Wednesday, March 4, 2015

Why the ACA challenge violates federalism // Balkinization

This post - the day before oral argument in King v. Burwell - makes a point that Justice Anthony Kennedy seems to have grasped.  It is, in essence: states who did not establish exchanges (like Kynect or Covered California) did so expecting that via Healthcare.gov their citizens would get the benefit of the subsidies offered by the ACA.  If that was not true they states should have been given fair notice, rather than be forced to deal with the crisis created by depriving thousands of citizens of a federal economic benefit. - gwc
Balkinization: Why the ACA challenge violates federalism
by Simon Lazarus Tuesday, March 3, 2015
 Opponents of the Affordable Care Act have been caught off guard by the possibility that the challenge in King v. Burwell actually violates principles of constitutional federalism. The federalism argument has been made in two important Supreme Court amicus curiae briefs, one submitted on behalf of 22 states and the District of Columbia, and another on behalf of four law professors – Abbe Gluck, Gillian Metzger, Thomas Merrill, and Nicholas Bagley. The federalism argument is based on the doctrine of Pennhurst State Hospital v. Halderman, 451 U.S. 1 (1981), written by then-Associate Justice William Rehnquist.
The professors’ brief explains that “Pennhurst and related decisions . . . broadly reflect a strong interpretive presumption that when Congress intends to impose conditions on States’ choices that would result in significant consequences, it does so unambiguously.”  Only with “clear notice” of such consequences, can states exercise choices offered by federal statutes, in a manner that enables them to “serve their proper role in the legislative process and in our federal system.”
 Both briefs demonstrate that, if the King v. Burwell challengers’ interpretation is correct, states that refused to set up their own exchanges did not get the requisite “clear notice” that if they turned operation of their exchanges over to the federal government, they would strip their citizens of the tax credits and subsidies that currently help some 87% of them (on average) purchase insurance. Moreover, stripping these subsidies will likely cause the collapse of the exchanges themselves, and disrupt or quite possibly crash altogether these states’ entire individual (non-group) insurance markets.
 Under the doctrine of Pennhurst, these are pretty significant consequences and they require courts to interpret the statute to avoid springing these consequences on states unawares.  Hence, the challengers’ interpretation must be rejected, and the Obama administration’s competing interpretation – making tax credits and subsidies available nationwide – should be adopted. On Tuesday, C. Boyden Gray, Adam White, and Adam Gustafson, who authored their own amicus brief in support of petitioners, tried to rebut the federalism argument in a guest post on the Volokh Conspiracy. (The post also references Professor Gluck’s January 27 Politico article summarizing  that argument, and Professor Marty Lederman’s March 2 post on Balkinization to similar effect.) "
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Tuesday, March 3, 2015

11 Lies Netanyahu Told Congress on Iran – Forward Thinking – Forward.com


11 Lies Netanyahu Told Congress on Iran – Forward Thinking – Forward.com
by Lara Friedman
"The case Netanyahu laid out against an Iran deal in his address to Congress revolves around 11 core arguments. Think they sound convincing? Look at those arguments one by one, and you’ll see why each of them is bogus.
 Argument #1. More pressure can secure a better deal with Iran than current negotiations.  If Iran walks away from talks now, this pressure will eventually bring it back to the table, ready to make more compromises.

 Pressure in the form of sanctions — especially multilateral, international sanctions — helped convince Iran to come to the negotiating table. But Iran’s red lines in negotiations, including retaining some level of enrichment, are clear. Additional U.S. pressure now, aimed at forcing the Iranian regime “to its knees,” is far more likely to scuttle talks than to force greater Iranian flexibility, and the failure of diplomacy would be blamed on the U.S., not Iran. One result: no deal to curtail Iran’s nuclear program. Another result: strengthening those in Iran who support weaponization of the nuclear program as a deterrent against attack. And a third result: the almost certain collapse of the international sanctions regime, which has been critical to restraining Iran’s nuclear program so far.

 Argument #2. The only good deal with Iran is one that completely or nearly completely dismantles Iran’s nuclear infrastructure, preventing Iran from enriching or limiting Iran to close to zero enrichment. 
 Zero enrichment or complete dismantlement of Iran’s nuclear infrastructure is both unachievable and unnecessary. It’s unachievable because just as U.S. negotiators must get a deal they can “sell” to their constituencies, Iranian negotiators must be able to sell a deal to their own constituencies as meeting their own red lines. And it’s unnecessary because assuming “zero enrichment” and “complete dismantlement” are genuinely shorthand for “the best possible guarantee that Iran’s nuclear program will remain peaceful,” this goal can be achieved through a nuclear agreement that includes strict limits on Iran’s enrichment capacity and stringent safeguards and transparency with respect to Iran’s nuclear facilities and materials. Insisting on “zero enrichment” or “total dismantlement” guarantees no deal — which means it guarantees that such limits and safeguards are absent.

Argument #3. Any deal with Iran is a bad deal, because the mullahs can’t be trusted. 
 Any nuclear deal with Iran would be grounded in ongoing rigorous inspections and verification mechanisms — not trust — to ensure that Iran lived up to its end of a deal. Should Iran interfere with those inspections and verification mechanisms, or should those inspections and verification mechanisms reveal Iranian malfeasance, the international community would know immediately and have ample opportunity to prepare its response. Without an agreement, those rigorous inspections and verification mechanisms would be absent."

