Sunday, January 25, 2015

The ACA provision that should kill King v. Burwell | xpostfactoid

The ACA provision that should kill King, updated | xpostfactoid:
by Andrew Sprung

The ACA provision discussed below, which directs the federal as well as state exchanges to report to the Treasury tax credits provided to ACA private plan buyers, is treated in full in the United States of America's Brief for Respondents.   Submitted by the Solicitor General, joined by the Solicitor of Labor, and the General Counsel of the Treasury Department and the Department of Health and Human Services, the government brief emphasizes the overall design of the Affordable Care Act, its objectives, and the care subsidies crucial role in making the mandated insurance reforms financially viable.  Remember that the key structure - mandatory coverage - requires that premiums not only be affordable but that they be sufficient for insurance companies to be able to cover the greatly increased number of insured persons - and to achieve the broader coverage and lower deductibles and co-pays afforded by the ACA's Silver and Platinum policies, as well as mandated coverages such as birth control, preventive screenings, etc. - gwc

 Ever since a three-judge panel of the D.C. Circuit Court found in Halbig v. Burwell that the ACA only authorizes subsidies to be paid for health insurance bought in state-run exchanges, not in state exchanges set up by the federal government, progressive reporters have been ransacking the record to  prove what they always knew: that the law's creators never intended to exclude federally run exchanges from the subsidy regime.  Today, Greg Sargent and Jonathan Cohn both published compelling circumstantial evidence to that effect. It seems to me, though, that such circumstantial evidence should be unnecessary. The ACA includes a provision that ought to settle the issue -- on that the majority in Halbig egregiously misread. Health law scholar Timothy Jost highlighted the dispositive provision back in September 2011, two months after the IRS issued a rule spelling out that subsidies would be available through the federal exchange (at which point the brains behind the Halbig suit, Michael Cannon and Jonathan Adler, immediately began arguing in print that the IRS rule contradicted the ACA's text). With reference to the drafting error stipulating only that subsidies be credited through an exchange "established by a state," Jost asserted:
we do not need to rely on the courts to correct this error. Congress corrected it itself. Four days after Congress passed the Patient Protection and Affordable Care Act, it enacted the Health Care and Education Reconciliation Act of 2010. Section 1004 of HCERA amended section 36B(f) of the IRC to impose on exchanges established under section 1311(f)(3)—that is, state exchanges—and under section 1321(c)—that is federal exchanges, the obligation to report to the IRS and to the taxpayer information regarding tax credits provided to individuals through the exchange. In this later-adopted legislation amending the earlier-adopted ACA, Congress demonstrated its understanding that federal exchanges would administer premium tax credits. 
In a subsequent post, Jost noted, "As a later-adopted statute, HCERA would take precedence over PPACA if there were a contradiction."
***read more***

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Fr. Richard McBrien, theologian, has died | National Catholic Reporter

Fr. Richard McBrien, Catholic theologian
Richard McBrien - the Notre Dame voice of  progressive Vatican II Catholicism in America has died.  A longtime columnist for National Catholic Reporter, he found diocesan paper after paper dropping his essays as the pinch of John Paul II and Benedict XVI was felt.
Rather than celebrate as heroic the U.S. Conference of Catholic Bishops adherence to the papal bar on artificial contraception, the embrace of mandatory priestly celibacy, and renunciation of female ordination Fr. McBrien never trimmed his conscience to fit current Vatican fashion.
We have lost a voice and must hope that Pope Francis's heart and Jesuit savvy last long enough to turn the doctrinal tide that has for fifty years been running in favor of a crabbed and cramped Catholicism. - gwc
Fr. Richard McBrien, theologian, has died | National Catholic Reporter:
"Fr. Richard McBrien, who as a scholar brought distinction to a university theology department and who as an author and often-interviewed popular expert explained the Catholic church to the wider world, died early Sunday morning. He was 78. McBrien had been seriously ill for several years and had moved recently from South Bend, Ind., to his native Connecticut. 

It would be difficult to find a figure comparable in making understandable to a broad public the basic beliefs and traditions of the Roman Catholic church. For more than three decades, he was the star of the theology faculty at the University of Notre Dame and the go-to voice on all matters Catholic in the popular press. 

His books, particularly Catholicism, Lives of the Popes and Lives of the Saints, were staples of libraries, Catholic and non-Catholic alike. At his peak in the 1980s and ’90s, it is arguable that McBrien had a higher media profile than anyone in the Catholic church other than Pope John Paul II. He was the ideal interview: knowledgeable, able to express complex ideas in digestible sound bites, and utterly unafraid of controversy.***
“I don’t hold things back,” McBrien said in a 1990 profile by the Chicago Tribune, adding in a rare moment of understatement: “I’m outspoken.”
Unabashedly on the progressive side of most Catholic debates, McBrien advocated the ordination of women priests, an end to mandatory celibacy for priests, moral approval of artificial birth control, and decentralization of power in the church. In so doing, he helped to define the battle lines within Catholicism over the legacy of the Second Vatican Council (1962-65).
He was a former president of the Catholic Theological Society of America and former chair of the theology department at the University of Notre Dame. To fans both inside and outside the theological guild, McBrien was a double icon. He lifted the status of Catholic theology, and American Catholic theology in particular, by his media visibility and literary accomplishment. He also cheered the liberal wing of the church by lending intellectual heft to its reading of Vatican II.

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Saturday, January 24, 2015

China's Supreme Prosecutor's Office - Guiding Cases China Law Translate | 高检关于案例指导工作的规定

China Law Translate | 高检关于案例指导工作的规定:
China's central government prosecutors struggle to find means to more effectively manage their sprawling public safety and security domain.  Taking a page from the Supreme Peoples Court the Supreme People''s Procuratorate they have embraced the "guiding case" model.Its 2010 guidance explains:
Article 15: After guiding cases are released, all levels of people's procuratorate may consult them in implementation.
Article 16: Where the procurator undertaking case handling feels that a guiding cases should not be applied when handling a case of the same type or disposing of a problem of the same type, he shall submit an opinion in writing and report the situation to the chief procurator or procuratorial committee for a decision.
Set Five summarizes three cases of robbery and homicide.

