa C. Pinckney of the Emanuel African Methodist Episcopal Church in Charleston, S.C., was remarkable not only because the president sang the opening refrain of “Amazing Grace” on live television, and not only because of his eloquence in memorializing the pastor and eight other parishioners killed by a white gunman. It was also remarkable because the eulogy drew on all of Mr. Obama’s gifts of language and empathy and searching intellect — first glimpsed in “Dreams From My Father,” his deeply felt 1995 memoir about identity and family. And because it used those gifts to talk about the complexities of race and justice, situating them within an echoing continuum in time that reflected both Mr. Obama’s own long view of history, and the panoramic vision of America, shared by Abraham Lincoln and the Rev. Dr. Martin Luther King Jr., as a country in the process of perfecting itself.
Mr. Obama’s view of the nation’s history as a more than two-century journey to make the promises of the Declaration of Independence (“that all men are created equal”) real for everyone, his former chief speechwriter, Jon Favreau, suggested in an email, is “both an American and a religious sentiment” — predicated upon the belief that individual sinners and a country scarred by the original sin of slavery can overcome the past through “persistent, courageous, sometimes frustrating efforts.”

Robert George~ Obergefell ~the New Dred Scott?

The conservative Christian online journal First Things has posted a series of laments about Obergefell v. Hodges.   Recognition of same-sex marriage is another step on the road to ruin, to secular tyranny, etc.  Below are Robert George's remarks.  He is considered their heavy weight.    How bad is it?  Bad. - gwc
First Things Symposium on Obergefell

Robert P. George

How shall we respond to a lawless decision in which the Supreme Court by the barest of majorities usurps authority vested by the Constitution in the people and their elected representatives? By letting Abraham Lincoln be our guide. Faced with the Supreme Court’s Dred Scott decision, Lincoln declared the ruling to be illegitimate and vowed that he would treat it as such. He squarely faced Chief Justice Roger Brooke Taney’s claim to judicial supremacy and firmly rejected it. To accept it, he said, would be for the American people “to resign their government into the hands of that eminent tribunal.”

Today we are faced with the same challenge. Like the Great Emancipator, we must reject and resist an egregious act of judicial usurpation. We must, above all, tell the truth: Obergefell v. Hodges is an illegitimate decision. What Stanford Law School Dean John Ely said of Roe v. Wade applies with equal force to Obergefell: “It is not constitutional law and gives almost no sense of an obligation to try to be.” What Justice Byron White said of Roe is also true of Obergefell: It is an act of “raw judicial power.” The lawlessness of these decisions is evident in the fact that they lack any foundation or warrant in the text, logic, structure, or original understanding of the Constitution. The justices responsible for these rulings, whatever their good intentions, are substituting their own views of morality and sound public policy for those of the people and their elected representatives. They have set themselves up as superlegislators possessing a kind of plenary power to impose their judgments on the nation. What could be more unconstitutional—more anti-constitutional—than that?

The rule of law is not the rule of lawyers—even lawyers who are judges. Supreme Court justices are not infallible, nor are they immune from the all-too-human temptation to unlawfully seize power that has not been granted to them. Decisions such as Dred Scott, Roe v. Wade, and Obergefell amply demonstrate that. In thinking about how to respond to Obergefell, we must bear in mind that it is not only the institution of marriage that is at stake here—it is also the principle of self-government. And so we must make clear to those candidates for high offices who are seeking our votes, that our willingness to support them depends on their willingness to stand, as Abraham Lincoln stood, for the Constitution, and therefore against judicial decisions—about marriage or anything else—that threaten to place us, to quote Jefferson, “under the despotism of an oligarchy.”

Robert P. George is McCormick Professor of Jurisprudence at Princeton University.