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Where health care $$ go

Monday, March 2, 2015

http://swizzlesportsmedia.com/new-photos-of-joshua-slocum-uncovered-in-an-old-photo-album/

The real electoral map

How to know if a state is basically Republican or Democratic:
GOP  1)it did not abolish slavery before the Civil War or 2) it has no big city
Democrat: neither 1 nor 2 is true (except for Virginia which is largely a D.C. suburb.)
US SlaveFree1861

Sunday, March 1, 2015

Monroe H. Freedman, scholar of legal ethics and civil liberties, dies at 86 - The Washington Post



Monroe Freedman was the godfather of the study of legal ethics - a field that did not exist when I was in law school.  (Monroe and Watergate cured that.) 
A couple years ago he noted some comments of mine and suggested lunch but I neglected to follow up.  We corresponded and sometimes commented on Legal Ethics Forum.  He spurred me to write critically about Kenneth Feinberg's work on the BP oil spill; and we had similar views about the prosecutor in the Trayvon Martin case - which we found prejudicial to the defense and, I thought, incompetent. -gwc
Monroe H. Freedman, scholar of legal ethics and civil liberties, dies at 86 - The Washington Post
by Matt Schudel

"Monroe H. Freedman, a law professor who was often credited with establishing the academic field of legal ethics, and whose controversial views once led a future chief justice to call for his disbarment, died Feb. 26 at his home in New York City. He was 86. The cause was chronic lymphocytic lymphoma, said a granddaughter, Rebeca Izquierdo Lodhi.
 Mr. Freedman became a nationally renowned expert on civil liberties while serving as a law professor at George Washington University from 1958 to 1973 and later at Hofstra University in Hempstead, N.Y. He became even better known for his contributions to the emerging field of ethics, in which he addressed the sometimes conflicting responsibilities of a lawyer toward clients and toward the court.
 “He was a towering figure in the legal academy and especially in legal ethics,” Georgetown University law professor Abbe Smith, who taught alongside Mr. Freedman and published books with him, said in an interview. “He was universally regarded as the founder of modern legal ethics as an academic field.” 

Mr. Freedman wrote textbooks on the subject, and his landmark 1966 article, “The Three Hardest Questions,” remains a mainstay of the study of legal ethics to this day. The article, which appeared in the Michigan Law Review, outlined three central obligations that every defense lawyer is bound to uphold: understanding all the facts of a case; preserving the confidentiality of a client; and being candid and forthcoming to the court. There are times, however, when these legal principles can be in conflict, producing what Mr. Freedman called a “trilemma.” The trust between a lawyer and client, he argued, is a fundamental cornerstone of the legal system and is essential to discovering the truth. But what is the lawyer’s responsibility if a client says he will not testify honestly on the witness stand? Which legal obligation is more important — confidentiality or candor? Mr. Freedman suggested that a defense lawyer’s primary duty is to be his client’s best advocate. The judicial system, after all, rests on the presumption that defendants are innocent unless the prosecution can prove otherwise. A defense attorney’s first responsibility, in other words, is to maintain the confidence of his client’s private discussions, not to declare the client guilty."

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Benjamin Netanyahu’s Iran Exaggerations Now Clear for All To See – Forward.com

We are about to witness a Fox News extravaganza courtesy of John Boehner.  It is going to be ugly.  So here are some facts. They will be hard to find as the dogs of war howl this week. - gwc
Benjamin Netanyahu’s Iran Exaggerations Now Clear for All To See – Forward.com
by J.J. Goldberg

"Say what you will, the latest intelligence leak to hit the world headlines couldn’t have come at a worse time for Benjamin Netanyahu. Just a week before the Israeli prime minister’s congressional address on the Iranian nuclear threat, a document from his own spy agency turns up and shows that his dark warnings about Iran don’t always match the facts known to Israeli intelligence. 
 The document in question is a 2012 memo from Israel’s Mossad intelligence agency, updating its South African counterpart on the status of Iran’s nuclear project. It’s one of several hundred classified South African intelligence documents leaked to Al Jazeera and reported February 23 in Al Jazeera and the Guardian of London. 
 What put the Mossad memo in the headlines is the fact that it’s dated October 22, 2012, barely three-and-a-half weeks after Netanyahu’s famous cartoon-bomb speech about Iran to the United Nations General Assembly. Yet it contradicted the Israeli leader’s U.N. speech on several critical points of fact, including how far away Iran was from bomb-making capacity and whether it even had the ability to produce weapons-grade uranium."

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Tappan Zee webcams

Saturday, February 28, 2015

Did Israel Put Money Over Justice? - NYTimes.com

Yekutiel Wultz, kissing his son's coffin in 2006
Daniel Wultz was murdered and his father injured by a suicide bomber in Tel Aviv in 2006.  In 2012 the family obtained a $32 million wrongful death and personal injury default judgment  against the Islamic Republic of Iran.  The U.S. District Court in Washington,D.C. also entered a $300 million punitive damages judgment.
The family also  sued the Bank of China, a state owned stock company, for aiding and abetting an"act of international terrorism".  The Bank, they said, aided terrorism by processing millions of dollars through an account in Guangzhou through which the militia Palestine Islamic Jihad obtained Iranian money. 

District Judge Shira Scheindlin  ruled in November 2012 that China's tort law might permit the action.  (I was retained by Boies Schiller as an expert on China's tort law for plaintiff Yekutiel Wultz and family). But not long after that the judge dismissed as time barred the tort claims based on China's tort law.

Only the federal Anti Terrorism Act claims survived.  A fierce discovery battle has ensued - with the Bank protected by banking laws which guarantee confidentiality of depositors funds - and more importantly the confidentiality of law enforcement measures to prevent and punish money-laundering.  Although Suspicious Activity Reports have been protected, other factual matters have been explored.
But the State of Israel is still putting up a fight to prevent Uzi Shaya - a former intelligence officer who traveled to China for Israel- from testifying - even voluntarily - about her experience after she left government.

Sunday's  column by Roger Cohen in the Times takes up the fight. - gwc
Did Israel Put Money Over Justice? - NYTimes.com
by Roger Cohen

ON April 17, 2006, a Palestinian suicide bomber killed 11 people near the old Tel Aviv bus station. Among the victims was Daniel Wultz, a bright and determined 16-year-old from Florida who fought for his life for 27 days before succumbing to severe injuries. His father, Yekutiel, who was wounded in the attack, watched the terrorist detonate himself. “I decided to do anything and everything I could,” he told me, “never again to have feel that helpless.

But almost nine years later, immense frustration has accumulated in Yekutiel Wultz, an Israeli citizen living in the United States, and his American wife, Sheryl Cantor Wultz (a cousin of Eric Cantor, the former House majority leader) over Israel’s actions since the death of their son and specifically over what they see as Prime Minister Benjamin Netanyahu’s abandonment of his cause.

