Friday, February 5, 2016

ABA Resolution Stirs Fears of Non-Lawyer Firm Ownership - Law Blog - WSJ

An ABA report and resolution scheduled for debate this week is opening the door to non-lawyer ownership of law firms.  Will there be McLaw firms? WalLawMart?
ABA Resolution Stirs Fears of Non-Lawyer Firm Ownership - Law Blog - WSJ
by Jacob Gershman // Wall Street Journal
A proposed resolution working its way up the American Bar Association sounds innocuous enough, if not completely decipherable.
It calls for the adoption of “regulatory objectives for the provision of legal services” that would help “identify and implement regulations related to legal services beyond the traditional regulation of the legal profession.”
But those words are stirring alarm among some local bar groups, which say it poses a grave threat to their profession.
How’s that you may ask?
The context surrounding the controversy is the long-simmering debate among the legal establishment over allowing non-lawyers to own stakes in law firms.
With the exception of the District of Columbia, no jurisdiction in the country permits non-lawyer ownership of law firms. Those who favor lifting the restriction say it would expand consumers’ access to legal services, spur innovation and reduce the cost of legal help.
But whenever the idea has been floated within the ABA, it’s gotten strong push-back. Giving people who don’t have a law license the ability to share firm profits would undermine the profession’s ethical obligations of client loyalty and confidentiality, critics argue. They fear that decision-making within firms would be influenced by investors or shareholders who aren’t bound by the same rules of conduct as licensed lawyers.
The tensions around the issue reflect a broader concern within the industry over emerging competitive threats from do-it-yourself legal services, outsourcing and new technology.
So it’s against that backdrop that the ABA’s Commission on the Future of Legal Services has proposed that “regulatory objectives” resolution. The commission says it’s trying to develop a guide that local bar authorities could use “when they assess their existing regulatory framework and any other regulations they may choose to develop concerning non-traditional legal service providers.”

A Quick Take on Tonight's Debate // Josh Marshall // Talking Points Memo

I have often in litigation and politics taken the pole position - establishing a maximum position while recognizing that compromise was in the offing.

But my basic rule of thumb was that I wanted to reach agreement - a reasonable agreement. In the peace movement I made myself knowledgeable about the arms control agreements. I campaigned for arms control, not nuclear disarmament. That put me in the Mondale camp in 1984 when I was on the Democratic National Platform Committee.

Occasionally I went to trial -when there was no reasonable offer on the table. Sometimes that led to big wins. And sometimes to big losses. As a general rule I saw the value of the bird in hand and was loathe to put a decent offer at risk. That is how I feel about the Affordable Care Act. It's not the National Health Service or the Scandinavian system I would prefer. But I don't want to put the ACA's gains at risk for taking a long shot chance on a single-payer system that looks unachievable to me unless we somehow dislodged the GOP House majority.

That said, I see it the way Josh Marshall sees it here. - GWC

A Quick Take on Tonight's Debate -
by Josh Marshall //Talking Points Memo

I think we have two basic questions coming out of this debate - vision for the Democratic party and electability. Nor are these questions distinct. The issue of electability goes to the heart of the vision for the party, since it goes to the root of questions about pragmatism, risk aversion, settling for half or quarter loaves or ending up with nothing. After several of these encounters - after last night and tonight - these basic questions, dividing points seem very clear and well illustrated.

Thursday, February 4, 2016

Oregon Refuge Occupiers Facing 6 Years in Federal Prison

Refuge Banner Image
The Malheur National Wildlife Refuge - Oregon
is maintained by the U.S. Fish and Wildlife Service 
Ammon Bundy - crackpot patriot

Ammon Bundy and other leaders of the occupation of the Malheur National Wildlife Refuge occupation have been indicted, along with the holdouts still in the Oregon federal Refuge.   The armed men spouting crackpot constitutional law have conspired to obstruct people who want to go to the visitor center on bird watching or nature hike expeditions.   The government could well decide to issue a superseding indictment under the Ku Klux Klan Act, 18 USC 241.  But for now the Department of Justice is keeping it simple.  The indictment is limited to 18 U.S. Code § 372 - Conspiracy to impede or injure officer:

Current through Pub. L. 114-38. (See Public Laws for the current Congress.)
prev | next
If two or more persons in any State, Territory, Possession, or District conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof, or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.