Friday, July 3, 2015

The IMF: An inexcusable, incorrigible failure — Crooked Timber

The IMF: An inexcusable, incorrigible failure — Crooked Timber
by John Quiggin

Chris has already pointed out the failure of the core European institutions in their response to the global financial crisis. One excuse that can be made for these institutions is that they are still in the process of development, and were ill-prepared, intellectually and institutionally, for an event so far outside their experience. The ECB and EC developed in a period when controlling inflation and stabilizing government debt were the key imperatives, and they responded to the crisis accordingly.
No such excuse can be made for the third member of the Troika, the International Monetary Fund. The IMF has understood from the start that the austerity policies it has imposed are economically unsound and a repetition of past failures. And yet it has been unwilling and unable to do anything else.
The Asian financial crisis of the late 1990s was a near-perfect dry run for the GFC. Speculation arising from rapidly expanding and weakly regulated financial systems produced a string of failures and capital flight in countries that had previously been regarded as having ‘miracle’ economies. Governments inevitably ran into financial difficulties. The IMF, used to dealing with debt crises arising from public profligacy, came in with its standard package of ‘reform’ measures, privatisation, spending cuts and so on. These measures were totally inappropriate to deal with a crisis originating in the private sector, and only made matters worse. The most successful performer in the region was Malaysia where the government ignored the IMF, and imposed capital controls. After the event, everyone agreed that the IMFhad learned its lesson, and would handle things differently in future. As the GFC has shown, the truth is that the IMF has learned nothing and forgotten nothing.
The institutional failure is made worse by the fact that the IMF’s Research Department, arguably the strongest group of macroeconomic policy researchers anywhere, got their analysis right almost from the start. In 2010, the IMF chief economist Olivier Blanchard (with two colleagues) recognising the limitations of a low inflation policy, proposed raising inflation targets to 4 per cent. In the same year, the IMF World Economic Outlook presented a refutation of the idea of “expansionary austerity”, based on the now-discredited work of Alesina and Ardagna. Subsequent IMF research has reconfirmed the Keynesian view that contractionary fiscal policy will worsen a depression.

The Paragraph On Slavery That Never Made It Into The Declaration Of Independence

Image for the news result
According to a recent poll most white people see the Confederate battle flag as a symbol not of racism but of southern pride.  Really? Must be southern white pride.  And what do southern whites have to be proud of - qua southern white - slavery? segregation?  ancestors and parents who supported both?  Don't it make your blue eyes brown?
Better to remember those in chains as bound with them, as William Blake wrote in the Price of Experience - Let the Slave:
Let the slave grinding at the mill run out into the field
Let him look up into the heavens and laugh in the bnght air
Let the inchained soul, shut up in darkness and in sighing
Whose face has never seen a smile in thirty weary Years
- gwc
The Paragraph On Slavery That Never Made It Into The Declaration Of 

by Ben Railton//Talking Points Memo
"He has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere, or to incur miserable death in their transportation hither … And he is now exciting those very people to rise in arms among us, and to purchase that liberty of whichhe had deprived them, by murdering the people upon whom he also obtruded them: thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another."

Greece: Only the 'No' Can Save the Euro

This was written before the IMF called for a twenty year concession to Greece and 30 billion Euros aid to Greece.  The pressure on Greece is basically the right's usual: cut wages and benefits, boost profits.  - gwc
Greece: Only the 'No' Can Save the Euro
by James Galbraith
***The creditors rejected even [Greece's latest concessions]. They insisted on austerity and also on dictating its precise shape. In this they made clear that they would not treat Greece as they have any other European country. The creditors tabled a take-it-or-leave-it offer that they knew Tsipras could not accept. Tsipras was on the line in any case. He decided to take his chances with a vote.
The stunned and furious reaction of the European leaders was, possibly, not entirely inauthentic. Perhaps they did not realize they were dealing with something not seen in Europe for some years: a political leader. Alexis Tsipras has only been on the international stage for a few months. He is brash, but charming. It would be easy for those as sheltered as Europe's present leaders to fail to figure him out—to fail to realize that like Varoufakis, Tsipras meant what he said.
Faced with Tsipras's decision to call a referendum, Merkel and her Deputy Chancellor Sigmar Gabriel, Hollande of France and David Cameron of Britain—and shamefully also Italy's Matteo Renzi—all sent direct messages to the Greek people, that they would really be voting on membership in the euro. European Commission President Jean-Claude Juncker went further, to say it would be a vote on membership in the European Union. It was an orchestrated threat: surrender or else.
In fact, neither the euro nor the EU is at issue. The plain language of the referendum states that the vote is about the creditors' terms. The threat to expel Greece is an obvious bluff. There is no legal way to eject Greece from the Eurozone or the EU. The referendum is actually, and obviously, on the survival of the elected government in Greece. The European leaders know this, and they are trying now to ensure that Tsipras falls.
What does Tsipras gain by a “no” vote? Apart from political survival, only this: it is his way of proving, once for all, that he cannot yield to the conditions being demanded.
What does Tsipras gain by a “no” vote? Apart from political survival, only this: it is his way of proving, once for all, that he cannot yield to the conditions being demanded. So then the onus will be back on the creditors, and if they choose to destroy a European country, the crime will on their hands for all to see.

