Friday, July 21, 2017

Miller v. Davis - counsel fees awarded against defiant County Clerk

Torts Today: Miller v. Davis - counsel fees awarded against defiant County Clerk

How White House Threats Condition Mueller’s Reality - Lawfare

How White House Threats Condition Mueller’s Reality - Lawfare
by Benjamin Wittes, Quinta Jurecic, Jane Chong
What does the world look like today if you’re Robert Mueller? 
You’ve got a huge, sprawling, immeasurably complicated job, and the President of the United States has just put you on notice of what you already have long suspected: You may not have much time.
A pair of stories published last night by the New York Timesand Washington Post announced that the White House is looking to “undercut” Mueller’s investigation and is “scouring” for information on potential conflicts of interest on the part of Mueller’s team. The stories describe a systematic effort to comb through the backgrounds of Mueller and his office in the hope of finding material damaging enough to merit firing Mueller, requesting the recusal of members of his team, or at the very least discrediting the independent investigation in the eyes of the public.
Inverting the Pyramid: In a normal complex criminal investigation, the prosecutor starts at the bottom of the organizational pyramid and works his or her way up. The prosecutor indicts the drug runners, flips them, goes for the middle managers, flips them, and continues to use each layer to go after the one above—eventually targeting the people at the very top.
A prosecutor investigating the President of the United States, who’s threatening in two ways to nuke the investigation, might not feel the luxury of working up from the bottom of the pyramid. Such an approach takes time, after all. The bottom of the pyramid involves a lot of people whom the president, unlike a crime boss, can pardon. Notwithstanding the fact that pardoned individuals can be compelled to testify, a broad pardon eliminates much of the prosecutor’s leverage in obtaining the truth—leverage that relies on the criminal jeopardy of the underlings. And quite uniquely among criminal investigative subjects in the federal system, the President can also fire his own prosecutor, meaning that time may not be an available commodity. In an environment in which Trump is openly toying with both of these steps, the prosecutor may be tempted to invert the pyramid and focus on presidential conduct first.

Proposed Draft Legislation Clamps Down on Soil Pollution in China | Latham & Watkins LLP - JDSupra

Proposed Draft Legislation Clamps Down on Soil Pollution in China | Latham & Watkins LLP - JDSupra
On 22 June 2017, Chinese legislators released draft proposals to combat soil pollution in China at a bimonthly session of the Standing Committee of the National People’s Congress. The legislation complements the State Council’s ambitious plan to address soil pollution – an area not specifically covered by Chinese environmental law at present. Both  the Council’s plan and the corresponding draft legislation are a response to a series of highly publicised incidents, including one in Jiangsu Province where nearly 500 school students fell ill after exposure to contaminated soil. These incidents have focused public attention on the issue of soil contamination, which had previously received little attention due to the more obvious air pollution issues in Chinese cities.
The proposed law is similar to the United States Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), in that the law requires landowners to investigate soil contamination where it is identified and imposes liability for soil contamination cleanup on the parties responsible for the pollution — or, if the responsible party cannot be found, on the landowner. The proposed law also establishes a pollution cleanup fund for situations in which the responsible party or landowner either cannot be located or lacks the funds to pay. In cases where the contamination occurred prior to the passage of the new law, a landowner held responsible may also apply to the cleanup fund for reimbursement of the remediation costs. In addition, the proposed law calls for regulators to establish tax benefits for soil remediation, standards for soil monitoring, reporting of contamination data, limits on the release of hazardous substances on farmland, and for more stringent environmental impact evaluations of construction projects (including the prohibition of construction on polluted land until the land has been remediated to the applicable standard).
Pollution of farmland is subject to particularly heavy penalties under the proposed law, including fines of up to CNY2 million ($US297,000). These penalties likely are a response to various surveys, including a 2014 government report that concluded 19.4% of China’s farmland is contaminated with heavy metals. Factories found to have illegally discharged pollutions may be subject to seizure or forced to cease operations and, as with the Environmental Protection Law passed in 2014, government officials who fail to enforce the provisions of the proposed law would be subject to administrative penalties. According to Luo Qingquan, the deputy head of the NPC’s environment and resources protection committee, the condition of soils in China is “grim” because soil is the “ultimate receptor” of air and water pollution and can lead to the contamination of food grown in such soil. The Ministry of Environmental Protection has allocated a budget of CNY14.6 billion ($US2.1 billion) this year to fund soil remediation projects, but given the vast acreage of affected farmland already found to be contaminated, addressing the problem on a nationwide scale could cost up to CNY1 trillion.