Thanks for all this to China Law Translate

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Court Denies Disqualification Motion- sees issues clearly //Legal Ethics Forum

Legal Ethics Forum: Court denies DQ motion; sees the issues clearly
The New York Supreme Court (New York County) denied a DQ motion filed after a joint defense representation fell apart. The joint rep letter was well written and contained lots of warnings and a good explanation of the consequences of a falling out. The court realized that granting the motion would effectively prevent clients from safely entering into joint defense agreements even when it helped the clients. All in all, a job well done by the trial court. Bonus: the New York court cited California's Zador v. Kwan. (h/t: Law Firm Risk Management Blog)
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Friday, January 23, 2015

The GOP `No Go Zone' - GOPlifer

With Steve King and Citizen United's Iowa Freedom Summit upon us it will be interesting to measure the GOP stand-up performers by how they approach the GOP No Go Zone.  Jeb Bush and Mitt Romney found other places to be but all the other usual suspects have been rounded up.  - gwc
Four inescapable realities - GOPlifer
by Chris Ladd

It is possible to win an election in a way that makes it impossible to govern. Republicans have been doing this for years, at mounting cost. The crux of the problem is an electoral appeal based almost entirely on paranoia and premised on denial of certain basic, observable realities.
Regardless what happens in any future election, Republicans will not regain the capacity to form intelligent, relevant public policy until we can grapple with four realities. Each item on this list is measurable, provable and broadly regarded as obvious. Failure to acknowledge these four truths means being as categorically, empirically wrong as it’s possible to be in the otherwise mushy, gray realm of politics:
1) Climate change is real and it is caused primarily by human activity.
2) Human beings evolved from simpler life forms, and the same evolutionary process shapes all living systems.
3) Abortion is a complex issue because it involves two legitimate liberty interests in conflict with one another.
4) Race still skews economic outcomes in the United States.
With great care and a willingness to avoid exposure to facts, an adult can carry on a reasonably competent existence while living in denial of these four realities. However, no one incapable of recognizing these obvious truths is qualified to serve in a public leadership capacity of any significance. Like a poorly aimed weapon, any legislation or executive action crafted in defiance of these truths will, at best, yield unnecessary collateral damage. In many cases, it will reap calamity.
Unfortunately, there is almost no corner of America in which a Republican can survive a primary election while openly acknowledging all four of these truths. As a consequence, however mistaken a Democratic policy may be, it is likely to be less damaging at the national level than a Republican alternative for as long as this condition persists (it’s worth noting, however, that Democrats have their own issues with #3).
None of those four realities dictate a particular policy response. Acknowledging these irrefutable realities would not force Republicans to abandon market economics, embrace abortion or violate any of the party’s traditional tenets. Some of these truths might be politically uncomfortable, but it is possible to devise policy responses to each of them that are entirely in line with traditional Republican agendas.  The Republican Party stubbornly refuses to acknowledge these realities because the party has developed over the past twenty years a purpose completely divorced from effective public administration.
A largely white, rural and Southern demographic bloc for whom the faster, freer world of global capitalism is a living nightmare has transformed the Republican Party into a bulwark against reality. Those who continue to look to religion not only to provide meaning, but to define their reality, are in a broad general state of panic that seems likely to continue until an older generation has seen their influence dissipate. They are determined to ensure that no government action of any kind, no matter how necessary for the protection of your interests or theirs, will in any way challenge the brittle, manufactured reality on which their mental security depends.
Republicans of a previous generation helped grant us this world. Republicans of this generation are determined to roll it back at all costs. If they must fail, they are content to see it all burn to the ground rather than confront a world of pluralism, accelerating change, and endless uncertainty.
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Thursday, January 22, 2015

PowerPoint Justice | The Marshall Project

Building on its 2012 decision in State v. Glassmann the Washington Supreme Court in State v. Walker reverses a murder conviction based on prejudicial power point slides used in summation.  A concurring opinion carefully analyses the prosecutor's missteps. The court reverses on grounds of plain error because the defense attorney failed to object. Another discussion of similar prosecutorial conduct is below. - gwc
PowerPoint Justice | The Marshall Project
by Ken Armstrong
"In Washington state earlier this month, in [State v. Herbin]  the Court of Appeals threw out a murder conviction based on shoddy work by the defense. But the court also took the prosecutor to task for something even stranger: a bad PowerPoint presentation.
The prosecutor had dressed up her closing argument to the jury with a series of slides, complete with “sound effects and animation,” the appellate court wrote. On one slide, footprints materialized across the bottom of the screen. Other slides exhibited “concentric rings of a target,” with each ring corresponding to an item of evidence; the defendant’s name, Sergey Fedoruk, was in the bull’s-eye. The prosecution’s final slide, the pièce de résistance, opened with a header that said “Murder 2.” Then, under the header, a single word flashed, in all capital letters, in 96-point red type:
GUILTY



h/t Legal Ethics Forum
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Will the Charges Against Sheldon Silver Hold Up?

Sheldon Silver, in custody
Updated
The Times reports today that the asbestos-related cancer physician at the center of the federal charges against New York Assembly speaker Sheldon Silver is Robert N. Taub.  Columbia University on Friday closed the mesothelioma center he has directed. Accepting the allegations in the complaint the U.S. could well persuade a jury that Taub bribed Silver by offering to refer potentially lucrative asbestos cancer cases to Silver's law firm- in anticipation of favorable action by Silver in his capacity as speaker.  But Silver was the U.S. target.  Taub was promised immunity in exchange for his cooperation.