Thursday, July 2, 2015

BP Settlement: Attorney General Lynch Announces Agreement in Principle with BP to Settle Civil Claims for the Deepwater Horizon Oil Spill | OPA | Department of Justice

Torts Today: Statement by Attorney General Loretta E. Lynch on the Agreement in Principle with BP to Settle Civil Claims for the Deepwater Horizon Oil Spill | OPA | Department of Justice
The Department of Justice and the Gulf Coast states announced agreement in principle with BP to settle claims for environmental damage, cleanup costs, and clean water act penalties.

The deal will be detailed in a consent decree and submitted for court approval after a public comment period. - gwc

What is a Legislature? Arizona Legislature v. AIRC

In Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRCthe United States Supreme Court - divided 5-4 - with Kennedy swinging to the "left" provoked the now familiar heated rhetoric.  This time it was Justice Roberts dishing out the ridicule.  The people of Arizona by referendum removed the Legislature's power to redistrict Congressional seats (constitutionally mandatory after each census).  They gave it to the Arizona Independent Redistricting Commission.  The Legislature cried foul.
The Constitution guarantees a republican - representative form of government to each state.  And the Elections Clause of Art. I, § 4, cl. 1, provides that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” 

Now Justice Ginsburg for the majority declared that in this case the people were the Legislature.  Oy vey said Roberts.  "What chumps" were the voters who transferred the power to elect Senators from the "Legislature" to the people.  They should just have done a "magic trick" like that performed by the majority.  Words mean what they choose them to mean, etc, etc.  All to get the desired result - presumably to get redistricting out of the hands of the Republican legislative majority, I suppose.  More dastardly liberal manipulation of language. etc. 

Now comes Yale's Jack Balkin with an offering that resolves the contradiction: the AIRC is a new, second Legislature.  Problem solved. - gwc
Balkinization: What is a Legislature?
Now suppose the state amends its constitution to create a second legislative body-- which it calls "Legislature 2". Its members are appointed for fixed terms by the leaders of the older legislature (Legislature 1). Its members, in turn, can also appoint one additional member to break ties. The constitution gives Legislature 2 the power to pass all laws involving redistricting without the possibility of veto by either the Governor or by Legislature 1. Legislature 1 still handles all other issues of election law.

Is Legislature 2 part of the legislative power of the state under the Elections Clause? It is not identical with the people of the state, and its membership is much smaller than the state’s voting population. It is indirectly representative because its members are appointed by members of Legislature 1, and it passes laws. It is not too much of a stretch to say that Legislature 2 is part of “the Legislature” of the state, along with Legislature 1.

In his dissent, Chief Justice Roberts emphasizes that the uses of the word “Legislature” in the rest of the Constitution generally refers to representative bodies, or indirectly representative bodies like the Senate before the 17th Amendment. Legislature 2 meets his objections. He also argues that the 17th Amendment distinguishes between the Legislature of the state and the people of the state. That is not a problem either: as just noted, Legislature 2 is not the same as the people of the state.

Now suppose the state passes a new constitutional amendment. This amendment renames Legislature 2 and calls it the Arizona Independent Redistricting Commission. Should the name matter at all from the standpoint of the Elections Clause?

Is It Time to Start Shutting Down Law Schools? - Bloomberg Business

Is It Time to Start Shutting Down Law Schools? - Bloomberg Business
by Natalie Kitroeff

This month, the American Bar Association provisionally accredited a new law school at Concordia University. More than 200 law schools are accredited in the U.S. An analysis of data from the ABA itself raises the question whether that list should be getting any longer.

Law schools exist for a lot of reasons, but a pretty important one is to prepare people to be lawyers. By that standard, a large handful of institutions seem to be failing. Last year, 10 law schools were unable to place more than 30 percent of their graduating class in permanent jobs that required passing the bar, according to ABA data. Those job numbers don't include positions that schools fund for their graduates or people who say they are starting their own practice.