Wednesday, February 3, 2016

D.C. District Court Proposes New Rules on Prosecutors Disclosure Obligations

The United States District Court for the District of Columbia has released a proposed rule which would codify the government's discovery obligation set out by the Supreme Court. Most significantly, it imposes specific timelines on prosecutors and defines for the first time what constitutes "favorable information" under the U.S. Supreme Court's landmark 1963 decision in Brady v. Maryland the Court there declared that prosecutors have a constitutional obligation to provide the defense with "evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment." The failure by a prosecutor to disclose appropriate information is often referred to as a "Brady violation."
In recent years the importance of the rule has been highlighted by the Innocence Project, and the recognition by some - such as former Louisiana Supreme Court Chief Justice Pascal F. Calogero, Jr., who declared that systemic difficulties - including lack of guidance - help to explain the "Brady violations" that underlie some wrongful convictions. - gwc

Tuesday, February 2, 2016

Sarah Palin’s English - The New York Times

Sarah Palin introducing Donald Trump at a campaign event Monday in Iowa.
Quite the rhetorician, Sarah Palin.  It reminds Anna North of ancient Roman trash talk.  One might say to her and to Trump what Cicero said to the conspirator Lucius Catilina in the Senate of the ancient Roman Republic:

"When, O Catiline, do you mean to cease abusing our patience? How long is that madness of yours still to mock us? When is there to be an end of that unbridled audacity of yours, swaggering about as it does now?"
 Marcus Tullius Cicero - First Oration against Lucius Catilina

Sarah Palin’s English - The New York Times
by Anna North

Sarah Palin has been mocked a lot for the way she talks, especially in her strange and rambling endorsement speech for Donald Trump. But her speeches on the campaign trail aren’t simple; they are actually incredibly complicated.
Her unusual style was on display at a Trump rally on Monday afternoon in Cedar Rapids, Iowa. “When both parties, the machines involved, when both of them hate you,” she said at one point, “then you know America loves you and we do love he who will be the next president of the United States of America, Donald J. Trump!”
Let’s break that last part down: “We” love not just Donald Trump, or even just Donald J. Trump, but “he who will be the next president of the United States of America.”
Mrs. Palin relies heavily on this particular kind of dependent clause. “He is one who would know to negotiate,” she said of Donald Trump in her speech endorsing him on Jan. 19. Later in that speech, she spoke of “our own G.O.P. machine, the establishment, they who would assemble the political landscape.”
Mrs. Palin is also a big fan of the participial phrase. “And that blank check too,” she said on Monday, “making no sense because it’s led us to things, oh gosh, to pay the bills then, we have had to uh, print money out of thin air.”
keep reading

Mayeux on "What Gideon Did" - forthcoming - Columbia Law Review

Legal History Blog: Mayeux on "What Gideon Did"
Sara Mayeux, Sharswood Fellow, University of Pennsylvania Law School, has posted WhatGideon Did, which is to appear in the Columbia Law Review 116 (2016):

Clarence Earl Gideon (DOJ)
Many accounts ofGideon v. Wainwright’s legacy focus on whatGideon did not do — its doctrinal and practical limits. For constitutional theorists, Gideonimposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideondid — the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on indigent defense away from a charity model toward a public model. By 1973, this new consensus had transformed criminal practice nationwide through the establishment of hundreds of public defender offices and the expansion of lawyers’ presence in low-level criminal proceedings. This Article describes these changes primarily through the example of Massachusetts, while contextualizing that example with national comparisons.....

Oyez - Supreme Court Archive May Shut Down // National Law Journal

The Oyez Project - a Supreme Court Archive which features oral arguments before the United States Supreme Court - is a civics resource relied on by many teachers - including me.  Political scientist Jerry Goldman was inspired by my grad school classmate, lawyer/historian Peter Irons.  The star protege of left wing historian Howard Zinn, Irons, a draft resister as a young man, secretly copied the tapes, infuriating Chief Justice William Rehnquist.  Irons' edited Supreme Court transcripts and audio were published as the popular May It Please the Court, used in many classrooms, and a popular gift for lawyer moms and dads, and law student children. 
One would hope that Google or the like would want to fund the project in the future. - gwc

Its Creator Retiring, Oyez Project Faces Uncertain Future
by Tony Mauro //National Law Journal
February 1, 2016