Monday, July 17, 2017

China’s Evolving Case Law System In Practice | Supreme People's Court Monitor

Image result for tsinghua university school of law
In a new article in the Tsinghua China Law Review Susan Finder, a leading student of the Supreme People's Court, demonstrates the transformation under way in how case law is used by judges in the People's Courts.

Unlike our Supreme Court - whose principal tools are Rules, and case by case analysis, the SPC has a wide range of tools at its disposal.  Guiding cases, model cases, interpretations, responses to inquiries, guidances, etc.
This is not as declaration of judicial independence. Rather it should be understood as a consolidation of power - means for the SPC to bring consistency and improvement to China's massive legal system.  Use of case law is an inevitable product of the increasing transparency  of judicial decisions.  It is best understood as neither a common law system nor a civil law system - despite the civil law roots of China's legal system.

The evolving approach is the product of borrowing but also recognition that the power of the internet is transformative. Directed to post all decisions, the imperative drive to treat like cases alike produces mechanisms that draw on the huge accumulating body of decision-making.  - gwc

China’s Evolving Case Law System In Practice | Supreme People's Court Monitor//
by Susan Finder
***The SPC, carrying out its function to supervise and guide the lower courts, unify the application of law, and improve the quality of justice, selects and publicizes certain of its own cases and those of lower courts in a variety of forms. Guiding cases, about which there is a rich literature in Chinese and English, rank first. As noted above, this article focuses on the role of non-guiding cases and therefore the principal forms through which the SPC makes known non-guiding cases are listed below.
• Cases published in the monthly SPC Gazette (最高人民法院 公报), which take two forms: selected judgments (裁判文书选登) and cases (案例), generally totaling 20-30 annually. The first type are cases decided by various trial divisions of the SPC and reflect their views on certain issues, while the second are model cases submitted by the local courts (through the provincial high courts), which have been reviewed by various divisions of the SPC. The cases, which have been edited, contain a summary of the important points of the case (裁判摘要). However, there are no formal publicly-available criteria for selection. These cases are now accessible on the SPC’s website.

• Cases published by publications of the SPC such as:
* Selection of People's Court Cases (人民法院案例 选), a monthly publication of the China Institute for Applied Jurisprudence, affiliated with the SPC;
* China Case Trial Highlights (中国审判案例要 览 ), an annual publication of the National Judicial College and the Renmin University of China Law School.

• China Court Annual Cases (中国法院[2016]年度案例), a publication of the National Judicial College’s Case Development Research Center, now with an online platform. The cases that the editorial team from the National Judicial College selected for publication in China Court Annual Cases are also edited and contain an added section called “important points (要旨) following the theory that readers would prefer something easy to read and useful” . • People's Justice: Cases (人民司法——案例). People's Justice is a biweekly publication affiliated with the People’s Court Daily (人 民法院报), but the Cases section is published monthly. The cases published in the Selection of People’s Court Cases are edited and contain a summary of the “important points (要点)” of the case.

Sunday, July 16, 2017

Political Economy of Mass Incarceration

Thursday, July 13, 2017

Silver conviction overturned

Wednesday, July 12, 2017

DJT, Jr. Meeting probably did not violate campaign finance law. ~Jed Shugerman

Iran will not disintegrate. … Lobelog

Tuesday, July 11, 2017

Sunday, July 9, 2017

Iran is a nation where power changes hands peacefully.

Friday, July 7, 2017

Richard Rorty was right

Tuesday, July 4, 2017

Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass? - Lawfare

Lawfare's Jane Chong carefully reviews the opinions generated by the Office of Legal Counsel in the Department of Justice.  That unit advises the President on matters of legality - particularly constitutionality.  Its opinions over the years inform her assessment of the current position of the Justice Department and the stances take by the 119 Members of Congress and others who have sued Trump asserting violations of the foreign emoluments clause. - gwc
Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass? - Lawfare
by Jane Chong (Deputy Managing Editor - Lawfare)