****
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Round 2 DePuy Hip Implant Settlement explained

Plaintiffs lawyers explain the new settlement proposal. - gwc
DePuy Hip Implant - Round 2 Settlement Explained
by Richard Schlueter //Childers, Schlueter & Smith, LLC

On Friday, February 20, 2015, DePuy/ Johnson & Johnson agreed to pay approximately $420 million more to resolve approximately 1400 additional DePuy ASR lawsuits. The order came from the Court extending the settlement offer to Plaintiffs who had revision surgery after August 31, 2013 up through January 31, 2015.  hip
From the beginning of this litigation, almost five years ago, our goal at Childers, Schlueter & Smith has been to prosecute cases aggressively until DePuy accepted responsibility for its actions and offered to settle viable cases, or until viable cases were tried before a jury.  While we are pleased that DePuy has proposed a second round of settlements now for certain plaintiffs.
There are a number of very important issues we want all ASR patients to be aware of given this recent proposal:
1)      This is not a blanket, one-size-fits-all settlement proposal. DePuy’s proposal set outs specific terms which determine the individual settlement amounts for each person’s case (see below). As we have always maintained, all ASR cases are different.  Because of the differences in each case, the proposed settlement amounts for all claimants will be different.
2)      The settlement proposal is just that – a proposal – which you are not required to accept.  Individual claimants in any case can accept or reject any settlement offer.  At CSS, we evaluate each case and determine, as precisely as possible, the amount of compensation you would likely receive under the proposed settlement and whether it makes sense to continue under the program. For most it does, for a few select others it may not.
DePuy ASRWhat are the terms of the settlement?
DePuy is offering the proposed settlement to citizens and residents of the United State who: 1) had an ASR hip implanted in the U.S.: and 2) whose ASR hip was revised between August 31, 2013 and January 31, 2015. DePuy is only making the settlement proposal to patients who received an ASR hip. The proposal does not cover any other hip implant device manufactured by DePuy.
DePuy’s settlement proposal lists a number of factors which will determine the value of a settlement offer, such as whether you suffered a loss of income, whether you required another surgery after the revision of the ASR hip, your age, smoking history, and/or obesity.  As noted above, we are in the process of determining how these factors apply to our client’s cases right now and can do the same on new cases if you act fast.
Payment of Liens
If you choose to accept DePuy’s proposed settlement, they have also agreed to pay any liens that may be asserted by your medical providers or health insurance companies.  Liens are monies owed to repay your insurance company for the funds they paid relating to your ASR hip implant, or monies still owed to your medical providers for services they provided that relate to your ASR hip implant.  Ordinarily, such liens would be paid by you out of the settlement proceeds you receive.  In light of the fact that you have had revision surgery, the liens associated with your case could be significant.  We believe DePuy’s agreement to pay your liens is a benefit to anyone who chooses to accept DePuy’s proposed settlement.
Broadspire benefits
The Broadspire benefits that have been provided so far have been of great benefit to most of our ASR clients that are uninsured.  These benefits have been limited. In anticipation of the program potentially stopping, we urge you to provide us with documentation of all out of pocket expenses and lost wages that you have not already provided us, so we can submit them to Broadspire for processing if they were incurred prior to January 31, 2015.
What is the timeframe to decide to accept or reject DePuy’s proposed settlement?
To be eligible, you must register your case with DePuy by the stated deadline. Following that registration period, there will be a final enrollment date for all eligible claims where all the applicable medical records and settlement materials have to be properly submitted. We are currently waiting on the announcement of the enrollment deadline date. Once we have that date and the documents are made available, we will prepare settlement packets for our clients review and signature. We also have the capacity to do this on any new claims submitted to our office in the very near future.
DePuy’s walk away option
DePuy will have a walk away option. The percentage of enrollment is still to be announced. If enrollment is less than the target percentage, DePuy can choose to walk away and not pay you any settlement at this time.  DePuy can also choose, however, to continue with the settlement if less than the target percentage of people accept it, but they do not have to do so.  If less than target percentage of the eligible people agrees to the proposed settlement, DePuy must decide whether to continue with or withdraw the proposal by a date that will be published shortly.
Our next steps
As noted above, the law firm of Childers, Schlueter & Smith continues to investigate and take on new DePuy ASR clients that need assistance with their potential claims. We are evaluating all cases under the terms of the proposed settlement, and we will take all steps needed to ensure your rights are protected. As time is limited, you must act now if you want to put our firm’s experience to work for you. As always, if you have any questions, please can contact our office for more information on the Round 2 DePuy ASR Hip Implant Settlement. All calls are confidential and all initial consultations are free of charge

FDA approval bars state law tort claim

http://m.njlawjournal.com/module/alm/app/nj.do#!/article/1735946490

"textualism is not hyper-literalism" - The winning brief in King v. Burwell

Professor Charles Fried
former Solicitor General

Fifty friend of the court "amicus" briefs clamor for the attention of the justices of the Supreme Court in King V. Burwell.  To be argued next week,  it seeks to deny subsidies to people who got their health insurance on healthcare.gov rather than through state exchanges like Kentucky's Kynect.  But one brief has particular potential to get the justices attention and win the argument to save the Affordable Care Act as a national institution.

William Eskridge (Yale) joins with former  Solicitor General, Massachusetts high court justice, and Harvard Law professor Charles Fried. The alliance of Eskridge (the intellectual godfather of same sex marriage) and Fried (President Reagan's SG and a reliable curmudgeon) should get the attention of the court, packed as it is with  Harvard and Yale grads- both justices and law clerks. It's message is plain and is directed to the justice considered most likely to lead the charge against "Obamacare"which  he sees as constitutional overreach - Antonin Scalia. Rejecting"purposivism" as granting too much discretion to judges, it embraces Justice Antonin Scalia's battle flag - "textualism":

"textualism is not hyper-literalism, and textualists do not read the words of a statute in a vacuum" say Eskridge, Fried, and three other law professors in their brief.