The Oyez Project, a widely used resource for the audio of U.S. Supreme Court oral arguments and other information about the court, is facing an uncertain future.
Launched in 1993, the site boasts nearly 9 million visits a years, ranging from high school students to Supreme Court practitioners prepping for appearances at the lectern.
With founder Jerry Goldman planning to retire in May, and its arrangement with Chicago-Kent College of Law set to expire, Goldman said he worries the site may wither away or shut down later this year.
“The human side of the institution, the sense of the men and women who sit on the bench—their voices would be silenced,” said Goldman, 70.
The site houses the audio from nearly every high court case argued since the court began taping arguments in October 1955—a handful have been lost or the sound quality was terrible—as well as transcripts that are searchable and synchronized with the audio. The audio is supplied by the National Archives, where the court lodges the tapes after the end of each term.
Goldman is looking for nonprofit institutions or a consortium of organizations and universities to keep the site running, at an annual cost of about $300,000. He also said he sees opportunities for expansion, to provide the public with audio and information about state supreme courts and federal appeals courts.
Jerry Goldman.
Jerry Goldman.
Even if the U.S. Supreme Court announced tomorrow that it would start streaming its arguments online, Oyez would still be necessary, Goldman asserts. That is because it contains landmark arguments ranging from Roe v. Wade to Miranda v. Arizona, and adds explanatory material to each argument.
“The mere fact that you have audio doesn’t mean much if you can’t wrap information around it,” Goldman said. The page for most cases also includes the audio of the decision in the case being announced. Other features include panoramic views of several parts of the court building, and short biographies of every justice.
“If you want to find the time that Justice Scalia used the word broccoli, you can do that in a few seconds,” Goldman said. (In March 2012, Scalia compared the individual mandate in the Affordable Care Act to a government order for consumers to buy broccoli.)
Harold Krent, dean of Chicago-Kent, which hosted Oyez for the past five years, called the site a “unique resource” that “humanizes the Supreme Court.”
Deferring to Goldman about the future of the site, Krent said he hopes his school can remain involved in helping to keep Oyez alive.
One problem, Krent said—and Goldman agreed—is the difficulty of placing a monetary value on the site. They both believe Oyez should be freely available to the public, without a pay wall or advertising. The high court itself has posted oral argument audio going back to 2010, with transcripts on a separate page going back to 2000.
Goldman, who taught political science at Northwestern University before moving with Oyez to Chicago-Kent in 2011, got the idea for posting Supreme Court audio from the controversy over another political scientist, Peter Irons. Irons used Supreme Court audio obtained from the National Archives for a book. Chief Justice William Rehnquist threatened to sue Irons, but eventually backed off, allowing wide use of the tapes.
Goldman said the audio project opened up a new world for Supreme Court scholars and aficionados. Some of the tapes contained quiet chatter among justices who did not turn off their microphones. On other tapes, the sounds of angry protesters can be heard.

Read more:

Due Process for Central American Refugees? //ImmigrationProf Blog

ImmigrationProf Blog

Philip E. Wolgin for the Center for American Progress has a new column that considers major due process failings in the process surrounding the removal process of asylum-seekers arrested in recent the raids of Central American mothers and children and offeres a look at what adequate due process would look like:
First and foremost, everyone seeking protection should be given information about their rights as asylum seekers as soon as possible after being put in removal proceedings. The Vera Institute of Justice’s Legal Orientation Program, which provides people with information about their rights and the deportation process and refers immigrants particularly in need of counsel to pro bono attorneys, is one good model. The government should make very effort to ensure that each asylum seeker is matched with a pro bono attorney or is represented by a competent nongovernmental organization, and no child should face court proceedings without a lawyer.
Second, no person who seeks asylum in the United States should be rushed to deportation. All those picked up in a raid, for example, should have their cases reviewed by a competent attorney to ensure that they have truly exhausted all of their legal options for protection.
Finally, Congress must provide adequate resources to allow immigration courts the time to fully consider each and every asylum case. On average, it takes 660 days for a case to be heard in the immigration courts. The average immigration judge handles more than 1,500 cases per year—nearly four times more than a federal District Court judge. Given the crushing caseload and potentially fatal consequences of deportation, National Association of Immigration Judges President Dana Leigh Marks likened immigration hearings to “death penalty cases heard in traffic court settings.”

Monday, February 1, 2016

Iowa Caucuses Give GOP a Chance to Right Ship

Cruz 27, Trump 24, Rubio 23
My take:
Rubio's surge brings the end of the clown show near. The Governors will soon be gone, and we'll be left with Cruz who is so dislikable that he's unelectable and the loser Trump who -though he conceded "manfully" - will be graceless in defeat, and is unacceptable even to Fox News. So the GOP moneybags will now declare Rubio the last hope and he'll become the nominee.
Sanders strong showing will make a horse race of it for a while. His supporters will be energized and hopeful. I hope they'll turn out for Hillary when she faces off against Rubio in November. He'll be formidable.  He was poor, played football, went to law school, is goodlooking, married a cheerleader and talks the GOP talk in a disciplined way. - GWC

Former diocesan leader alleges Muller thwarted investigation of choir boy abuse - National Catholic Reporter

Former diocesan leader alleges Muller thwarted investigation of choir boy abuse - National Catholic Reporter
Christa Pongratz-Lippitt

A former chairman of the lay diocesan council in Regensburg, Germany, has alleged that Vatican Cardinal Gerhard Müller "systematically" prevented the investigation of abuse in Germany's famous "Regensburger Domspatzen" boys' choir during his time as bishop of Regensburg.