At the University of Massachusetts School of Law, the American school with the worst job outcomes by this measure, just 22 percent of people who graduated in 2014 got those types of law jobs.

“We are a work in progress, and we need to improve our bar-pass rate and improve our employment, and I am not embarrassed about that,” says Mary Lu Bilek, the dean of U-Mass Law. Forty-two of the 60 U-Mass Law students who took the bar in February or July 2013 passed the test. The school counted 81 graduates in 2014. Bilek notes that theschool's employment numbers have improved in recent years and says she doesn’t think it’s fair to discount people who have opted to do things with their J.D. besides become lawyers.

“The traditional elite jobs aren’t the jobs that our students generally want,” she says. “There’s not room for another law school that wants to have students who want to do that, because there aren’t enough jobs for that.”

Obama Just Made Israeli Settlement Boycotts Kosher

AIPAC successfully pushed to include language directing the U.S. Trade Representative to "discourage" boycotting "Israel or Israeli-controlled territories". Though the Trade Promotion Authority includes that provision, the effect is, ironically, to have pushed the Obama administration to distinguish between Israel and the settlements in the occupied territories. State Department spokesman John Kirby said:
“The U.S. government has never defended or supported Israeli settlements and activity associated with them and, by extension, does not pursue policies or activities that would legitimize them...We will also continue to uphold policies integral to preserving the prospect of a two-state solution to the Israeli-Palestinian conflict.”
The effect is to legitimize boycotts of companies doing business in the occupied territories of the West Bank and Gaza. - gwc
  Obama Just Made Israeli Settlement Boycotts Kosher
by Mitchell Plitnick (Program Director, Foundation for Middle East Peace)

***Now, the Obama Administration is telling us in no uncertain terms that boycotts of settlements are perfectly kosher. It is time to make the call loud and clear: The settlements are illegal. They are not Israel and are not entitled to the same legitimacy that Israel is rightly due. They are, in fact, a serious threat to Israel’s future even as they undermine its moral foundations in the present. The best way to defend Israel against attempts to de-legitimize it is to affirm the illegitimacy of the settlements and thereby strengthen Israel’s legitimacy within its internationally recognized borders. Those who are interested in a better future for both Israel and the Palestinians can accomplish this by simultaneously boycotting settlements and supporting businesses in Israel that do not cross the Green Line into the West Bank.

Strengthen Israel by weakening the settlements that divert enormous resources from the country that needs them. Strengthen it by proclaiming loudly that the occupation that undermines Israel’s security and that provides fodder for its enemies is unjust and must end. Strengthen it by naming the settlements the illegal and provocative enterprise they are and by demonstrating with dollars, not just words, our opposition to them. Once that is done, negotiations to make Israel’s borders permanent, with whatever mutually agreeable adjustments need to be made, alongside a Palestinian state become a much more realistic possibility.

'via Blog this'

Visa cuts ties with, joining MasterCard - LA Times makes its money on sex trade advertisements.  As Stephanie Silvano has written in the Fordham Law Review the publisher has been immunized by courts' broad understanding of the Communications Decency Act 47 USC 230. Stymied on the legal front, campaigners have won a major victory: Visa and Mastercard will no longer allow their sites to be used by Backpage customers. - gwc
Visa cuts ties with, joining MasterCard - LA Times
by Whip Villareal
Visa Inc. and MasterCard Inc. severed ties with after law enforcement officials raised concerns that the classified advertising website “promotes prostitution and facilitates online sex trafficking.”
According to a letter sent Monday to Visa and MasterCard by Cook County, Ill., Sheriff Thomas Dart, in just one month posted more than a million ads in its “adult escort” section in the United States, with most of the ads containing prices, hotel locations, nude photos and, in some instances, video.
Visa said it stopped allowing its cards to be used on the site Wednesday, following a similar move by MasterCard on Tuesday and by American Express Co. earlier this year. is the second-largest ad listing service on the Web, next to Craigslist.
The site for years has drawn the scrutiny of government and law enforcement officials who say the website makes it easy for pimps to exploit sex workers and fuels the illegal sex trafficking industry.