The United States Attorney in New York has indicted State Assembly Speaker Sheldon Silver.  He is charged with depriving the people of the state of his honest services - i.e. using his official position for personal gain.  Federal jurisdiction is obtained under the wire fraud act 18 USC 1343 which former prosecutor, now Senior Judge Jed Rakoff once called "our stradivarius".

There are two sets of transactions addressed in the complaint (above) is that Silver received income from a law firm that handled certain real estate matters regarding which Silver did no work.  Those appear to be referral fees for tax appeal work he steered to attorney Jay Arthur Goldberg - not charged but named as a co-conspirator. Silver got 25% of the contingent fee, according to the Times report.

The other claim is that Taube - named as "Doctor 1" in the complaint  - referred asbestos product liability cases to Silver who was "of counsel" to Weitz Luxenberg - a leading firm in the field.  It alleges that Silver reciprocated by directing two grants of $250,000 to Taub's research program.

The Complaint refers to the income in both categories as "referral fees".  But it seems to me that though the characterization appears to fit the undisclosed real estate fees, it does not accurately describe Silver's income from Weitz Luxenberg.

Behind the Weitz Luxenberg fees according to the complaint are the demands of the physician who heads up the asbestos-related mesothelioma treatment program at the giant Columbia Presbyterian Medical Center.  "Doctor 1" reported to be Robert N. Taub, who serves as director of the Columbia University Mesothelioma Center.  He could steer his fatally ill patients and their families to lawyers but did not include among the beneficiaries of his referrals Weitz Luxenberg - leading practitioners in the field - because Weitz did not contribute to mesothelioma research projects.

In 2003  Doctor 1 began referring cases to Weitz.  He soon applied to Silver who was then associated with the Weitz firm.   Silver as Speaker controlled a discretionary health fund.  In 2005 Silver approved a $250,000 research gran to study the effects of release of asbestos dust in the 2001 World Trade Center catastrophe.  In 2007 a second $250,000 grant to the University was issued, allegedly at Silver's initiative.  No further grants were made, though Silver helped direct $25,000 in state funding to a non-profit on which a relative of Doctor 1 served.  Referrals to Silver's firm continued though diminished into 2010.
The New York Joint Appellate Rules Governing Professional Conduct of lawyers like ABA Model Rules, RPC 1.5 (c) (1) permits division of lawyers between lawyers "who are not associated in the same firm" only "in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation", and (2) the client agrees to the arrangement, including the share each lawyer will receive and the agreement is confirmed in writing".  The undisclosed real estate fee income apparently does not meet the RPC requirements.
But the personal injury contingent fees appear to be a different matter because Silver is a salaried lawyer "associated" as of counsel in the firm.  It is a commonplace for lawyers to divide fees within a firm giving substantial weight to the lawyer who introduced the source of business to the firm.  According to the complaint that appears to be the case here.
- gwc




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Christeson v. Roper - lawyer's conflict of interest merits reversal in death case

SUPREME COURT OF THE UNITED STATES
MARK A. CHRISTESON v. DON ROPER, WARDEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 14–6873. Decided January 20, 2015
 PER CURIAM.
 Petitioner Mark Christeson’s first federal habeas petition
was dismissed as untimely. Because his appointed
attorneys—who had missed the filing deadline—could not
be expected to argue that Christeson was entitled to the
equitable tolling of the statute of limitations, Christeson
requested substitute counsel who would not be laboring
under a conflict of interest. The District Court denied the
motion, and the Court of Appeals for the Eighth Circuit
summarily affirmed. In so doing, these courts contravened
our decision in Martel v. Clair, 565 U. S. ___ (2012).
Christeson’s petition for certiorari is therefore granted,
the judgment of the Eighth Circuit is reversed, and the
case is remanded for further proceedings. ***

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Tuesday, January 20, 2015

Report of the Commission on Inclusive Prosperity | Center for American Progress

Report of the Commission on Inclusive Prosperity
This is the economic philosophy behind President Obama's State of the Union speech. - gwc
Report of the Commission on Inclusive Prosperity | Center for American Progress
by Lawrence Summers and Ed Balls
"History tells us that societies succeed when the fruits of growth are broadly shared. Indeed, no society has ever succeeded without a large, prospering middle class that embraced the idea of progress. Today, the ability of free-market democracies to deliver widely shared increases in prosperity is in question as never before.
The primary challenge democracies face is neither military nor philosophical. 'Rather, for the first time since the Great Depression, many industrial democracies are failing to raise living standards and provide opportunities for social mobility to a large share of their people. Some of those countries that have produced economic growth have done so in a manner that has left most of their citizens no better off.
This is an economic problem that threatens to become a problem for the political systems of these nations—and for the idea of democracy itself. The citizens of industrial democracies continue to value their freedom and their opportunity to participate in the task of self-government. But they also count on their political systems to create circumstances in which they can use their talents and their labor to provide a decent standard of life for themselves and their families.
When democratic governments and market systems cannot deliver such prosperity to their citizens, the result is political alienation, a loss of social trust, and increasing conflict across the lines of race, class, and ethnicity. Inclusive prosperity nurtures tolerance, harmony, social generosity, optimism, and international cooperation. And these are essential for democracy itself."
read more

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It's Looking More Like a BP Settlement Over Gulf Disaster - Bloomberg

It's Looking More Like a BP Settlement Over Gulf Disaster - Bloomberg
By Margaret Cronin Fisk and Laurel Brubaker Calkins Jan 20, 2015 

Last week’s ruling that BP Plc (BP/)’s Macondo well dumped less oil into the Gulf of Mexico than the U.S. government claimed may trigger a settlement before a decision on the amount it must pay after a trial set to begin this week. A federal judge determined on Jan. 15 that the penalty will be based on the size of the spill being 3.19 million barrels, about 25 percent less than estimated by the government. 
That ruling, which was followed by a 5.3 percent jump in BP shares, reduced the potential maximum pollution fines for the 2010 spill to $13.7 billion from $18 billion and increased the incentives for a settlement. “There’s a very good chance -- about 75 percent -- that they’ll settle,” said David Berg, a Houston trial attorney who has been following the litigation. 
Even if the case doesn’t settle before a trial verdict, BP probably won’t face a maximum fine against BP, Berg said. The range will likely be from $8 billion to $10 billion, he said. Even a fine of that size would be the largest civil penalty under the Clean Water Act, according to the Environmental Protection Agency. The current record is the $1 billion settlement Transocean Ltd. (RIG), which owned the Deepwater Horizon drilling rig that burned and sank in the Gulf spill, reached with the U.S. in 2013."