The allegations against Müller, who is now the prefect of the Congregation for the Doctrine of the Faith, coincided with 60 further alleged abuse victims coming forward since Ulrich Weber, an independent lawyer, published an interim report in January which showed that three times as many boys had been abused between 1953 and 1992 than reported by the diocese.

"My impartiality as an independent lawyer is the reason why more alleged victims now want to consult me. They feel that I will listen to them," Weber, who was commissioned by the Regensburg diocese to further investigate the abuse at the choir boys school, told

In a long interview in the German weekly Die Zeit, former chairman Fritz Wallner described how Müller, who was bishop of Regensburg from 2002-2012, and his vicar-general, Fr. Michael Fuchs, "systematically" prevented abuse cases from being investigated and calls for Fuchs, who is still vicar-general of Regensburg, to step down.

In 2005, Müller disbanded the lay diocesan council, Wallner said, "as he wanted to hold the reins firmly in his own hands and that proved fatal for inner-church investigation of abuse."

The False Lure of the Sanders Single-Payer Plan

The False Lure of the Sanders Single-Payer Plan

by Paul Starr (Princeton University)

Wouldn’t it be great if we could just go to the doctor and not pay any bills? After all, isn’t that what they do in other countries, and don’t those countries have lower health-care costs than the United States does? And aren’t private insurance companies the only reason we don’t have that kind of system?

This is the appeal of the Bernie Sanders single-payer health plan. Free health care, with none of the frustrating paperwork of today’s insurance, and with taxes that cost less than insurance premiums—what could be better than that? Of course, the single payer in the Sanders plan is the federal government, which implies concentrating payment and therefore power over health care in Washington. But, at least in this area, many Democrats don’t seem worried about that prospect.

Sanders doesn’t just call for incremental steps toward single-payer. He’s proposing to shift all of health care to federal taxes in one fell swoop. That’s one reason for the enormous, sudden increase in taxes the plan would require—$1.38 trillion on top of existing federal spending, according to Sanders’ own estimates. As Harold Pollack has pointed out, that $1.38 trillion is just about equal to total federal income and estate tax collections in 2014—in other words, the plan would require doubling that revenue. Sanders insists that he’s shown how he would pay for it through a 6.2 increase in payroll taxes (which he calls an “income-based premium paid by employers,” though the cost will fall on employees); a 2.2 percent increase in income taxes on everyone; higher estate taxes; taxing capital gains and interest as ordinary income; limiting tax deductions for the rich; and higher income-tax rates on the upper brackets (which, combined with other increased taxes he’s also calling for, would bring the top marginal federal rate to 77 percent, as Dylan Matthews shows at Vox).

But Sanders’s estimate of the needed increase in taxation, despite its whopping size, is too low. The plan would actually cost another $1.1 trillion a year, according to an analysis by Kenneth Thorpe, a health-care economist at Emory University, who has long experience working with single-payer proponents. In 2006, the Vermont legislature hired Thorpe to cost out a single-payer proposal, and in 2014 progressive legislators in Vermont hired him again. So this is not an estimate from an economist generally opposed to universal health care or to single-payer. Thorpe’s estimates indicate that workers would have to pay an additional 20 percent of compensation to pay for Sanders’s plan.

At Vox, Matthews has probed both Thorpe and the Sanders campaign on some of the specific areas where their numbers diverge. Here’s one stunning detail: When the Sanders campaign released its plan, it estimated $324 billion in annual savings on prescription drugs—until Thorpe noted that the United States spent only $305 billion for that purpose in 2014. (If Trump can expect Mexico to pay for a wall on the border, I suppose Sanders can expect drug companies to pay consumers instead of the other way around.) When Matthews pointed out that it was impossible to save $324 billion out of $305 billion, the Sanders camp cut their savings estimate to $241 billion, while conveniently increasing other projected savings to make up the difference. But $241 billion in drug savings are still implausible, and as the entire episode indicates, the Sanders campaign is simply pulling numbers out of the air.

