Wednesday, August 16, 2017

Fordham University Statement on Charlottesville

University Statement on Charlottesville
Dear Members of the Fordham Family,
You have likely heard of the ugly events that took place in Charlottesville on Saturday. Fascism, Nazism, and Racism were literally on the march, and at this point we know of one person killed and at least 19 injured, believed to be the victims of the action of a deluded and hateful member of the racist mob that gathered in Charlottesville for a white supremacy rally. I know you join me in mourning both the woman who was killed, and the two police officers who died when their helicopter crashed that afternoon. Our thoughts and prayers are with their families, and with the people who were injured and their loved ones.
I am a historian, and I can assure you that the marchers, and almost certainly the person who drove into the crowd of peaceful demonstrators, are on the wrong side of history (I say “almost” because it is still possible, if unlikely, that the act was unintentional). I believe that rights for people of color, LGBT people, Jewish people, immigrants—and all of the would-be targets of Saturday’s marchers—will continue to expand and be protected in our country. If this incident has a silver lining, it is the swift, bipartisan rejection of the marchers’ rhetoric, beliefs, goals and actions.
As a priest, as a university president, and as a human being, my heart goes out to the intended targets and victims of the march, victims who number in the millions, and who include marginalized people everywhere, and anyone who cares about decency, compassion, and justice. Fordham University stands against everything the marchers represent—the hate, the bigotry, the profound ignorance, the casual cruelty, and the violent and vicious expression of those views. Such ideas and sentiments have no place in a civilized society, and of course are completely antithetical to both the Gospel values and Jesuit beliefs that have always guided the University.
I know many of you will not be back on campus for another ten days or so: the University will certainly support events for members of the University community who wish to come together for reflection and prayer in the wake of the events in Charlottesville.
Finally, to those who feel targeted by the Charlottesville marchers, know that the Fordham community supports you and is here for you. Though it may not seem so in moments like this, decency and compassion do prevail. We will get though this trying time together.
Joseph M. McShane, S.J

Tuesday, August 8, 2017

Environment, Law, and History: Tort and environmental regulation

Environment, Law, and History: Tort and environmental regulation

Tort and environmental regulation

by David Schorr
Douglas Kysar recently posted "The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism", which, among other things, takes issue with the supposed inability of tort law to deal with complex environmental issues; or as the New York Court of Appeals put it in the leading case of Boomer v. Atlantic Cement Co., "the judicial establishment is neither equipped... nor prepared to lay down and implement an effective policy for the elimination of air pollution".

Kysar argues that "rather than common law litigation being displaced by more sophisticated regulatory approaches, the latter instead may well have depended on the former for their sophistication", and backs up his claim with a case study (in order not to spoil the suspense in his article, after the jump):

In Renken v. Harvey Aluminum (Incorporated), 226 F. Supp. 169 (1963) (there are a number of reported decision in this dispute), the plaintiffs (after much interesting drama) won a judgment ordering the polluter to install specific pollution control technology. Later, Kysar reports, the plaintiffs' lawyers were turned to for their expertise in implementing the "best available technology" standard at the heart of federal environmental legislation.
Judge John F. Kilkenny
Judge Kilkenny of the Federal District Court of Oregon did not, Kysar writes,
let the potential “publicness” of the issues distract him. His opinion remains tightly focused on the particular relationship of wrongdoing at bar and he does not fret over whether the remedy ordered could more effectively be promoted through legislative or administrative means. Such a focus is critical, for tort law and regulation are complements rather than substitutes—an idea all too often forgotten in the debate over how best to govern the causes and consequences of environmental, health, and safety threats