My New Jersey Law Journal Editorial Board colleague Michael Stein - who drew my attention to it - is predicting Scalia will be persuaded, contrary to conventional wisdom.  And the ACA survives intact.
- gwc

Brief of William Eskridge, John Ferejohn, Charles Fried,  Lisa Manheim and David Strauss
Summary of Argument (excerpted)

The court of appeals held that the Patient Protection and Affordable Care Act (ACA) does not prohibit the Internal Revenue Service (IRS) from providing tax credits to individuals who purchase health insurance on exchanges created by the Department of Health and Human Services (HHS). Petitioners challenge that conclusion on the sole ground that seven words in 26 U.S.C. § 36B— “established by the State under section 1311”— foreclose tax credits on HHS-created exchanges. The text, they say, is clear, so by holding otherwise, the court below elevated statutory purpose over statutory text.
But this is not, as Petitioners suggest, a case about textualism vs. purposivism. It is a case about good textual analysis vs. bad textual analysis. Textualism does not require courts to read statutory provisions in a vacuum. To the contrary, it is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (internal quotation marks omitted). By focusing exclusively on Section 36B’s seven words in isolation, Petitioners violate textualism’s core tenets and adopt an interpretation that would nullify the Act as a whole.

I. Modern textualism developed as a response to purposivism, which held that the letter of the law must yield to legislative “intent.” A search for legislative intent, textualists have explained, violates the constitutionally prescribed process of bicameralism and presentment: The only “law” to interpret is the text of a statute passed by both houses of Congress and signed by the president. By combing the legislative history for indicia of legislative intent, moreover, purposivist analysis risks substituting judicial judgment for the judgment of Congress. Thus, by focusing on the text of a statute—rather than on ethereal notions of legislative “intent”—textualism cabins judicial discretion, respects legislative supremacy in the policymaking process, and renders the interpretive process more predictable. But textualism is not hyperliteralism, and textualists do not read the words of a statute in a vacuum.  

John Oliver: Why We Elect Judges


'Don't Ask Policy' Bites Firm in Malpractice Coverage Case | New Jersey Law Journal


'Don't Ask Policy' Bites Firm in Malpractice Coverage Case | New Jersey Law Journal
by David Gialanella

A malpractice carrier need not indemnify a New Jersey law firm whose principal unwittingly omitted an associate's potential liability issues from the insurance application, a New Jersey appeals court said.
"[W]hen the exclusion clause of this policy referred to 'Named Insured,' it is clear that the term included both the firm as an entity and the individual attorneys employed by the firm," the Appellate Division said its its unpublished opinion on Feb. 27 in Imperium Insurance Co. v. Porwich.
The firm manager cannot "reasonably rely upon his asserted lack of personal knowledge ... to defeat the clear terms of the policy," the panel added.
According to the decision, the firm, Feintuch, Porwich & Feintuch of Jersey City, New Jersey, was retained in 2006 by Ismael Salgado in connection with a fall on a snowy sidewalk outside an apartment building.
The matter was handled by firm attorney Alan Porwich, who filed a personal injury action against the apartment building's supposed owner in February 2007, one day before the statute-of-limitation period was set to expire. But that person had died years earlier, and Porwich never identified the actual owner. The suit was dismissed with prejudice for lack of prosecution, the opinion said.
Porwich later testified that he was struggling with personal issues at the time of Salgado's engagement, but knew his inaction likely would lead to a malpractice suit, the opinion said.
Several times, Salgado unsuccessfully asked Porwich to return his file, and later filed an ethics grievance, which eventually resulted in a censure being issued by the state Supreme Court, according to court records.
In December 2008, prior to the ethics matter, firm manager Philip Feintuch applied to Imperium Insurance Co. for a malpractice policy, and answered in the negative a question about whether firm attorneys—"'any of you'"—had been "'aware of any incident, circumstances, acts, errors, omissions, or personal injuries that could result in a professional liability claim[.],'" according to the opinion.
Feintuch later acknowledged that he did not ask Porwich about any potential issues before filing the form, even though the latter had prior disciplinary cases. Feintuch also admitted to having no supervisory system in place to monitor other attorneys, and had a "'don't ask policy.'" the opinion said.
Feintuch renewed the policy in December 2009, and answered the pertinent policy questions in the same way, according to the opinion.
After Salgado filed his October 2010 malpractice suit, Feintuch Porwich sought coverage from Imperial, which issued a series of reservation-of-rights letters and eventually filed an action seeking a declaration that it was not obligated to indemnify the firm.
In a bench trial, Hudson County Superior Court Judge Lourdes Santiago denied the request, obligating Imperium to defend Feintuch Porwich. The judge said the 2007 state Supreme Court ruling in Liberty Surplus Insurance Corp. v. Nowell Amoroso required using a subjective standard–hinging coverage on what the named insured, Philip Feintuch, knew about potential liability, not other firm attorneys. She found that Feintuch didn't have actual knowledge of Porwich's errors, according to the opinion.
Santiago denied Feintuch Porwich's fee request, but did award about $48,000 in fees to Salgado, whom Imperium named a defendant because of his interest in the outcome of the declaratory judgment action.
Imperium appealed, contending that the trial court erroneously determined coverage based on Feintuch's subjective knowledge of Porwich's actions, and Appellate Division Judges Susan Reisner, Michael Haas and Carol Higbee agreed in a per curiam decision.
The "terms of the policy clearly excluded [the firm's] claim because Porwich was fully aware that his actions would likely lead to Salgado filing a malpractice claim against him and the firm," the panel said, noting that the policy "'expansively' defined the term 'you' to include" any firm attorney.
"Thus, Porwich's knowledge of his own errors in the Salgado matter was plainly critical to the issues of coverage," the court said.
The court noted that the small, three-person firm "held Porwich out to the public as a partner and he had an extraordinary amount of responsibility in the firm."
"In spite of this fact, Feintuch adopted a policy of not asking his associates if they were facing any possible professional liability claims because he believed they would bring those matters to his attention," the court said. "In Porwich's case, however, this policy was honored only in the breach because Feintuch admitted knowing that Porwich had been the subject of prior claims, and that Porwich never brought those matters to Feintuch's attention until after they were resolved."
The court also reversed the $48,000 fee award to Salgado, finding that he could not be deemed a successful claimant under Rule 4:42-9(a)(6).
During the pendency of the declaratory judgment action, Imperium continued to defend Feintuch Porwich in the malpractice suit, which ended in a defense verdict favoring the firm, according to the opinion.
Jonathan Koles of Koles, Burke & Bustillo in Jersey City, who represented Salgado in both cases, said he was handling the malpractice action on contingency and "got pulled sideways" into the declaratory judgment action.
"I'm out a lot of time and money, but more importantly, Mr. Salgado got nothing," Koles said.
He said an appeal to the Supreme Court is unlikely. "The outcome is entirely moot now," except for the fee issue, he added.
Feintuch and Porwich couldn't be reached, and the firm's outside counsel, Jack Wind of Margulies Wind in Jersey City, declined to comment other than to say that an appeal from their side is also unlikely.
Steven Lewbel of Melito & Adolfsen in New York, Imperium's counsel, didn't return a call seeking comment.