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Bobby Jindal, WTF? GOPLifer |

As I entered the law school yesterday Bobby Jindal was saying the usual stupid stuff about "political correctness", the dangers of "Sharia law", etc.  This is how you get the white racist vote in Louisiana, I guess.  - gwc
Bobby Jindal, WTF?  GOP Lifer
by Chris Ladd
"Why do smart Republicans say stupid things? It’s the central political question of our era and it demands an answer. In London Monday Bobby Jindal built an entire speech on the idiotic premise, already disavowed by Fox News, that European cities include sections specifically ceded to Islamic extremists. 
That isn’t even the dumbest thing he said. He repeated all the usual racist tropes about how Muslims fail to “disavow” violence, implying rather strongly and ignorantly that they do not. He also launched into a surprising diatribe about the mortal danger posed by immigrants who refuse to “assimilate.” 
There are only two credible explanations for this speech. Either Jindal is an idiot in the Michele Bachmann mold, or he is making a cynical, calculated career decision to abandon credibility in pursuit of power. 
 Let’s be absolutely clear – Bobby Jindal is not stupid. He’s a Brown University graduate in Biology who went on to complete a degree at Oxford as a Rhodes Scholar. Jindal has in the past flirted with the idea of coming out of the closet as a smart person by suggesting once that Republicans should stop saying stupid things. In that speech two years ago he chastised the party for embracing precisely the kind of “identity politics” he so forcefully endorsed on Monday. Being a smart guy he has apparently come to some conclusions about his career. He learned some lessons from his experience trying to be a principled leader."

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Monday, January 19, 2015

Martin Luther King, Jr. on Meet the Press (1965)

M.L. King, Jr. on Meet the Press in 1965.
"There are two types of laws...we have a moral obligation to disobey unjust laws.... Any man who willingly accepts the penalty is at that moment expressing the highest respect for law".

Sunday, January 18, 2015

Reagan Revolution rollback | xpostfactoid

Reagan Revolution rollback | xpostfactoid:
President Obama- speech on the economy December 4, 2013:
"As the trickle-down ideology became more prominent, taxes were slashes for the wealthiest while investments in things that make us all richer, like schools and infrastructure, were allowed to wither. And for a certain period of time we could ignore this weakening economic foundation, in part because more families were relying on two earners, as women entered the workforce. 
We took on more debt financed by juiced-up housing market. But when the music stopped and the crisis hit, millions of families were stripped of whatever cushion they had left. And the result is an economy that’s become profoundly unequal and families that are more insecure. 
Just to give you a few statistics: Since 1979, when I graduated from high school, our productivity is up by more than 90 percent, but the income of the typical family has increased by less than 8 percent. Since 1979 our economy has more than doubled in size, but most of the growth has flowed to a fortunate few. The top 10 percent no longer takes in one-third of our income; it now takes half. Whereas in the past, the average CEO made about 20 to 30 times the income of the average worker, today’s CEO now makes 273 times more." 
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Why the Oscars’ Omission of ‘Selma’ Matters - NYTimes.com

David Oyelowo plays Martin Luther King.  Ava DuVernay directed "Selma"
Why the Oscars’ Omission of ‘Selma’ Matters - NYTimes.com
by David Carr
Monday is Martin Luther King Jr. Day and given the context, it is an interesting moment to ask whether it really matters that the Motion Picture academy failed to nominate the black director and the black lead actor of “Selma,” the King biopic, for Oscars.

After all, it lands fairly low on the list of indignities visited on African-Americans: No unarmed people died, no innocent citizens were patted down or jailed.

But yes, it still matters. The news continues to be full of all manner of pathology and victimization involving black Americans, and when a moment comes to celebrate both a historical giant and a pure creative achievement, it merits significant and broad recognition.

Many would say that it should suffice that “12 Years a Slave,” a film by a black director about black history, won best picture last year, and “Selma” was nominated this year, and that any grievance is a conjured one. I disagree.
The director of “Selma,” Ava DuVernay, is a black woman who found the studio backing to make a movie that is great cinema, not a history lesson. And no club in the United States — over the last several years, the academy has beenaround 93 percent white, 76 percent male and an average of 63 years old — is in more need of new blood than Hollywood. The academy tends to recognize the body of work of directors, not just a single film, and this is just Ms. DuVernay’s third narrative feature, so that may have played a role.
read more

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Why don't white moderates speak up? Kentucky Teenage Suspects Arrested In Florida After Crime Spree

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With white on white crime rampant... Why don't southern white Christians speak up about the deep problems in white Christian culture? - gwc
Kentucky Teenage Suspects Arrested In Florida After Crime Spree"
By ASSOCIATED PRESS
JANUARY 18, 2015
PANAMA CITY BEACH, Florida (AP)
— Two teenage sweethearts suspected in a crime spree of stolen vehicles and pilfered checks across the U.S. South have been taken into custody in Florida, Kentucky authorities said Sunday. Grayson County Sheriff officials said in a statement that 18-year-old Dalton Hayes and his 13-year-old girlfriend, Cheyenne Phillips, were arrested without incident about 12:10 a.m. Sunday in Panama City Beach. The two had eluded police in multiple states while raising concern about their increasingly bold behavior."