Donald Trump: Chickenhawk in Chief - The Atlantic

Donald Trump: Chickenhawk in Chief - The Atlantic
by James Fallows

Donald Trump: Chickenhawk in Chief - The Atlantic

Donald Trump: Chickenhawk in Chief - The Atlantic
by James Fallows

Urban myth: Were Vietnam vets really insulted when they returned? -

Donald Trump, a chickenhawk, is making vitriolic attacks on Sen.Richard Blumenthal for placing himself among those who "returned" from Vietnam.  And suffered from derision and insult.
Such self-aggrandizement is offensive.  Blumenthal got deferments (as did I - M.  And then suffered insults.  There is NO EVIDENCE of such events.  As an activist against the war in Vietnam I do not recall a single word spoken against the troops.  They were, of course draftees.  And we were all subject to the draft.  We did denounce the war and tactics like carpet bombing, use of napalm, strategic hamlets, deforestation via agent orange, and the entire effort as a neo-colonial sequel to the French suppression of a legitimate movement for national independence.
Blumenthal’s Words Differ From His History -
In an interview, Jean Risley, the chairwoman of the Connecticut Vietnam Veterans MemorialInc., recalled listening to an emotional Mr. Blumenthal offering remarks at the dedication of the memorial. She remembered him describing the indignities that he and other veterans faced when they returned from Vietnam.
“It was a sad moment,” she recalled. “He said, ‘When we came back, we were spat on; we couldn’t wear our uniforms.’ It looked like he was sad to me when he said it.”
Ms. Risley later telephoned the reporter to say she had checked into Mr. Blumenthal’s military background and learned that he had not, in fact, served in Vietnam.

Monday, August 7, 2017

Fordham's labor relations difficult

Saturday, August 5, 2017

"Lock her up" the Trump fans cheered at Thursday evening's Trump rally in West Virginia. The bases of this ugliness are complex. Whites have long acquiesced in segregation and blatant discrimination against Black people. But no such tolerance is shown for affirmative action. At Fordham we definitely look to recruit
minority students and faculty. African American and Hispanic faculty are well represented and strongly credentialed. But we are below the norm on student body diversity.

Why? Fordham is a competitive school admitting about 1/3 of applicants. Median LSAT scores of matriculated J.D. students are about 165 - in the top 10% of test takers. That sharply limits the number of minority students because as explained below, few score very high. - gwc
"Students seeking admission to the nation's highest-ranked law schools such as Yale, Harvard, and Stanford have a mean LSAT score of about 170. Data obtained by JBHE from the Law School Admission Council shows that very few blacks nationwide score at this level.
In 2004, 10,370 blacks took the LSAT examination. Only 29 blacks, or 0.3 percent of all LSAT test takers, scored 170 or above. In contrast, more than 1,900 white test takers scored 170 or above on the LSAT. They made up 3.1 percent of all white test takers. Thus whites were more than 10 times as likely as blacks to score 170 or above on the LSAT. There were 66 times as many whites as blacks who scored 170 or above on the test.
Even if we drop the scoring level to 165, a level equal to the mean score of students enrolling at law schools ranked in the top 10 nationwide but not at the very top, we still find very few blacks. There were 108 blacks scoring 165 or better on the LSAT in 2004. They made up 1 percent of all black test takers. For whites, there were 6,689 test takers who scored 165 or above. They made up 10.6 percent of all white students who took the LSAT examination.
The nation's top law schools could fill their classes exclusively with students who scored 165 or above on the LSAT. But if they were to do so, these law schools would have almost no black students."…/51_graduate_admissions_test.html

Tuesday, August 1, 2017

MDL panel reluctant to consolidate cases

Prosecutors rarely punished

She Was Convicted of Killing Her Mother. Prosecutors Withheld the Evidence That Would Have Freed Her.

Sunday, July 30, 2017

Is the Republican Effort to Destroy the ACA Dead?

Balkinization: Is the Republican Effort to Destroy the ACA Dead? by David Super No. That question can be asked from a procedural perspective, a political perspective, or a practical perspective, but in each instance the answer is “no”. This post takes each of these points of view, explores the possible future of the Republicans’ efforts against the ACA, and identifies the markers that would actually mean that the assault on the ACA is finished.