Tuesday, June 30, 2015

Mary Ann Glendon - Religious Freedom in Danger

Mary Ann Glendon's lament is a mystery to me.  I see nothing in my liberal family that remotely resembles what she is talking about.  I see her world view as upside down.  In my mind social conservatives eschew social responsibility.  Individual fulfillment is distorted by the profit motive which they celebrate.

Sexual morality is important - freedom to marry - or not, respect for women, acceptance of homosexuals, and planned parenthood are liberal values that seem to me to deserve to be championed.

As to the scourge of irresponsible fathers - that seems to me to be a consequence of the forces that drive down wages - among whom Glendon's Republican allies are prime movers. - gwc

The 2015 Cardinal Egan Lecture

Religious Freedom: Yesterday, Today and Tomorrow 

Mary Ann Glendon

Learned Hand Professor of Law at Harvard University, Former Ambassador of the United States to the Holy See
Member, United States Commission on International Religious Freedom

"At the heart of this turn to expressive individualism, of course, was a revolution in sexual mores, where the pursuit of individual self-fulfillment at all costs caused more and more people to fall away from churches that uphold rigorous standards of sexual morality. Like other revolutions, the sexual revolution had its
costs and casualties, some of which took time to come into view. With hindsight, though, it was the beginning of what George Weigel has aptly called a “long march through the institutions of American life, and through the public moral culture those institutions once embodied as well as sustained.” Those embattled institutions include three great mainstays of human well-being: the rule of law, the Church, and the marriage-based family."

And so it came to pass that the very period when some of us saw the civil rights movement as expanding the inclusiveness of what Rev. King called the Beloved Community, was actually a time when individual self-expression was about to become an overriding value. Five decades later, we can see the effects of this transformation in practically every aspect of life, including the appearance of a new public morality that turns the Judeo-Christian moral inheritance upside down, and that brooks no dissent from its rigid new dogmas.

We can also see that the zeal for maximizing individual self-fulfillment took its heaviest toll on the most defenseless. When one considers the epidemic of fatherlessness and the havoc wrought by abortion, it is hard to pretend that you can have freedom without responsibility, rights without duties, and sex without