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War on Gaza: A promise Israeli politicians can keep | +972 Magazine

War on Gaza: A promise Israeli politicians can keep | +972 Magazine
 "As they head into elections, Netanyahu, Livni, Herzog, Lapid and Yishai can agree on one thing: even after nine military operations in 14 years, the only solution to the conflict with Gaza is another war with Hamas.
 By Yonatan Mendel"

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Cutting Transom Angles | Boatbuilders Site on Glen-L.com


Cutting Transom Angles | Boatbuilders Site on Glen-L.com: "Figuring out how to cut the angle on a transom can be a little challenging. Joshua Burks is currently building our Zip which is a 14′ runabout that has a 12 degree angle on the transom as do many of our designs. Joshua is documenting his build with video. He’s done a really good job at walking us through his build and explaining what he does. You can see all his videos on his You Tube Chanel. The second video pertains to today’s article about cutting the transom angles. One of the considerations is how much material to add to the transom to allow for the angle. We have explained how this is done in a formula and photo below, but for those of you who are visual, Joshua’s video is excellent and really shows how much more simple it is than you might think. I hope you enjoy the video:"<
iframe width="640" height="360" src="//www.youtube.com/embed/IQO-eADxEuQ?list=UUB_lceC5yFrMiHLaZTvQyYA" frameborder="0" allowfullscreen></iframe>

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Case law Chinese style–where is it going? | Supreme People's Court Monitor

Case law Chinese style–where is it going? | Supreme People's Court Monitor:
by Susan Finder
On 6 January 2015, case law Chinese style (案例指导制度) made the headlines of the People’s Court Daily and the Supreme People’s Court’s (the Court’s) websites, because the Supreme People’s Court president, Zhou Qiang provided an introduction to a book that the Court is publishing on guiding cases. Universities such as Yale, Stanford, and the City University of Hong Kong as well as institutions such as the European Union have held training programs with Court staff on the case method. Numerous academic conferences have been held on the topic in China. The Communist Party leadership expressed its approval for case law in the 4th Plenum Decision in the following phrase:
Strengthen and standardize judicial interpretation and case guidance, and unify standards of applicable law (加强和规范司法解释和案例指导,统一法律适用标准).

As discussed in this blogpost, the Court’s October, 2013 judicial reform plan flagged the importance of case law in this phrase:
“Expand fully the important role of guiding cases and cases for reference”.

This blogpost will look at how the Court leadership understands Chinese “case law” and how it sees case law to be useful to the judiciary.
read more
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I.R.S., Already Hobbled, Likely to Be Further Damaged - NYTimes.com

I.R.S., Already Hobbled, Likely to Be Further Damaged - NYTimes.com:
The Editorial Board
 "The obsession among House conservatives to hobble the Internal Revenue Service is about to pay off this tax season in foolhardy budget cuts to the agency that will cost the government an estimated $2 billion in lost revenue. That works out to about $6 in lost taxes for every $1 in cuts Congress made in reducing the I.R.S. budget another 3 percent this year, according to the Treasury Department. The slashed budget is a victory for penny-wise-and-pound-foolish politicians. It amounts to payback demanded by House Republicans to penalize the I.R.S. for daring to scrutinize Tea Party operations that tried to claim exemptions under the tax code for nonpolitical groups. Democratic groups trying the same thing were also scrutinized."

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Will the Supreme Court Annihilate One of the Best Tools Against Housing Discrimination? // Economic Policy Institute

Will the Supreme Court Annihilate One of the Most Effective Tools for Battling Racial Segregation in Housing? | Economic Policy Institute

The segregation of low-income minority families into economic and racial ghettos is one cause of the ongoing achievement gap in American education. Students from families with less literacy come to school less prepared to take advantage of good instruction. If they live in more distressed neighborhoods with more crime and violence, they come to school under stress that interferes with learning. When such students are concentrated in classrooms, even the best of teachers must spend more time on remediation and less on grade-level instruction.
The Economic Policy Institute, together with the Haas Institute for a Fair and Inclusive Society at the University of California, have organized a large group of housing scholars—historians and other social scientists—to sign a friend-of-the-court brief urging that housing policies perpetuating segregation should be banned.
The case was filed by the Inclusive Communities Project (ICP), a Dallas civil rights group that had been promoting racial integration in the Dallas area by assisting African American families who were eligible for rent subsidies (commonly known as “Section 8” vouchers) to find affordable apartments in predominantly white neighborhoods. This was difficult to accomplish because so many of the tax-subsidized low-income family housing developments that the Texas Department of Housing approved were located in heavily minority and low-income communities.
Those who defend practices like those of the Texas Department claim that they do not intentionally promote segregation but that developers pick minority and low-income communities for subsidized housing, not to purposely reinforce segregation, but because such communities are convenient for prospective tenants who live nearby.
Convenience should be no excuse, however, for perpetuating segregation. Our brief makes the following argument: historically, the federal, state and local governments have, in concert with each other and with private interests, acted to purposely segregate metropolitan areas by race. Once these patterns of segregation were established by deliberate racial policy, placement of federally subsidized housing (to be occupied predominantly by minority tenants) in already segregated neighborhoods unlawfully reinforces this segregation, even if Jim Crow policies are no longer in effect and no purposeful intent to segregate can be proven. It should be deemed unlawful for government agencies simply to respond to developer proposals without considering their racial impact, because the Fair Housing Act requires these agencies to affirmatively pursue integrated housing. As our brief recounts, a much earlier (1972) Supreme Court decision stated that the Fair Housing Act’s main purpose is to “replace ghettos ‘by truly integrated and balanced living patterns.’” This purpose would be improperly repudiated if the Court were now to permit practices like those of the Texas Department of Housing.
It is unlikely but possible that the Texas case will be settled before the Supreme Court issues its ruling. If so, developers will almost certainly seek another case in which the court will be invited to permit practices that perpetuate segregation, even where a deliberate intent to segregate cannot be proven. Possibly, we may again file a brief, tailored to the facts of a new case. If you are an historian or social scientist who would like to join any future such brief, please let us know atrrothstein@epi.org and steve.menendian@gmail.com.