Sunday, January 31, 2016

How GM ignition-switch plaintiffs' lawyer botched his big case

Six bellwether trials were scheduled in the GM ignition key defect cases.  The first was a catastrophe for the plaintiffs. Another plaintiff's lawyer has moved to remove the lead attorney from the cases. - gwc
How GM ignition-switch plaintiffs' lawyer botched his big case
NEW YORK/DETROIT (Bloomberg) -- When Robert Kleven switched on the news for his drive to work two weeks ago, he had no idea he was about to sink a high-profile lawsuit against General Motors and embarrass one of the best-known plaintiffs’ lawyers in the U.S.
The news anchor described a long-awaited trial starting in U.S. District Court in Manhattan that day, the first over a deadly defect in millions of GM ignition switches. The plaintiff was a 49-year-old postman named Robert Scheuer. Kleven, a real estate agent in Tulsa, Okla., knew that name. Two years earlier, he said in an interview, Scheuer had pulled a fast one on him.
Scheuer had altered a government check stub to make it look like he had hundreds of thousands of dollars in the bank, Kleven said. On the strength of that stub, Kleven had let Scheuer and his wife, Lisa, move in to a new house in suburban Tulsa before they had paid for it. He had to evict them and their two daughters, he said, when he learned that Robert Scheuer had added a “441” to the $430.72 stub to turn it into a deposit of $441,430.72.
So Kleven called GM.
“I didn’t want them getting away with another scam,” the 43-year-old agent with Concept Builders Inc. said.
The couple went on to testify under oath that injuries Robert sustained in a May 2014 wreck in their Saturn Ion had led to the eviction from their “dream house.” GM accused them of perjury. The Scheuers dropped their lawsuit less than halfway through the trial, without getting a penny from GM.

The end of normalcy for Israeli settlements? | +972 Magazine

The end of normalcy for Israeli settlements? | +972 Magazine
by Michael Schaeffer Omer-Man
The United States appears to be following the European Union in taking symbolic steps to challenge the aura of normalcy with which Israel has cloaked its settlement enterprise for decades.
United States Customs officials published a notice last week clarifying that U.S. law does not permit goods manufactured in the West Bank, including in Israeli settlements, to be labeled as “made in Israel.”
The regulation is over 20 years old and the notice is just a reminder, the U.S. was quick to point out to journalists who scrambled to draw parallels to the European Union’s settlement labeling guidelines published late last year.
And while there are some significant differences between the two regulations regarding settlement products, primarily that under EU rules settlement goods are ineligible for duty free import, the message is the same.
Israel has never annexed the West Bank (save for East Jerusalem) and no country has ever recognized Israeli claims to the West Bank, East Jerusalem, the Gaza Strip or Golan Heights. Over the past two decades, however, under the cover of various peace processes, the number of Israelis living on occupied land has swelled and swelled to well past 500,000 settlers.

Lawyers moving money // Undercover in New York //Global witness

Global Witness' investigation will air on CBS 60 Minutes on 31 January
The Global Witness investigation was featured on 60 Minutes tonight.

Undercover in New York  Global Witness
This investigation was covered in the New York Times.

We all know what it feels like to get ripped off or scammed. But we know less about the tools the criminals use to get away with their illicit activities.

Global Witness has previously looked at a whole range of crimes, and found they all had one thing in common. They were all carried out by anonymous company owners, who are able to skirt U.S. laws and launder money through our financial system. If these sham companies did not exist, those crimes would be far harder to commit.

Anonymous companies do great damage to society. Warlords and dictators use them to steal from their people and stash the loot in places like the U.S. A violent Mexican drug cartel called the Zetas used American companies to launder its profits.The Iranian government has used them to evade sanctions. Credit card scammers, mobsters, tax evaders and other criminals routinely use them to rip off innocent citizens or threaten U.S. interests and get away with it.

The crazy thing is, these companies are often set up in the U.S. - it is one of the easiest places in the world to do this legally.

Global Witness' investigation aired on CBS 60 Minutes on 31 January -click here to watch

To prove our point, we went undercover and approached 13 New York law firms. We deliberately posed as someone designed to raise red flags for money laundering.

We said we were advising an African minister who had accumulated millions of dollars, and we wanted to buy a Gulfstream Jet, a brownstone and a yacht. We said we needed to get the money into the U.S. without detection.

To be clear, the meetings with the lawyers were all preliminary. None of the law firms took our investigator on as a client, and no money was moved.

Nonetheless, the results were shocking; all but one of the the lawyers had suggestions on how to move the funds. To see what some of them said, watch the videos below:

First Things First | Cathleen Kaveny - Commonweal Magazine

Prof. Cathleen Kaveny debunks the uber conservatives who populate the journal and website First Things and the generally insufferable Catholic blog Mirror of Justice. They are all discomfited by Pope Francis who they see as a softy, gurgling platitudes rather than holding the harsh doctrinal lines defined by Cardinal Joseph Ratzinger who followed his stint as Inquisitor with eight years as Pope Benedict XVI.