Support Greece Against IMFAusterity Demands - Economics as Religion

Economics as Religion //AFL-CIO NOW
by William E. Spriggs

Yesterday and today, the world watches, slacked jawed at the endgame of the Greek government’s debt negotiations. The stakes are higher than many Americans understand. So far, the U.S. financial press has viewed this as isolated to the Eurozone. That is in large part because, having endured the Great Recession, there is a view that things are only bad if they threaten the “too big to fail” American banks that can create systemic risks for the U.S. financial sector. But, that view of the world that only bank stability matters is what is so incredulous.
The advanced economies have not recovered from the Great Recession. The United States has done by far the best, because of a very early and large stimulus package that stabilized the real economy—the one where people make things and earn income to buy things, and governments perform basic services. Europe turned quickly to reducing public debt and shrinking government, which has left its real economy with high unemployment and slow growth. And, its reticence to regulate their banking sector has many of its major banks still in poor condition. This stems from accepting the neo-liberal model that the universe revolves around the financial sector as religion. It is a theocracy, but of the most ancient, it is the transformation of the worship of the golden calf; but now money.
At the time of the 2008 financial crisis, various governments were in different positions. Spain’s government was running fiscal surpluses, and was very stable. Greece’s government faced some underlying challenges of rising debt and weak tax collection. These were two extremes of the spectrum. Like financial institutions, governments need a growing and strong real economy. So, both the Spanish and Greek governments ran into difficulty. But, the economy is a system, and strong real economies need financial institutions and governments.
The neo-liberal model dictated that everyone must rescue the financial sector, making what is a system that needs all parts to be healthy, into a machine that only needs an engine. But, a healthy financial sector without government or workers and consumers is an engine disconnected from the wheels and chassis: it will go nowhere. The corollary is that there are banks too big to fail, but governments are not. And, as we saw in the U.S. case, there were those willing to say, “and there are industries, like the American automobile industry, that are not too big to fail.”
The concessions that the International Monetary Fund and the European Commission are trying to force on Greece are steeped in this set of beliefs. The IMF and EC have pushed cuts in the Greek government, threatening its very ability to function, to deliver the basic services that are the chassis holding the economic vehicle together. Of course these cuts have not pushed the Greek economy ahead; instead the economy shrank 25% and unemployment is mired above 25%.
But, beyond fiscal austerity, the IMF and the EC insist that Greece cannot get on the right track unless it institutes “structural” reforms to its economy. Here, the IMF and EC mean creating an unfettered capitalist state. Greece must weaken its collective bargaining structures; lower its labor standards and wages, so that the Greek people must be forced to bow to the will of the market. This is borne of a view that the Greeks are profligates who must be taught the value of hard work and repay their debts. More importantly, this sacrifice of the Greek people is necessary to discourage people in Spain, Portugal and Ireland from staging similar revolts against the neo-liberal order demanding a different reconciling with the debt crisis.
This is religion, because the IMF’s own current research says that inequality hurts economic growth. And, further, it is the IMF’s own current research that says that unions, in particular, are vital to combating inequality. Taking actions based on faith in the unseen and not on empirical evidence is the definition of religion or superstition.
Similar mean-spirited thoughts guided post-World War I policies in dealing with Germany and its allies in handling the financial strain of the costs of that war. Fortunately, at the conclusion of World War II, it was felt that passions that fueled those decisions were not rational. A new set of institutions would be created to handle global government finances to insure the stability of governments, with a realization that at the end, it is the economy that must serve the people and their governments, not the other way around. One of those institutions, oddly, was the IMF.
In the U.S. we must take the side of Greece in this fight. It is in our interest, as the immediate problem of the instability this is causing is a rising dollar that will hurt U.S. exports and jobs. And, we can never be sure of the interrelated nature of financial collapses since so much of the banking sector remains in the shadows; with global derivatives trading at values greater than global output.
More importantly, we must also revolt against this economic order. It is the same order that saved JP Morgan Chase, but let Detroit and now Puerto Rico fail. It is the same religion that would sacrifice the earnings of American students with rising student debt and de-invest in public higher education. It is the same religion that would sacrifice American jobs and labor standards and back the Trans-Pacific Partnership. We must see these as the same struggle to restore sanity and purpose to role of government and its servant, the economy.
And, most importantly, we must remember the lesson of World War I. We cannot predict what the response of people will be to austerity. It is every bit as likely to bring about hostility that is not rational. It might inspire little minds to unimaginable evil. 

Supreme Court ( 5-4) Strikes EPA Power Plant Regs

Michigan v. EPA - Supreme Court Strikes Green House Gas Regs as Irrational

Judicial modesty is a virtue embraced principally in dissent, it seems.  Congress directed the EPA to study the problem of power plant emissions, a major source of pollution because coal burns inefficiently.  The EPA is an agency with substantial scientific expertise.  But, according to the Supreme Court's conservative majority the EPA irrationally failed to consider costs in its calculus.

In the minority's view Justice Scalia's opinion is a dressed up version of the usual talk show laments  - EPA out of control, etc.  The four dissenters, speaking through Justice Elena Kagan, declare:
Despite that exhaustive consideration of costs, the Court strikes down EPA’s rule on the ground that the Agency “unreasonably . . . deemed cost irrelevant.”  On the majority’s theory, the rule is invalid because EPA did not explicitly analyze costs at the very first stage of the regulatory process, when making its “appropriate and necessary” finding. And that is so even though EPA later took costs into account again and again and . . . so on. The majority thinks entirely immaterial, and so entirely ignores, all the subsequent times and ways EPA considered costs in deciding what any regulation would look like. That is a peculiarly blinkered way for a court to assess the lawfulness of an agency’s rulemaking. I agree with the majority—let there be no doubt about this—that EPA’s power plant regulation would be unreasonable if “[t]he Agency gave cost no thought at all.”   But that is just not what happened here.