Read more: http://www.njlawjournal.com/id=1202719251859/Dont-Ask-Policy-Bites-Firm-in-Malpractice-Coverage-Case#ixzz3T0ohMmIx


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Thursday, February 26, 2015

Kill the billable hour quota?

Sigrid Irias - a California lawyer and adjunct professor at UC Hastings points in a recent op-ed piece to hazards and evils of the billable hour quota common at large firms:

It seems a well-accepted fact that police traffic-ticket quotas lead to more unjustified tickets.
Many states recognize that unwarranted tickets are written even when unofficial quotas are used. That emphasis on quotas means fewer valuable police services not related to ticketing are provided: in short, ticket quotas do not give the taxpayers the best bang for their buck, and should be prohibited.
When Illinois adopted its own ban on ticket quotas in 2014, the state's governor observed that the change would increase public confidence. Last week it was announced that Arizona is the latest state considering a ban on ticket quotas.
Many believe more hours of less benefit to clients get billed when law firms use steep billable hour "goals." There seems to be support for this proposition not only by way of common sense-based consideration, but also in the literature, where there is no prohibition of the practice, and no rule of professional conduct has been proposed to address the issue.

Recent History

Over the last 15 years, ethicists have scrutinized the origin of escalating billable hour goals and their progeny. In August 2002, the ABA's billable hours commission noted the "corrosive effect" of billable hour goals, including that they "[penalize] the efficient and productive lawyer," and that "[t]he unending drive for billable hours has had a negative effect … on family and personal relationships." According to Yale Law School's calculations, it takes over 2,400 hours at work to actually bill 1,800 hours. Especially when the employer law firm does not have enough real billable projects for its lawyers and paralegal employees to work on, the pressure to nonetheless meet billable hours may result in what the ABA's 2002 report characterized as "aggressive time recording." In it, one writer discussed multiple ways in which hours are ultimately magnified, and the difference between time padding (tacking on extra time to a billing entry) and task padding (undertaking unnecessary tasks in order to increase the number of hours billed).
Time padding occurs when billing entries are rounded up or even fabricated. Task padding occurs, for example, when motions are frantically prepared after a verbal agreement on the terms of a settlement has been reached to ensure the maximum number of hours can be billed before the settlement is finalized in writing. As early as 2005, at least one Washington Lawyer magazine writer had warned that using billable hour goals had potential drawbacks similar to those seen with police ticketing quotas. In 2006, an article published by the ABA noted, "[f]acing such billable hour requirements, or perhaps hoping to generate more revenue or reach the next bonus threshold, some lawyers fabricate, inflate, or 'pad' their billable time." Observing that padding is "probably rather common," the author outlined in some detail various ways in which padding can be done.
Almost eight years ago, Lawrence Fox, a frequent writer on ethics issues and former co-chair of the ABA Litigation Section's "Raise the Bar" project, urged the immediate end of billable hour goals as contrary to client interests. Fox outlined the evolution of billable-hour goals as a system inherently in conflict with law firm clients' interests.
Despite these alarms, the billable hour goal system remained largely unchanged. The defenses of the system—which the ABA had reviewed in its 2002 report—included that it is relatively "simple," and that by the 21st century, the system was "entrenched."


Read more: http://www.njlawjournal.com/id=1202717774389/Its-Time-to-End-Billable-Hour-Quotas#ixzz3SuRJGMvF

Flat fee billing - the way to go?

Norman Pattis - a criminal defense lawyer and prolific blogger has a recent op-ed piece in the New Jersey Law Journal.  Writing about flat fee billing, he reports:
Those of us walking on the wild side of the law are bemused that large firms are turning to flat-fee billing in order to keep legal fees down. Small firms have survived with flat-fee billing for a long time. Few clients can afford to pay hourly fees. But can large law firms afford to survive on flat fees?
Consider the conflicting imperatives governing lawyers' fees.
We are expected to charge reasonable fees. We cannot charge nonrefundable retainers. Clients are entitled to a return of unearned fees in cases where the attorney-client relationship ends sooner than anticipated. How do you reconcile all these imperatives?
It's not easy.
Here are some things that can easily go wrong in flat-fee cases.
First and foremost, some clients will view flat fees as an invitation to consume as much of your time as they can. We're required to return calls, to communicate, to educate, and to advise, counsel and advocate. Some clients bring a sense of maturity to the relationship; others need their hands held daily. On a flat-fee retainer, you can be bled to death.

Suppose the client behaves so unreasonably that you can no longer represent him with the zeal required. You might be tempted to withdraw. In that case, expect opposition to the motion to withdraw from the court. "The lawyer agreed to represent me for a flat fee," you will hear. "If he withdraws, I want my money back. He did not perform what the contract requires."
But you've spent countless hours answering calls, emails, drafting letters, negotiating with adversaries, trying to follow each of the bouncing balls the client belched out in his not always sober hours of need.
Who decides which portion of the fee is reasonable compensation? Don't trust the trial court. It is looking down the barrel of a potential pro se case if you are gone. Expect resistance from the court on your motion.