She takes aim at Fr. Richard Neuhaus the architect of the movement which laments same sex marriage, inveighs against abortion, and Democrats:
...they also urged bishops to present Catholic teaching in a way that distorted key concepts and divided the Body of Christ. The most egregious of their strategies was to present the thought of Pope John Paul II in stark, dualistic terms—which led them to celebrate Republican Catholics as warriors for the culture of life and to castigate Catholics who voted for the Democrats as minions of the culture of death. But a culture isn’t reducible to a political party. And building a culture of life required far more than opposition to abortion—it also required care for the vulnerable. No American political party is the party of saints.
First Things First | Commonweal Magazine
by Cathleen Kaveny (Professor of Law and Theology - Boston College)

Some conservative Catholics have blamed Pope Francis for sowing division among the members of the Body of Christ. But the charge is more properly lodged against one of the heroes of conservative Catholicism: the late Richard John Neuhaus.

It was Neuhaus, after all, who advanced the view that conservative Roman Catholics have more in common with orthodox Jews and Evangelical Protestants than they do with progressive members of their own religious communities. In fact, that view was an operational premise of First Things magazine under his leadership. This approach is based on a thoroughly distorted view of religious realities and commitments.

Does honoring Jesus as the Son of God count as a commonality? Like their conservative counterparts, progressive Roman Catholics acknowledge the divinity of Jesus Christ, and find the interpretive key to the Hebrew Bible in the New Testament. Orthodox Jews do not—indeed, must not—treat Jesus as the Messiah foretold in the Book of Isaiah. It would be blasphemous for them to do so.

Does living in the grace imparted by the sacraments count as a commonality? Both progressive and conservative Roman Catholics believe that God’s grace is channeled through the seven sacraments. Many Evangelical Protestants do not have the same view of grace or the sacraments; they often view the Eucharist as a memorial of a past event, not a way of being present with Christ here and now.

Moreover, the Catholic sacramental imagination nurtures what is often called a Catholic sensibility—which includes a more positive view of the relationship between created nature, human culture, and redemption than many Evangelical Protestants would allow. Both progressive and conservative Catholics tend to be sensitive to the goodness of all of God’s creation—despite the grave wound of sin. It is this foundational anthropological belief that accounts for the relative hopefulness of the Catholic tradition. Catholics believe that in our common political life we can achieve real good, and not merely restrain evil-doing. And while they may differ about what counts as “good” in some details, both conservative and progressive Catholics operate out of that more positive view of political life.

Neuhaus’s defenders might say that he was concerned with commonalities among conservative Christians and Jews on hot-button issues: the ordination of women, contraception, same-sex marriage, and abortion. But how deep are those commonalities? Many Evangelical Protestants, for example, believe that women should never exercise authority over men, especially but not exclusively in an ecclesiastical context. But the Catholic Church officially and vehemently denies that its exclusion of women from the priesthood is based on their inferiority to men—and points to the centuries old tradition of powerful, independent women religious as evidence. Orthodox Jews may oppose abortion—but not because they believe the fetus is an equally protectable human being. Under Jewish law, full protection for a new human person is triggered at birth. But in Catholic circles debates about abortion are usually about when a human life comes into being biologically.

Ultimately, Neuhaus’s focus was on nurturing these commonalities in the American political context—he was building a political movement. For a variety of partially overlapping reasons, conservative Roman Catholics, Evangelical Protestants, and orthodox Jews were inclined to vote Republican in political elections. Along with George Weigel and Robert George, Neuhaus coached Republican politicians in Catholic-speak to win national elections.
Keep reading

The legislative campaign to support Israeli Settlements

Saturday, January 30, 2016

The Best Law Schools Are Attracting Fewer Students // Bloomberg Business

The Best Law Schools Are Attracting Fewer Students - Bloomberg Business
by Natalie Kittroef
In 2010, Sarah Zearfoss, director of admissions at the University of Michigan's law school, got a tip from an employee that she simply could not ignore. It was just two years after the housing crisis, and Zearfoss and her staff were concerned about the increasingly bleak job market for new lawyers. The advice, she thought, might help: Shrink the school.
“The single best thing we could do to help our students is to make the class size smaller,” Zearfoss said.
She began to set the plan in motion. Since 2011, Michigan Law, considered one of the country's top law schools, has cut its first-year class by 26 percent. The number of applicants to the school fell 20 percent over that period, according to data from the American Bar Association.
Michigan Law is not the only elite law school to experience such a stark contraction. As applications plunge, especially from the very best students, a growing number of highly regarded law schools are slashing class sizes. The crisis in legal education, once confined to the lower tier (schools ranked below 50 by U.S. News and World Report), has hit the upper echelon.