Monday, June 29, 2015

President Obama's Eulogy for Rev. Clementa Pinckney |

 Remarks by the President in Eulogy for the Honorable Reverend Clementa Pinckney |
by Barack Obama, June 26, 2015
***Over the course of centuries, black churches served as “hush harbors” where slaves could worship in safety; praise houses where their free descendants could gather and shout hallelujah -- (applause) -- rest stops for the weary along the Underground Railroad; bunkers for the foot soldiers of the Civil Rights Movement.  They have been, and continue to be, community centers where we organize for jobs and justice; places of scholarship and network; places where children are loved and fed and kept out of harm’s way, and told that they are beautiful and smart -- (applause) -- and taught that they matter.  (Applause.)  That’s what happens in church.  
That’s what the black church means.  Our beating heart.  The place where our dignity as a people is inviolate.  When there’s no better example of this tradition than Mother Emanuel -- (applause) -- a church built by blacks seeking liberty, burned to the ground because its founder sought to end slavery, only to rise up again, a Phoenix from these ashes.  (Applause.) 
When there were laws banning all-black church gatherings, services happened here anyway, in defiance of unjust laws.  When there was a righteous movement to dismantle Jim Crow, Dr. Martin Luther King, Jr. preached from its pulpit, and marches began from its steps.  A sacred place, this church.  Not just for blacks, not just for Christians, but for every American who cares about the steady expansion -- (applause) -- of human rights and human dignity in this country; a foundation stone for liberty and justice for all.  That’s what the church meant.  (Applause.)   
We do not know whether the killer of Reverend Pinckney and eight others knew all of this history.  But he surely sensed the meaning of his violent act.  It was an act that drew on a long history of bombs and arson and shots fired at churches, not random, but as a means of control, a way to terrorize and oppress.  (Applause.)  An act that he imagined would incite fear and recrimination; violence and suspicion.  An act that he presumed would deepen divisions that trace back to our nation’s original sin.
Oh, but God works in mysterious ways.  (Applause.)  God has different ideas.  (Applause.)  
He didn’t know he was being used by God.  (Applause.)  Blinded by hatred, the alleged killer could not see the grace surrounding Reverend Pinckney and that Bible study group -- the light of love that shone as they opened the church doors and invited a stranger to join in their prayer circle.  The alleged killer could have never anticipated the way the families of the fallen would respond when they saw him in court -- in the midst of unspeakable grief, with words of forgiveness.  He couldn’t imagine that.  (Applause.)  
The alleged killer could not imagine how the city of Charleston, under the good and wise leadership of Mayor Riley -- (applause) -- how the state of South Carolina, how the United States of America would respond -- not merely with revulsion at his evil act, but with big-hearted generosity and, more importantly, with a thoughtful introspection and self-examination that we so rarely see in public life.
Blinded by hatred, he failed to comprehend what Reverend Pinckney so well understood -- the power of God’s grace.  (Applause.)  ***

Friday, June 26, 2015

Disparate ImpactHousing Litigation Survives Supreme Court Challenge : SCOTUSblog

Torts Today: Disparate ImpactHousing Litigation Survives Supreme Court Challenge : SCOTUSblog
We dodged another bullet today in the Texas Fair Housing Act case.  Writing for the 5-4 majority Justice Anthony Kennedy held to his very formalistic view of racial discrimination but found his way to the plaintiffs side.  Generally only intentional race-based choices satisfy him as improper.  He allows for some flexibility but is deeply skeptical otherwise, as Lyle Denniston notes at Scotusblog But today the weight of precedent put in his hands the swing vote that allowed "disparate impact" cases to survive.  He frames the issue thus:

In contrast to a disparate-treatment case, where a
“plaintiff must establish that the defendant had a discriminatory
intent or motive,” a plaintiff bringing a disparate impact
claim challenges practices that have a “disproportionately
adverse effect on minorities” and are otherwise
unjustified by a legitimate rationale. Ricci v. DeStefano,
557 U. S. 557, 577 (2009) ... The question presented for the Court’s determination
is whether disparate-impact claims are cognizable
under the Fair Housing Act (or FHA) 42 U. S. C. §3601 et seq. 
Important is his recognition of the weight of history (documented by the Innovative Communities Project amicus brief) legal segregation, white flight, and the redlining of places like the one I grew up in - the archetypal suburb Levittown where unenforceable covenants to sell only to "Caucasians" were in every deed:
De jure residential segregation by race was declared
unconstitutional almost a century ago, Buchanan v. Warley,
245 U. S. 60 (1917), but its vestiges remain today,
intertwined with the country’s economic and social life.
Some segregated housing patterns can be traced to conditions
that arose in the mid-20th century. Rapid urbanization,
concomitant with the rise of suburban developments
accessible by car, led many white families to leave the
inner cities. This often left minority families concentrated
in the center of the Nation’s cities. During this time,
various practices were followed, sometimes with governmental
support, to encourage and maintain the separation  of the races. 
Valerie Schneider offers a first look at today's decision. - gwc