Bad Blood: Death Penalty Lawyer vs. Texas Court // The Marshall Project

Bad Blood | The Marshall Project
by Maurice Chammah

"On Wednesday, the judges of Texas’ highest criminal court told a defense attorney named David Dow he would not be able to practice in front of them for the next year. The Court of Criminal Appeals decided that Dow had filed a motion to stop the execution of his client, Miguel Angel Paredes, too late, and that since he’d done the same thing in a different case in 2010, he will now be suspended.
Neither the court nor Dow, a professor at the University of Houston Law Center and one of the best known death penalty defense attorneys in the country, will comment publicly. But this move is the latest evidence of an ongoing feud in Texas between lawyers who appeal on behalf of inmates facing executions, Dow chief among them, and the judges who rule on their claims.
On the surface, the fights have been about deadlines, but, as criminal justice blogger Scott Henson described Dow’s relationship with the judges back in 2009, “Basically these folks just don't like each other on a level that transcends any given issue.”
Miguel Paredes was executed last October for a triple murder of gang rivals, committed in 2000. The summer before the execution, he wrote a letter to Dow asking for help, and Dow volunteered — without being appointed to the case — to investigate Paredes’ claims. It took a while owing to Dow’s busy schedule, but he found that Paredes’ original lawyer had called no witnesses at the trial and that Paredes was allowed to waive an early appeal while on anti-psychotic medications.
Dow filed an appeal and a call for a stay seven days before the execution. The court said he should have filed it the day before. The court has explicitly said the deadline is seven days before an execution, but in practice attorneys know that they must have it in eight days before. It wasn’t the first time Dow had clashed with the court over deadlines.*****"
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Saturday, January 17, 2015

Alabama State Constitution of 1901 - Black Voters Disenfranchised // Initial Constitution - Wikisource


Watching Selma the thought occurred to me - where did the County Clerk get the authority to deny the vote?  The Alabama Constitution of 1901 limited the franchise to men, required the poll tax to be paid, and made it a criminal offense (bribery) to pay or advance to another the money to pay the poll tax.  But there was more - much more. -gwc
Alabama State Constitution of 1901/Initial Constitution - Wikisource, the free online library
Article VIII  Suffrage and elections
[Qualified to register]
First. - All who have honorably served in the land or naval forces of the United States in the war of 1812, or in the war with Mexico, or in any war with the Indians, or in the war between the states, or in the war with Spain, or who honorably served in the land or naval forces of the Confederate States, or of the State of Alabama in the war between the states; or,
Second. - The lawful descendants of persons who honorably served in the land or naval forces of the United States in the war of the American Revolution, or in the war of 1812, or in the war with Mexico, or in any war with the Indians, or in the war between the states, or in the land or naval forces of the Confederate States, or of the State of Alabama in the war between the states; or,
Third. - All persons who are of good character and who understand the duties and obligations of citizenship under a republican form of government.
181. After the first day of January, nineteen hundred and three, the following persons, and no others, who, if their place of residence shall remain unchanged, will have, at the date of the next general election, the qualifications as to residence prescribed in section 178 of this article, shall be qualified to register as electors; provided, they shall not be disqualified under section 182 of this Constitution.
First. - Those who can read and write any article of the Constitution of the United States in the English language, and who are physically unable to work; and those who can read and write any article of the Constitution of the United States in the English language, and who have worked or been regularly engaged in some lawful employment, business, or occupation, trade or calling, for the greater part of the twelve months next preceding the time they offer to register; and those who are unable to read and write, if such inability is due solely to physical disability; or,
Second. - The owner in good faith in his own right, or the husband of a woman who is the owner in good faith, in her own right, of forty acres of land situate in this state, upon which they reside; or the owner in good faith in his own right, or the husband of any woman who is the owner in good faith, in her own right, of real estate situate in this state, assessed for taxation at the value of three hundred dollars or more, or the owner in good faith, in his own right, or the husband of a woman who is the owner in good faith, in her own right, of personal property in this state assessed for taxation at three hundred dollars or more; provided, that the taxes due upon such real or personal property for the year next preceding the year in which he offers to register shall have been paid, unless the assessment shall have been legally contested and is undetermined.

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Forgotten Archipelagoes: Wang Yongqing: Unwaveringly March the Path of Socialist Rule of Law with Chinese Characteristics

There has been a lot of tea leaf reading and Kremlinology about this recent article by the Chairman of the CPC's  political-legal commission.  There are calls for turning to China's imperial past, etc.  In my view there is little need for guessing and surmising.  The CP recognizes that as society grows more complex and its structures elaborated the Party's command structures will inevitably weaken.  They are determined to be the Party permanently in power - and effective modernization combined with sentimental patriotic celebration is part of the plan.  - gwc
Forgotten Archipelagoes: Wang Yongqing: Unwaveringly March the Path of Socialist Rule of Law with Chinese Characteristics: "
[This is an article Wang Yongqing 汪永清, the Secretary General of the CCP Central Commission for Politics and Law 中共中央政法委员会, published on the first 2015 issue of Seeking Truth 求是. The original  was translated in cooperation with Rogier Creemers and Jeremy Daum].  
0 The question of the path relates to the whole picture and decides its success or failure. The 'CCP Central Committee Decision concerning Some Major Questions in Comprehensively Moving Forwards Ruling the Country According to the Law' (hereafter simply named “Decision”) passed at the 4th Plenum of the 18th Party Congress, has clearly declared to the country and the world that we will unwaveringly march along the path of Socialist rule of law with Chinese characteristics.***