The Rebel Soldier Who Became Chief Justice of the United States: The Civil War and Its Legacy for Edward Douglass White of Louisiana by Andrew Kent :: SSRN


Andrew Kent, in a forthcoming issue of the American Journal of Legal History, has resurrected the little remembered personality and jurisprudence of Edward D. White, Jr., a Louisianan, Confederate soldier, Redeemer politician, and Chief Justice of the United States.  A relentless researcher, Fordham law professor Kent has exhaustively detailed and assessed the sketchy and diffuse records of White’s youthful role as a Confederate loyalist and soldier.  Kent probes the mystery of how White, the son of a plantation owner, Congressman and Governor spent the war years in Louisiana, became a soldier and POW however briefly, and afterward opposed Reconstruction.

A United States Senator when named to the Supreme Court by President Grover Cleveland in 1890, White was a southerner who became a `nationalist’ judge supporting expansions of federal authority. Promoted to the chief justiceship by President William Howard Taft in 1910, White in Standard Oil Company of New Jersey v. United States embraced a narrowing construction of the sweeping Sherman Act. The anti-trust measure states at 15 U.S.C. 1 “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” His rule of reason - only unreasonable restraints are barred - remains the foundation of anti-trust law today.

During World War I, White wrote two important decisions in favour of federal emergency powers. Wilson v. New (1917) sustained the Adamson Act of 1916, fixing minimum wages and maximum hours for railroad workers. Military conscription was upheld in the Selective Draft Law Case (1918).  

Today’s conservative Justices hark back habitually to the now scriptural Federalist Papers and the compromises of the 1787 Federal Convention.  Some expressions - such as those of Antonin Scalia dissenting in the Arizona v. United States immigration law case - employ language evocative of  the Articles of Confederation, Article II, if not that of the Confederate States. Scalia there wrote:  “The United States is an indivisible “Union of sovereign States.” [Citing Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938).]  But White, who experienced the defeat of secession and the re-founding of the nation via the Civil War Amendments expressed a remarkably different vision in the 1918 Selective Draft Cases:
under the Constitution as originally framed, state citizenship was primary, and United States citizenship but derivative and dependent thereon, therefore the power conferred upon Congress to raise armies was only coterminous with United States citizenship, and could not be exerted so as to cause that citizenship to lose its dependent character and dominate state citizenship In reviewing the subject, we have hitherto considered it, as it has been argued, from the point of view of the Constitution as it stood prior to the adoption of the Fourteenth Amendment. But to avoid all misapprehension, we briefly direct attention to that Amendment for the purpose of pointing out, as has been frequently done in the past, how completely it broadened the national scope of the Government under the Constitution by causing citizenship of the United States to be paramount and dominant, instead of being subordinate and derivative, and therefore, operating as it does upon all the powers conferred by the Constitution, leaves no possible support for the contentions made, if their want of merit was otherwise not so clearly made manifest.
Kent has done important service on a number of counts.  His meticulous reconstruction of White’s Civil War experience  conveys the complexities of wartime life in Louisiana which, though New Orleans fell to the Union on May 1, 1862, remained contested territory throughout the war.  This biographical exploration provides an important angle to understand the evolving thinking of a man who as Associate Justice and Chief Justice helped to develop a jurisprudence of national authority which feels quite contrary to the vision embraced by today’s conservatives who embrace not the early Federalists with whom the mature White would have been comfortable but rather the grumbles and cavils of the Jeffersonian Democrats. - gwc
* White, the first Roman Catholic Chief Justice, was a member of Council #2473 of the Roman Catholic civic organization the Knights of Columbus