Symposium: The sweetness of the status quo: The Court upholds over forty years of precedent : SCOTUSblog

Thursday, June 25, 2015

Supreme Court Allows Nationwide Health Care Subsidies - The New York Times

Prof. Julius Cohen taught Legislation in my first semester in law school.  Surprisingly the subject went into disfavor in later years, only to be revived recently.  We learned canons of construction.  Among the first was to construe a law not literally but so as to effectuate the legislators' intent.  That rule had its origins in the seventeenth century when the Parliament raised the New Model Army and went to war against the Royalists, culminating in parliamentary supremacy with the Glorious Revolution of 1688.
Our Constitution sought to diffuse power, creating an often dysfunctional system.  In the 1930's the Supreme Court found in Congress's power to regulate commerce among the states the  power to overcome the small government view of federalism that James Madison and the much overrated Thomas Jefferson heralded.  Babbit-like resentment of the costs imposed by federal regulation have been a cornerstone of modern conservatism.  It has led them to embrace state's rights and a sharply limited view of the Supreme Court's powers.  But as conservative ideological preeminence grew in the past forty five years the denunciation of "judicial activism" became a ritual cry but not an operating principal.

When the Affordable Care Act became law conservatives saw an opportunity to undermine the commerce clause jurisprudence which is the jurisprudential foundation of the modern regulatory state.  In 2011 they came very close to a win in Sebelius v. National Federation of Independent Businesses.  Five justices, including the Chief Justice,concluded that the ACA was not authorized under the commerce clause.  "Obamacare" was saved by C.J. John Roberts opinion that the tax power authorized the insurance requirement.

When King v. Burwell was accepted by the Supreme Court the entire legislative structure was put at risk - over what appeared to be a drafting error.  But there is little more appealing to a lawyer than the words of a statute.  And here the words called for an "exchange established by the State" as the portal through which federal health insurance tax credit subsidies would be allocated.  The justices faced the question: what will prevail: the words of the provision or an expansive, saving construction of the entire Act, whose sprawling 2000 pages sent a general message that Congress's intent was to subsidize health insurance for low and moderate wage earners.   The dilemma for (it proved) Justices Roberts and Kennedy was that construction of the phrase in context meant a green light for a law the structure of which was unconstitutional, in their view.  Construing Congressional intent requires discipline of the judge because today's Congress is led by men who have voted dozens of times to repeal the entire ACA.
Such a choice is inevitably driven by the jurist's view of the desirable outcome.  But that view is a broad one.  There are competing canons of construction: the literal approach and the overall purpose approach.  A judge may consider  the impact of a decision, not just adherence to the canon of construction that one must be bound by the words of the statute.  Searching for implied intent is an invitation to abandon the words, and seek one's own preferred meaning.  In Justice Scalia's view that is what the majority has done. The ACA should be called "Scotuscare" now he cried.  Antonin Scalia certainly knows how to coin a word.  But his ability to govern is suspect.  The wisdom of the King V. Burwell majority's ruling in my view is that deference to legislation requires recognition of drafting failures, and an appreciation that a major regulatory measure like the ACA creates new classes of expectations - such as the expectation of millions that their health insurance will continue to be made affordable thanks to public largess.  - gwc

Supreme Court Allows Nationwide Health Care Subsidies - The New York Times
by Adam Liptak
The question in the case, King v. Burwell, No. 14-114, was what to make of a phrase in the law that seems to say the subsidies are available only to people buying insurance on “an exchange established by the state.”

Continue reading the main story


Supreme Court Decision on Health Care Subsidies

The Supreme Court ruled that President Obama’s health care law may provide nationwide tax subsidies to help poor and middle-class people buy health insurance.

Chief Justice Roberts wrote that the words must be understood as part of a larger statutory plan.
“In this instance,” he wrote, “the context and structure of the act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.”
“Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” he added. “If at all possible, we must interpret the act in a way that is consistent with the former, and avoids the latter.”