A flat-fee case might be a marriage from which there is no divorce.
Next, suppose you agree to represent a party and then, shortly after your flat fee clears the bank, the client turns surly and fires you. At this point, you've put time into the file, researching the law to make sure you understand the case, and familiarizing yourself with the facts. Can you keep the fee?
If you do, you'll most likely get in trouble. The rules prohibit nonrefundable retainers.


Read more: http://www.njlawjournal.com/id=1202715313197/The-High-Risk-of-FlatFee-Billing#ixzz3SuPGk93w

H&R Block Immigration Document Services //Legal Ethics Forum

Legal Ethics Forum: H&R Block Immigration Document Services
I assume the next Unauthorized Practice of Law battle is coming now that H&R Block is offering immigration document preparation services.  
A couple of interesting points about this business model.  First, customers have to go into the stores to fill out the forms on H&R's computers.  I'm not sure why they are starting the model this way instead of letting people fill out the forms from their home computers the way customers do with tax forms.  Also, they appear to only be offering the service in their Texas offices at this time.  I'm not sure why the roll out is being limited to Texas as I'm sure there are other states with high immigration needs.  Perhaps there is something about Texas law that makes it a good forum for initial legal challenges?
posted by Laurel Rigertas
Dear Laurel,
These forms are all available on the USCIS website. They also have instructions on the website. I could be wrong, but the [H&R Block] business model seems to be based on charging people to help them fill out the forms, which explains why they need to come into a store.
Milan Markovic

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Wednesday, February 25, 2015

The Great Society speech

President Johnson signing the Civil Rights Act
by Matthew Dallek // George Washington University

The Speech That Launched the Great Society

The Speech at University of Michigan, May 22, 1964


President Lyndon B. Johnson declared that the government, working with a citizenry motivated to improve community life, had to make cities more livable, protect the natural environment, and provide education that gave all citizens regardless of race or class the chance to rise in society and find meaning in life.
The speech was a spiritual invocation as much as a political statement to fulfill Jefferson’s promise in the Declaration of Independence to give all the right to “pursuit of happiness.”
“The Great Society,” Johnson declared, “…demands an end to poverty and racial injustice,” but it also had to be “a place where every child can find knowledge to enrich his mind and enlarge his talent…where the city of man serves not only the needs of the body and the demands of commerce but the desire for beauty and the hunger for community.”

The Great Society, he added, meant making the nation’s cities places where “future generations can come together, not only to live, but to live the good life.” It was a place where “America the beautiful” and “our natural splendor” were protected from the pollution that threatened to destroy “the water we drink, the food we eat, the very air we breath.”

While Johnson’s 1964 speech dwelled on the problems of the cities, the environment, and education, the constellation of programs that came to be known as the Great Society addressed a much wider agenda. They included not only Medicare, Medicaid and civil rights legislation but also the creation of a department of Housing and Urban Development and the National Endowment for the Arts and the Humanities, to name just a few.
“The liberal assumption that rising wealth more widely distributed would liberate Americans for the ‘pursuit of happiness’ had proven…inadequate,” [principal drafter Richard]  Goodwin wrote of the genesis of the speech. The address, he argued, represented “the only possible direction for liberating, progressive change”.

Tuesday, February 24, 2015

Legal Malpractice Insurance: Policy Rescission for Application Misrepresentation Applies Even to Innocent Insured

This is a tough decision by the Illinois Supreme Court because its effect is that lawyers working for a firm whose managers misrepresented a fact on an application for professional liability insurance will cause every insured - every lawyer in the firm - to lose coverage. The court's most compelling point is this:
In the case of a misrepresentation that materially affects the acceptance of the risk, the issue is the effect of that misrepresentation on the validity of the policy as a whole. A misrepresentation on the policy application goes to the validity of the policy as a whole. The innocent insured doctrine, on the other hand, has a narrower focus, typically dealing with situations where an insured’s wrongdoing triggers a policy exclusion, and the question is whether the insurer has a duty to defend the innocent insured under a policy that is still in effect.
An exclusion might be, for example, a failure to cooperate with the insurer, or failure to give timely notice of a claim.  A misrepresentation in the application is material if acceptance would have had a material effect on whether to issue the policy in the first place. 

Kevin LaCroix points out that claims made policies look back over a period of time and that there is something incongruous about voiding an entire policy - leaving innocents uninsured - because a single potential claim was omitted on renewal by one member of the firm.  Denial of coverage on the omitted claim could be justified but not voiding the policy in his view.
- gwc

Legal Malpractice Insurance: Policy Rescission for Application Misrepresentation Applies Even to Innocent Insured

Posted in D & O Insurance
Under the applicable Illinois statute, an insurer may seek to rescind a policy if it was procured by an application misrepresentation if the misrepresentation was “made with the actual intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the company.” But even if rescission is otherwise warranted, may the insurer rescind the policy even as to an “innocent insured” who was unaware of the application misrepresentation? 
That was the question raised before the Illinois Supreme Court in Illinois State Bar Association Mutual Insurance Company v. Law Offices of Tuzzolino and Terpinas. In a February 20, 2015 opinion (here), the Court rejected the ruling of the intermediate appellate court, which had applied the “innocent insured” doctrine to preserve coverage for a law firm partner who was unaware of the a misrepresentation in the law firm’s legal malpractice insurance renewal application, and held that the insurer was entitled to rescind the policy as to all insured persons, even the innocent insured. As discussed below, I have a problem with the circumstances this case presents. 

Read More 

The Blaster: Stalingrad on the Tigris: The Kobani Model Writ Large?