The core essence of the path of Socialist rule of law with Chinese characteristics is persisting in the leadership of the Chinese Communist Party, persisting in the Socialist system with Chinese characteristics and implementing the theory of Socialist rule of law with Chinese characteristics. The Party's leadership is the most fundamental trait of Socialist with Chinese characteristics, and the most basic guarantee for Socialist rule of law; the Socialist system with Chinese characteristics is the basic institutional basis for a Socialist rule of law system with Chinese characteristics, and it the basic institutional guarantee for comprehensively moving ruling the country according to the law forward; the theory of Socialist rule of law system with Chinese characteristics is the theoretical guidance and academic pillar for the Socialist rule of law system with Chinese characteristics, and the guideline for action in comprehensively moving ruling the country according to the law forward. These three aspects determine and guarantee the institutional properties and progressive orientation of constructing a Socialist rule of law system with Chinese characteristics and constructing a Socialist rule of law country.***

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Chinese Lawyers to Chinese Lawmakers: Let Us Defend Our Clients | ChinaFile

American Bar Association Model Rule of Professional Conduct 8.2 (a) provides "A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge..."

A proposed amendment to the P.R.C. criminal code -  Article 35 - criminalizes statements that "insult" or "defame" a judge after being told to stop.  Such conduct would bring a contempt citation in the U.S.  In In Re Little, 404 U.S. 553 (1972) the defendant represented himself at trial. In his summation he said that the court was biased and had prejudged the case and that he was a political prisoner. 

The trial judge said  that "the Court at this point informed the [petitioner] that he was in contempt as the Court felt that these remarks were very disrespectful and tended to subvert and prevent justice," and further recites that "the Court concludes on the foregoing facts that the conduct of the [petitioner] and the words spoken by him in the presence of the Court were contemptuous, that they reflected on the integrity of the Court and tended to subvert and prevent justice."

The Supreme Court reversed only because Little was not a lawyer and a certain latitude should therefore be allowed.

What is needed in China is a culture of vigorous advocacy and independence.  The good news here is a petition by several hundred lawyers fearful of chilled advocacy.  
Proposed Article 35's prohibitions of insult and defamation  are not outlandish- though limiting language like that of RPC 8.2 (a) would be a good proposal to make. And the proposed punishment is harsh - a  "fixed-term imprisonment of not more than three years, criminal detention, or public surveillance or be fined".  Such prosecutorial and sentencing discretion carries a great risk of abuse.   Needed too is the kind of procedural principle we have developed that requires a hearing before a different judge, notice of the charges, right to counsel, etc. as in Federal Rule of Criminal Procedure 42. - gwc

Chinese Lawyers to Chinese Lawmakers: Let Us Defend Our Clients | ChinaFile:
by Joshua Rosenzweig // Chinese University of Hong Kong
"Since Xi Jinping came to power in late 2012, one of the Chinese Communist Party’s main objectives has been to restore the credibility and authority of its judicial system. Though it might be argued that the best way to achieve this goal would be the promotion of judicial independence and genuine rule of law, indications are that the actual strategy may involve strengthening control over the judicial process and regulating the activities of the various actors therein. One of the main targets appears to be lawyers. Chinese lawyers enter the courtroom knowing that trials in their country are not conducted on a level playing field. In many cases, they find that the prosecutor is not their only adversary and that they are also faced with judges who ignore procedures, restrict the scope of debate, or limit the amount of time available to present defense arguments.*****

Legal Opinion on Article 35 of the Ninth (Draft) Amendment to the Criminal Law

We are a group of legal professionals who care about the rights of lawyers and reform of the judicial system and who have taken note of the draft for the Ninth Round of Amendments to the Criminal Law (hereafter, “draft amendments”) that was published on the website of the National People’s Congress (NPC). After serious study and discussion, we are unanimous in finding major problems with the revisions proposed in Article 35 of the draft amendments. Below, we present our legal opinion on this matter for the reference of the members of the NPC Standing Committee who will decide on these amendments.
Article 35 of the draft amendments would revise Article 309 of the Criminal Law (hereafter, “CL 309”) to the following:
Whoever engages in one of the following acts, and thereby seriously disrupts the order of the court, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or public surveillance or be fined.
(1) Gathering people to stir up trouble in a court or attack the court;
(2) Beating up a judicial officer or participant to the litigation;
(3) Insulting, defaming, or threatening a judicial officer or participant to the litigation after being told by the court to stop;
(4) Engaging in other acts that seriously disrupt the order of the court.”
Compared to the current text of Criminal Law 309, one sees that the draft amendment adds “insulting, defaming, or threatening a judicial officer or participant to the litigation” and “engaging in other acts that seriously disrupt the order of the court” to the circumstances covered under the crime.
We believe that this revision violates two basic principles of the Criminal Law, runs counter to the direction of China’s judicial reform, and would seriously undermine the procedural justice that is an especially prized part of the judicial process.
Our detailed reasoning is as follows:
First, as a matter of legal parlance, “insulting,” “defaming,” or “threatening” are all words of a strongly subjective nature. Different judges and prosecutors in different contexts and under different emotional conditions will use these words in completely different ways, making it very difficult to predict their meaning. As for the fourth item, “engaging in other acts that seriously disrupt the order of the court,” this is an extremely flexible “pocket clause.” We ask: What acts constitute “disruption”? At precisely what degree does “disruption” become “serious”?
This amendment cannot answer these questions, and, therefore, it does not possess the necessary explicitness required of a Criminal Law provision. The principle of nulla poena sine lege (no punishment without legal statute) necessitates that criminal statutes be expressed explicitly to prevent judicial personnel from differential or arbitrary application of the criminal law and thereby protect the freedom and security of the public. At the same time, explicit criminal law provisions enable people to predict whether their behavior has the potential to violate the criminal law and thereby promote law-abiding behavior throughout society.
Second, this amendment violates the criminal law’s necessity principle. Insult, defamation, and threats, as well as other acts that disrupt court order, can all be fully dealt with through things like reprimands, fines, or judicial detention, which have the effect of punishing the behavior without resort to the criminal law. Serious cases of insult or defamation or serious disruption of court order are already covered by appropriate criminal statutes, and threats should not be criminalized if they do not result in consequences. Moreover, considering that the entire trial process is carried out in the presence of court police officers, there is already a full ability to control and resolve any such situations that may arise during the trial. The existing CL 309 statute already establishes a set of criminal circumstances; there’s no need to further lower the threshold for what is considered criminal.
Third, this amendment runs counter to the direction of China’s judicial reforms and does not help to further establish a criminal trial process centered on the trial, in which judges are neutral and prosecution and defense are given equal standing. This amendment, which is flexible and lowers the threshold of what is considered criminal, will make lawyers feel the need to tread carefully, as if they were walking on thin ice. Criminal defense lawyers will be particularly afraid of being faulted at every turn and thus not dare to speak their minds fully at trial in defense of their clients. This will tilt the already unbalanced playing field between defense and prosecution even further in favor of the prosecution. This not only restricts defendants’ right to defend themselves and undermines procedural justice, it also prevents the judicial panel from fully investigating the facts of the case and will ultimately lead to an increase in the rate of wrongful conviction.
Fourth, when we consider the current reality of criminal trials in China, other than conflicts between prosecution and defense, there are a great number of conflicts between judges and defense lawyers. This amendment will make defense lawyers increasingly timid in the face of judges. In an inquisitorial trial system, judges take the leading role in the proceedings. In trial practice, judges are quite often extremely arrogant and bossy toward defense lawyers, interrupting them for no reason as they speak and even depriving them of their rights to defend their clients.
If this amendment becomes law, one can well imagine what the impact will be on the mindset of defense lawyers. A defense lawyer who is servile and obsequious to a judge will inevitably not dare to fully express his or her defense opinions. The hidden consequence will inevitably be as we have already stated above: a restriction of defendants’ right to defend themselves, undermining of procedural justice, and an increase in the rate of wrongful conviction."