I wrote last November that the Foreign Emoluments Clause “is on its face a national security provision designed to the protect the country from officers too enmeshed with foreign interests.” If the Justice Department’s recent court filing is to be believed, that protection is exceedingly limited. This new position marks a decisive break from the more conscientious approach long espoused by both the Comptroller General and the Office of Legal Counsel (OLC).
At the heart of the emoluments controversy is President Trump’s refusal to liquidate his business holdings. He has instead maintained ownership of the Trump Organization, a multibillion-dollar umbrella company with thousands of domestic and international investments, and placed the assets in a revocable trust managed by his sons Donald Trump, Jr. and Eric Trump. Trump now faces three lawsuits alleging that he is profiting from his business empire in violation of the Constitution. Three days after his inauguration, Citizens for Responsibility and Ethics in Washington (CREW), a government accountability watchdog group, filed the first suit in the Southern District of New York. This month, two more complaints were filed by the attorneys general of Washington D.C. and Maryland and 196 congressional Democrats, in federal district courts in Maryland and the District of Columbia, respectively.
All three suits center on the meaning and scope of the Foreign Emoluments Clause, which provides that “no person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept any present, Emolument, Office or Title of any kind whatever, from any King, Prince or foreign state” (U.S. Const. art. I, § 9, cl. 8). Citing Trump's business dealings with state governments and federal agencies, such as its lease on the Old Post Office Building that now houses the Trump International Hotel, two of the suits also allege violations of the Domestic Emoluments Clause. This provision applies specifically to the president and provides that he shall receive “for his Services” a fixed compensation during his tenure and not “any other Emolument from the United States, or any of [the states]” (U.S. Const. art. II, § 1, cl. 7).

Foreign Emoluments: how has the OLC understood it?

Sunday, July 2, 2017

Impeachable Offense: "I Don't Care About My Dignity"

Balkinization: "I Don't Care About My Dignity"
by Gerard Magliocca (Indiana University Law School)

Articles of impeachment vs. Andrew Johnson
Article Ten concluded with the following:
Which said utterances, declarations, threats and harangues, highly censurable in any, are peculiarly indecent and unbecoming in the Chief Magistrate of the United States, by means whereof the said Andrew Johnson has brought the high office of the President of the United States into contempt, ridicule and disgrace, to the great scandal of all good citizens, whereby said Andrew Johnson, President of the United States, did commit, and was then and there guilty of a high misdemeanor in office. 

Saturday, July 1, 2017

My Father’s War, and Mine - The New York Times

As a member of the class of 1967 at Holy Cross College I had options to avoid going to war.  It was easy  I was about to marry and we were headed to the Peace Corps and India.  A double exemption with a one year 1-Y to follow while getting a master's degree.  So I did not face the tension Hammet describes.
My Father’s War, and Mine - The New York Times
by Theodore Hammet
I can’t pinpoint what changed my mind. Probably, it was the relentless escalation, the rising death toll and all the destruction with no clear objective. It was increasingly hard for me to envision being a Marine in Vietnam; instead, I could see myself in the lyrics of Bob Dylan’s “Chimes of Freedom,” covered by the Byrds on their first album, in the summer of 1965: “Flashing for the warriors whose strength is not to fight.” It began to dawn on me that if the songs I was listening to were right, then the war must be wrong.
In the class of 1967, we all had to make choices about Vietnam. The privilege of attending Harvard brought many opportunities to avoid the war, including exempt occupations, doctors’ letters (often phony), influence on draft boards and six-month reserve enlistments. These, together with acts of opposition — registering as a conscientious objector, going to jail, fleeing to Canada — meant that only about 40 of my classmates — out of about 1,200 in our freshman class — served in Vietnam, and only two were killed. A total of 22 Harvard men died in the Vietnam War compared with almost 700 in World War II, including two of my father’s roommates.
During a long argument on the telephone in the spring of 1966, I told my father that I was against the Vietnam War and was going to withdraw from the Marine Corps. “You’re spitting on everything I believe in,” he replied angrily.
My father went to war with pride and returned to a hero’s welcome. He and his generation helped to save the world. Since I returned from Vietnam for the first time in 1969, I have become even more convinced that our war there was terribly wrong. Still, I accepted and actually wear the Marine Corps lapel pin given me by my former platoon commander at a Basic School reunion in 2015. I have grown able to appreciate both those who bravely served in Vietnam and those whose actions against the war helped end it sooner than it might have otherwise.
I do not claim to have made the most honorable choices about Vietnam. In 1966 and 1967, I was young and confused and gave in to doubt and fear. If I had it to do over again, I hope I would have been truer to my principles and refused to serve in Vietnam. Over the ensuing years, I argued heatedly with my father about the war, and we never agreed. At the end of one argument, he said that “we’ve come to a parting of the ways.” This was not literally true. I continued a somewhat troubled relationship with him until his death.