Mosul, Iraq
Whiskey Tango Foxtrot. They're gonna retake the Sunni/ISIS stronghold with the US trained, thoroughly corrupt (if I give you my salary can I go home?) Shia/Iraqi Army that collapsed last year in the face of a few thousand ISIS irregular troops? - uh huh.   - George Conk
The Blaster: Stalingrad on the Tigris: The Kobani Model Writ Large?
by Chuck Spinney
"Last summer, in a scene reminiscent of Lawrence of Arabia, the 350,000 man Iraqi army, trained and armed at an expense of $25 billion over a 10 year period by the US, collapsed in a few short weeks after being blitzed by a few thousand, lightly armed, fast moving ISIS irregulars. The crown jewel in the spectacular ISIS offensive was its capture of Mosul, Iraq’s second largest city, on the banks of the River Tigris, 225 miles north of Baghdad.  Subsequent ISIS operations quickly captured most of the inhabited areas north and west of Baghdad (see map). 
 On 19 February, CENTCOM announced plans to retake the city using a rebuilt Iraqi army in alliance with the Kurdish Peshmerga army.  If true, the CENTCOM plan to retake Mosul beggars belief for several reasons:

1. To pull this off, CENTCOM must somehow assemble up to 25,000 Iraqi and Peshmerga troops opposite Mosul, then drive out the 2,000 ISIS fighters believed to control the city in a large urban battle.  While the Kurdish Peshmerga forces are near Mosul, they cannot take Mosul alone, because a Kurdish attack would drive the Sunni Arabs remaining in Mosul into the arms of ISIS.  For the same reason, Iraqi forces must include Sunnis as well as Shia’s. 
But, the Iraqi forces must march over 225 miles up the Tigris Valley, through ISIS controlled territory, to even reach Mosul.  Such a movement would weaken the forces defending Baghdad and open up the real possibility of ISIS spoiling operations in the south, including attacks on the army’s long exposed lines of communication or even Baghdad itself.  Moreover, how such a power projection and attack by the newly rebuilt and as yet untested Iraqi army could even be launched before the summer heat impedes the massive movement and heavy fighting is a question that boggles the mind."
read more

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Sunday, February 22, 2015

Did the CIA Get a Bum Rap on Torture? // David Cole - NY Times



David Cole has read the Senate Torture Report and finds it is an unsatisfactory political compromise which focuses on effectiveness rather than the illegality of torture - thus letting the political decision makers and the designers of spurious legal defenses off the hook. - gwc
Did the Torture Report Give the CIA a Bum Rap?
by David Cole

WASHINGTON — In December, when the Senate Intelligence Committee issued its long-awaited report on the C.I.A.’s detention and interrogation program, it seemed to confirm what I and many human-rights advocates had argued for a decade: The C.I.A. had started and run a fundamentally abusive and counterproductive torture program. What’s more, the report found that the C.I.A. had lied repeatedly about the program’s efficacy, and that it had neither disrupted terror plots nor saved lives.

The report continues to reverberate. Human-rights groups are calling for a special prosecutor to investigate Bush-era officials who authorized torture. The first C.I.A. officer to publicly discuss the practice of waterboarding, who was later imprisoned for leaking classified information, was recently released and says he was the victim of a politicized prosecution. On Wednesday, Poland agreed to pay reparations to two former detainees who were tortured at a C.I.A.-run “black site” there.

But the principal lesson drawn by countless commentators in the initial news cycle — that torture does not work — was reached before nearly anyone read the full report and responses by the C.I.A. and the Republican members of the committee. The report and responses amount to 828 pages. I’ve now had a chance to read the documents in full. And I suspect the C.I.A. was treated unfairly.

The full story is more complicated, and ultimately much more disturbing, than the initial responses — mine included — suggested. And because these documents may be the closest we come to some form of accountability, it is essential that we get the lessons right.
*****

The C.I.A. admits that it should never have claimed “that the information it acquired could not have been obtained some other way.” Such assertions, it says, were “sincerely believed but were also inherently speculative.” But that is hardly a major concession. Anyone who thinks about it for a minute will realize that it is impossible to know whether information obtained in one way might not have been obtained in some other way. In retrospect, the Senate committee should not have given so much emphasis to whether torture works. The law does not prohibit torture because it is ineffective, but because it is wrong. As David Bromwich wrote in The London Review of Books, asking whether torture works is like asking whether slavery works. It’s the wrong question.

So why did the committee focus on efficacy and misrepresentation, rather than on the program’s fundamental illegality? Possibly because that meant it could cast the C.I.A. as solely responsible, a rogue agency. A focus on legality would have rightly held C.I.A. officials responsible for failing to say no — but it also would have implicated many more officials who were just as guilty, if not more so. Lawyers at the Justice Department wrote a series of highly implausible legal memos from 2002 to 2007, opining that waterboarding, sleep deprivation, confinement in coffinlike boxes, painful stress positions and slamming people into walls were not torture; were not cruel, inhuman or degrading; and did not violate the Geneva Conventions.

The same can be said for President George W. Bush, Vice President Dick Cheney and all the cabinet-level officials responsible for national security, each of whom signed off on a program that was patently illegal. The reality is, no one in a position of authority said no.

This may well explain the committee’s focus on the C.I.A. and its alleged misrepresentations. The inquiry began as a bipartisan effort, and there is no way that the Republican members would have agreed to an investigation that might have found fault with the entire leadership of the Bush administration.

But while the committee’s framing may be understandable as a political matter, it was a mistake as a matter of historical accuracy and of moral principle. The report is, to date, the closest thing to official accountability that we have. But by focusing on whether the program worked and whether the C.I.A. lied, the report was critically misleading. Responsibility for the program lies not with the C.I.A. alone, but also with everyone else, up to the highest levels of the White House, who said yes when law and morality plainly required them to say no.

Foley partner files response to SCOTUS regarding unorthodox amicus brief //Legal Ethics Forum

Legal Times reports that in a rare order the U.S. Supreme Court ordered a lawyer to show cause why he should not be disciplined for filing a bizarre and inscrutable petition dictated by his German inventor client.
Click through for an interesting exchange between John Steele and Stephen Gillers. I read about half the brief. Basically Paul Clement (Conservative Uber lawyer) says he is writing a brief that the client has dictated against his attorney's advice.  If RPC 1.1 Competence means anything it means that you can refuse to do something that makes no sense. You have no obligation to make a fool of yourself.  Clients who want to do that should go pro se or unrepresented. - gwc
Legal Ethics Forum: Foley partner files response to SCOTUS regarding unorthodox amicus brief
Howard Shipley, of Foley & Lardner, responded to the order from SCOTUS that he explain the unorthodox amicus brief that he had filed on behalf of an apparently demanding and idiosyncratic client in a patent case. The amicus brief was jargon-filled, odd in its rhetorical style, and full of super-condensed references. It also suggested that the client was a significant author of the piece -- which SCOTUS guidelines suggest should not be included in briefs.
Shipley's response, available below, politely affirms the right of Shipley to file such an amicus brief and suggests that a technical error (i.e., acknowledging the client's participation in the drafting) should not be grounds for sanctions. (h/t: How Appealing)
What I find particularly interesting is the way that Shipley's response, authored by Paul Clement, discusses the balance between the lawyer's duties to the client and to the court.