Edward Douglass White (1844-1921) was appointed associate justice of the U.S. Supreme Court in 1894 when he was a sitting U.S. senator, and was elevated to chief justice in 1910. Given his background — White was a Democrat, Confederate veteran, sugar planter, and lawyer from New Orleans, and son of a Louisiana governor — one would have expected White to share the legal and political views of others of his background, class, and region, which were generally hostile to federal power and fervently in favor of white supremacy. Yet White was a nationalist on the Supreme Court. He was considered a de facto Republican by many prominent northern Republicans, and was elevated to the chief’s seat by William Howard Taft. As a justice White voted repeatedly to uphold expansive uses of Congress’s regulatory and taxing powers, including powers first exercised by the Union during the Civil War to tax income and raise armies by conscription. White did not have enlightened racial views, and joined the majority of the Court in Plessy v. Ferguson and other decisions that denied equal rights to African-Americans. But he also wrote the Court’s decisions holding unconstitutional that so-called “grandfather clauses” that were used in the South after the war to prevent African-Americans from voting, and voted in favor of civil rights in other important cases. 
Previous biographers have recognized the importance of White’s experience as a Confederate soldier to his life and later judicial and political outlook. But the details they have published about White’s military service have been only brief and vague, and sometimes simply wrong. Relying on a far broader array of original and secondary sources than any previous study, this paper explores what exactly White did, saw, and experienced during the Civil War. Crucially, though, the story is also one about omissions and even deception by White. A newly-discovered document shows that he lied to Federal interrogators about his war service when he was captured in 1865. In later life White rarely spoke of the war, and when he did he offered almost no details about his service. He failed to correct the record when inaccurate biographical details about his service were published. His actual war service was almost certainly much less extensive and honorable than previous biographers have claimed. The most detailed information we possess shows him joining a marauding guerrilla band in rural Louisiana in the closing months of the war. 
Later in life, the one thing that White clearly and honestly expressed about the war was deep regret that it occurred at all, anguish about its human toll and effect on his beloved country, and self-criticism about his youthful service on the Confederate side. This picture that emerges of White and his war service is much more complex than offered in previous biographical studies, and provides a surer foundation for assessing his life and judicial work, and accurately understanding his place in the country’s political and legal history.

Friday, January 29, 2016

Michael J. Kennedy, Lawyer for Underdogs and Pariahs, Dies at 78 - The New York Times

I've represented the lowly but I have never been the battler that Michael J. Kennedy was.  He was of the same cloth as William Kunstler.  Both heroes of mine though I followed in their footsteps no more than I did those of Odysseus or Shackleton.  - gwc

Michael J. Kennedy, Lawyer for Underdogs and Pariahs, Dies at 78 - The New York Times
by Sam Roberts
Michael J. Kennedy, who as a criminal lawyer championed lost causes and deeply unpopular defendants — including John Gotti Sr., Huey P. Newton and Timothy Leary — and finally won freedom for Jean S. Harris, the convicted killer of Dr. Herman Tarnower, the Scarsdale Diet doctor, died on Monday in Manhattan. He was 78.
The cause was complications of pneumonia, which developed while he was being treated for cancer, his wife, Eleanora, said.
A steadfast defender of the underdog and the First Amendment, Mr. Kennedy represented radicals including Rennie Davis, Bernardine Dohrn and Mr. Newton, co-founder of the Black Panther Party. His clients also included the Native American protesters at Wounded Knee, S.D., the family of the rogue real estate heir Robert A. Durst; Mr. Leary, the LSD guru; and Mr. Gotti, the mob boss.
***Mr. Kennedy immersed himself in radical causes from the start, representing Cesar Chavez and his migrant farm workers’ union in their rent strike against California landlords who charged exorbitant rents for barely habitable shacks.
In New York, as staff counsel for the National Emergency Civil Liberties Committee, he represented conscientious objectors, draft resisters and deserters, clogging the legal system by entering not guilty pleas and demanding trials.
His clients included two Columbia University students — both of whom, he proudly pointed out, became judges — who were being disciplined for trying to shut down Columbia’s law school to protest the war in Vietnam.
In 1980 he negotiated the surrender of Ms. Dohrn, the Weather Underground leader, after she eluded the law for more than 10 years. Federal charges against her had been dropped. She pleaded guilty to aggravated battery and bail jumping stemming from violent antiwar protests and was fined $1,500 and placed on probation for three years.
In 1982, Mr. Kennedy persuaded a Brooklyn jury weighing charges against five men accused of conspiring to smuggle weapons to the Irish Republican Army that the Central Intelligence Agency had sanctioned their gunrunning.
“It is up to the government to prove that the C.I.A. was not involved with the defendants,” Mr. Kennedy declared, “not our burden to prove that it was.”
In 1993 he persuaded Gov. Mario M. Cuomo to grant clemency to Mrs. Harris, the former private school headmistress who in 1980 killed Dr. Tarnower in what she said was a botched suicide attempt but which prosecutors proved was vengeance by a woman scorned. She had suffered at least two heart attacks in prison.
And the following year, he stunned fellow lawyers by arranging for his client, Ricardo S. Caputo, to explain in a television interview — before he surrendered to the police — why he had killed several women. The tactic apparently helped spare him the death penalty.
Speaking of Mr. Tigar, Mr. Kennedy might just as well have been referring to himself when he said in 1995: “He understands that the way we measure the value of our justice system is how it treats society’s pariahs. It’s easy to treat the popular people well.”