The Time I Got Recruited to Collude with the Russians - Lawfare

The Time I Got Recruited to Collude with the Russians - Lawfare
by Matt Tait
I read the Wall Street Journal’s article yesterday on attempts by a GOP operative to recover missing Hillary Clinton emails with more than usual interest. I was involved in the events that reporter Shane Harris described, and I was an unnamed source for the initial story. What’s more, I was named in, and provided the documents to Harris that formed the basis of, this evening’s follow-up story, which reported that “A longtime Republican activist who led an operation hoping to obtain Hillary Clinton emails from hackers listed senior members of the Trump campaign, including some who now serve as top aides in the White House, in a recruitment document for his effort”:
Officials identified in the document include Steve Bannon, now chief strategist for President Donald Trump; Kellyanne Conway, former campaign manager and now White House counselor; Sam Clovis, a policy adviser to the Trump campaign and now a senior adviser at the Agriculture Department; and retired Lt. Gen. Mike Flynn, who was a campaign adviser and briefly was national security adviser in the Trump administration.
I’m writing this piece in the spirit of Benjamin Wittes’s account of his interactions with James Comey immediately following the New York Times story for which he acted as a source. The goal is to provide a fuller accounting of experiences which were thoroughly bizarre and which I did not fully understand until I read the Journal’s account of the episode yesterday. Indeed, I still do not fully understand the events I am going to describe, both what they reflected then or what they mean in retrospect. But I can lay out what happened, facts from which readers and investigators can draw their own conclusions.

Wednesday, June 28, 2017

Torts Today: Unlocking the Mysteries of Trump v. International Refugee Assistance It's All About that Stay (and Its Surprising Limits) | Take Care

Torts Today: Unlocking the Mysteries of Trump v. International Refugee Assistance It's All About that Stay (and Its Surprising Limits) | Take Care

What Happened in Hernandez v. Mesa? - Lawfare

What Happened in Hernandez v. Mesa? - Lawfare
By Andrew Kent
 Tuesday, June 27, 2017, 2:23 PM
During a back-and-forth on Lawfare with Steve Vladeck a few months ago, I suggested that Hernandez v. Mesa, pending at the Supreme Court this term, had the potential to generate a very important opinion: the Fourth Amendment issue in the case could impact the legality of worldwide extraterritorial national security activities by the U.S. government like electronic surveillance and drone strikes.
Hernandez arose out of the deadly shooting of a Mexican national in Mexico by a U.S. border patrol agent standing in the United States. Under a Supreme Court case dating back to 1990, also arising in Mexico, the Fourth Amendment does not protect noncitizens located outside the United States, unless they have some pre-existing substantial, voluntary connection to the United States. The deceased in Hernandez lacked any such connection.
But the Court’s 2008 decision in Boumediene v. Bush, applying the Constitution’s Habeas Suspension Clause to the noncitizen detainees at the Guantanamo base, arguably overruled a bright-line approach to determining the Constitution’s applicability beyond U.S borders. Instead, the Court applied totality of the circumstances analysis. Using Boumediene, the plaintiffs’ counsel in Hernandez, among whom is Steve, argued that the Court could rule for their clients on the applicability of the Fourth Amendment without opening the entire can of worms about extraterritorial national security activities. This was possible, they suggested, because like Guantanamo—Cuban sovereign territory, but leased permanently and controlled exclusively the by U.S. government—the Mexico-U.S. border area is a sui generis territory. This border, they argued, was a liminal zone of shared control with constantly traversing populations, and therefore wholly unlike purely foreign territory.
I was skeptical that the border was truly so unique and that a Fourth Amendment ruling for the plaintiffs could be cabined and limited so neatly.
On Monday, the Court vacated and remanded Hernandez to the Fifth Circuit, declining to rule on the merits of the Fourth Amendment. It avoided this constitutional issue, the Court told us, because “[t]he Fourth Amendment question in this case . . . is sensitive and may have consequences that are far reaching.” This per curiam opinion was issued for Chief Justice Roberts and Justices Kennedy, Alito, Sotomayor, and Kagan. Along the way the Court made important statements about Bivens (more below) and qualified immunity.
Justice Thomas concurred, saying he would have ruled for the border patrol agent on Bivens grounds. Justice Breyer, joined by Justice Ginsburg, dissented, essentially adopting the plaintiffs’ view of the Fourth Amendment. Justice Gorsuch did not participate, as he was seated after oral argument.
What can we glean from the per curiam’s treatment of the Fourth Amendment? We know that five justices seized the opportunity to duck the issue for now. They did so by directing the Fifth Circuit to apply the Court’s new decision in Ziglar v. Abassi on the availability of Bivens, before reaching the merits.