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Saturday, February 21, 2015

Law School Survival Strategy From a Former Dean: Cut Tuition by 50%

TaxProf Blog: Law School Survival Strategy From a Former Dean: Cut Tuition by 50%
by James Huffman (former Dean - Lewis & Clark Law School)

****As someone who promoted all of the above as a law school dean and benefited from it all as a law professor, it pains me to acknowledge that during my nearly four-decade career legal education, I abandoned frugality for profligacy. Some of the rise in cost resulted from program expansions in response to a plethora of new legal specialties and from steady pressure from the American Bar Association for more training in lawyering skills that requires a much lower student-faculty ratio.

But the core factor in the escalating cost of legal education is that the guild of law school professors long ago captured the combined regulatory apparatus of the American Bar Association (ABA) and the AALS. We law professors have constructed a legal education model that, first and foremost, serves faculty interests—higher salaries, more faculty protected by tenure, smaller and fewer classes, shorter semesters, generous sabbatical and leave policies and supplemental grants for research and writing. We could not have done better for ourselves, except that the system is now collapsing.

With a new business model, a quality legal education could be provided at half of today’s average tuition. Here are a few suggestions for how to do it:
* Cut faculty numbers in half by requiring faculty to devote most of their time to teaching
* Eliminate tenure and take advantage of a highly competitive market for law professors.
* Reduce law school from three to two years
* Stop the facilities arms race.
* Take greater advantage of online instruction technologies.




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Statement from UNC Law Faculty: Centers housed at UNC Law

Le plus ca change...  If we get a Republican President and Congress....
At the root of this is an attack on liberal law professor Gene Nichols.
- gwc
Statement from UNC Law Faculty: Centers housed at UNC Law
"A Statement from UNC School of Law Faculty in response to the recommendation by a working group of the UNC Board of Governors to close the UNC Center on Poverty, Work, and Opportunity, and narrow the activities of the Center for Civil Rights.

 We, the undersigned members of the UNC School of Law Faculty, write in opposition to the recent recommendation of a working group of the UNC Board of Governors (BOG) to close the Center on Poverty, Work, and Opportunity, and we stand in support of the advocacy work of the Center for Civil Rights in the face of a pending suggestion that it narrow its activities. Both of these centers are housed at the UNC School of Law. The recommendation
 to close the Poverty Center, if implemented, will deprive North Carolinians of critical research and education on poverty; chill academic freedom and inquiry; and hurt our law students who desperately need and greatly benefit from the real-world experience that interning there provides. Moreover, the proposal by some members of the BOG working group that the Center for Civil Rights be prohibited from suing the state or its political subdivisions – the usual defendants in civil rights suits – would fundamentally curtail its important work on behalf of marginalized groups. We urge the Board of Governors not to accept the working group’s recommendations regarding these Centers."

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Obama's seductive love for America | xpostfactoid

Andrew Sprung is in my opinion the best analyst of President Obama's rhetoric.  In the wake of Rudy Giuliani's despicable remarks Sprung reminds us that Barack Obama has always portrayed a very generous vision of American history - far more rosy than I would. - gwc
Obama's seductive love for America | xpostfactoid
from President Obama's first inaugural address

For that is the true genius of America - that America can change. Our union can be perfected. And what we have already achieved gives us hope for what we can and must achieve tomorrow. This election had many firsts and many stories that will be told for generations. 
But one that's on my mind tonight is about a woman who cast her ballot in Atlanta. She's a lot like the millions of others who stood in line to make their voice heard in this election except for one thing - Ann Nixon Cooper is 106 years old. She was born just a generation past slavery; a time when there were no cars on the road or planes in the sky; when someone like her couldn't vote for two reasons - because she was a woman and because of the color of her skin. 
And tonight, I think about all that she's seen throughout her century in America - the heartache and the hope; the struggle and the progress; the times we were told that we can't, and the people who pressed on with that American creed: Yes we can. At a time when women's voices were silenced and their hopes dismissed, she lived to see them stand up and speak out and reach for the ballot. Yes we can. 

When there was despair in the dust bowl and depression across the land, she saw a nation conquer fear itself with a New Deal, new jobs and a new sense of common purpose. Yes we can. When the bombs fell on our harbor and tyranny threatened the world, she was there to witness a generation rise to greatness and a democracy was saved. Yes we can. She was there for the buses in Montgomery, the hoses in Birmingham, a bridge in Selma, and a preacher from Atlanta who told a people that "We Shall Overcome." Yes we can.

A man touched down on the moon, a wall came down in Berlin, a world was connected by our own science and imagination. And this year, in this election, she touched her finger to a screen, and cast her vote, because after 106 years in America, through the best of times and the darkest of hours, she knows how America can change. Yes we can. America, we have come so far. We have seen so much. But there is so much more to do. So tonight, let us ask ourselves - if our children should live to see the next century; if my daughters should be so lucky to live as long as Ann Nixon Cooper, what change will they see? What progress will we have made? 
This is our chance to answer that call. This is our moment. This is our time - to put our people back to work and open doors of opportunity for our kids; to restore prosperity and promote the cause of peace; to reclaim the American Dream and reaffirm that fundamental truth - that out of many, we are one; that while we breathe, we hope, and where we are met with cynicism, and doubt, and those who tell us that we can't, we will respond with that timeless creed that sums up the spirit of a people: Yes We Can. Thank you, God bless you, and may God Bless the United States of America. 
See more at:
http://xpostfactoid.blogspot.com/2015/02/obamas-seductive-love-for-america.html#more

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