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Friday, January 16, 2015

CBO Undercut The SCOTUS Case Against O-Care 68 Times //TPM

CBO Undercut The SCOTUS Case Against O-Care 68 Times:
by Dylan Scott //Talking Points Memo

68. That's how many times the Congressional Budget Office, Capitol Hill's official scorekeeper, ran the numbers on Obamacare while the law was being drafted. And not once, according to a new analysis, did CBO officials give any credence to the legal challenge now being brought by the law's opponents.

In a review for the Scholars Strategy Network, Harvard University's Theda Skopcol scrutinized 68 reports that CBO released during the 2009 and 2010 debate. She was looking for any evidence that Congress intended for the law's subsidies to be available only on state-run exchanges, as the plaintiffs in King v. Burwell argue. If they prevail at the Supreme Court, health coverage for millions in the 36 states using the federal exchange would be at risk.

She didn't find any.

"Throughout hard-fought debates about health reform, lawmakers in both parties looked for ways to save taxpayer money," Skocpol wrote in the report, flagged by Vox's Sarah Kliff. "Partial subsidies would have greatly reduced costs, so the total absence of this kind of analysis among the 68 reports prepared by CBO for the 111th Congress (and its continuing absence in reports done by the next Congress) is the best objective evidence we have that no one in Congress considered premium subsidies restricted to certain states to be either possible or desirable.
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"My body is on fire"- Oklahoma prisoner executed over four justice dissent

It is an odd thing that the people of the states where the largest number of citizens proclaim their devotion to one who was cruelly executed insist on their right to inflict suffering on those few they choose to execute. Last night Oklahoma did that with the nihil obstat of the five conservative Catholics on the Supreme Court.
Charles Warner - convicted of the ghastly killing of an infant - spoke those words" my body is on fire" in his agony before the paralytic drugs took effect, assuring his silence as the untested chemicals burned through his body and killed him.  If retribution is what Oklahomans seek, I suppose they got it.  But if it is loyalty to the Eighth Amendment bar on cruel and unusual punishment that we week I will stick with Justice Sonia Sotomayor and her three dissenting colleagues in Warner v. Gross:
I believe that we should have granted petitioners’ application for stay. The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution. Petitioners have committed horrific crimes, and should be punished. But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death. I hope that our failure to act today does not portend our unwillingness to consider these questions.
- gwc 

Wednesday, January 14, 2015

Fit to be Killed - another Vet with PTSD Executed | The Marshall Project

Vietnam War veteran Andrew Brannan, 66, was executed at 8:33 ET Tuesday in Georgia.
Andrew Brannan
Why don't we recognize that post-combat PTSD is a mitigating factor that should foreclose execution.  Once someone is incarcerated they present no danger to the public and execution is particularly pointless.  The lethal injection happened after the U.S. Supreme Court , Georgia Supreme Court, and the day before, the Georgia Parole Board, all denied requests to stop the execution. - gwc.
Fit to be killed  The Marshall Project
by Eli Hager
In 1998, decorated soldier Andrew Brannan repeatedly shot Sheriff Deputy Kyle Dinkheller while screaming that he was a "goddamn Vietnam combat veteran.”  Yesterday at 7 p.m. EST the state of Georgia put him to death despite evidence he was suffering from Post-Traumatic Stress Disorder when he committed the crime.

His case is similar to dozens of other executions of veterans since the Supreme Court reinstated capital punishment in 1976. In 1986, David Livingston Funchess, a Purple Heart recipient, was the first veteran diagnosed with PTSD to be executed. Funchess, who had been exposed to Agent Orange and became addicted to painkillers and heroin after being treated for a severe injury caused by a landmine explosion, was so traumatized upon his return that he would only sleep in foxholes he dug under his house. In 1974, he murdered two people during a bar robbery."

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