Cassidy-Graham Amendment Would Cut Hundreds of Billions from Coverage Programs, Cause Millions to Lose Health Insurance | Center on Budget and Policy Priorities

The GOP just does not think that healthcare is a right. -gwc
Cassidy-Graham Amendment Would Cut Hundreds of Billions from Coverage Programs, Cause Millions to Lose Health Insurance | Center on Budget and Policy Priorities 
Senators Bill Cassidy (R-LA) and Lindsey Graham (R-SC) have introduced an amendment to the GOP health bill that they describe as focused on state flexibility and equalizing payments across states rather than cuts.[1] But the amendment would make drastic cuts to both Medicaid and marketplace financial assistance
Specifically, the Cassidy-Graham amendment would:
  • Eliminate premium tax credits and cost-sharing reductions that help moderate-income marketplace consumers afford coverage and care, and eliminate the ACA’s enhanced match for Medicaid expansion starting in 2020.
  • Replace the marketplace subsidies (premium tax credits and cost-sharing reductions) and Medicaid expansion funding with a block grant set at levels well below what would be provided under current law.  States apparently could use these funds for a broad range of health care purposes, not just coverage, with essentially no guardrails or standards to ensure affordable, meaningful coverage.  After 2026 block grant funding would end altogether.
  • Maintain the Senate bill’s provision to convert virtually the entire Medicaid program to a per capita cap, with large and growing cuts to federal funding for seniors, people with disabilities, and families with children.  
As a result of these provisions, the Cassidy-Graham proposal would:
Make deep cuts to federal funding for coverage programs.  Block grant funding in 2020 would be $26 billion, or 16 percent, below projected current law federal funding for Medicaid expansion and marketplace subsidies.  The block grant would grow by only 2.0 percent annually, well below medical cost inflation and even general cost inflation.  By 2026, block grant funding would be $83 billion, or 34 percent, below projected current law federal funding.  States would be forced to sharply scale back coverage as these block grants became increasingly inadequate. 
Moreover, the formula for how much states receive under the block grant would move federal funding from expansion states to non-expansion states, deepening the percentage cuts to funding for expansion states. That would punish states that have been most successful at enrolling low- and moderate-income people in coverage since the ACA’s major coverage expansions took effect.  In fact, Senator Graham said on the Senate floor that funding for California, a state that with a highly effective state-based marketplace and a successful Medicaid expansion, would eventually be cut by 38 percent.  The amendment appears designed to pick winners and losers, rather than guarantee states the funding they need to cover their residents’ needs.  Also, because the funding is conditional on meeting certain criteria related to states’ per capita income, population density, and Medicaid expansion status, some states (such as Florida, North Carolina, and Virginia) would be excluded from between 45 and 70 percent of the funding outright. 
Crucially, funding would end altogether after 2026, leaving states with massive holes in their budgets and no choice but to further reduce access to coverage.

NFL ends concussion research partnership $16 million short of $30 million commitment

NFL ends concussion research partnership $16 million short of $30 million commitment
Back in 2012, the NFL made a heavily publicized $30 million commitment to the National Institute of Health to fund concussion research, which the league wanted the public to see as a commitment it was taking head safety in football seriously.
But as ESPN’S Outside the Lines reported this week, that partnership is set to expire next month even though the NFL — which is projected to reach $14 billion in revenue this year — failed to give the NIH $16 million of the promised funds. In other words, the league fulfilled less than half of its obligations to the NIH.
“The NFL’s agreement with [the funding arm of the NIH] ends August 31, 2017, and there are no current research plans for the funds remaining from the original $30 million NFL commitment,” the NIH said in a statement.
The relationship between the NFL and the NIH has been a contentious one from the start. In 2015, Outside the Lines reported that even though the gift had reportedly been unrestricted, the NFL restricted the NIH from using $16 million of its $30 million grant to fund a Boston University study on the degenerative brain disease chronic traumatic encephalopathy (CTE), a progressive brain disease thought to be caused by repeated subconcussive hits to the head.

Saturday, July 29, 2017

An impeachable offense: Trump Calls For ‘Rough’ Policing, Gives Blessing To Law Enforcement Abuses – Talking Points Memo

Inciting police to violate the rights of persons in custody is an impeachable offense.
Constitution of the United States of America:

Article II, Section 1 "Before he enter on the execution of his office, he shall take the following oath or affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
Article II, Clause 3 the President "shall take care that the laws be faithfully executed".

Trump Calls For ‘Rough’ Policing, Gives Blessing To Law Enforcement Abuses – Talking Points Memo
"The address, in Brentwood, New York, was ostensibly meant to address the violence propagated by the MS13 gang. But, amid repeated raucous cheering and “thank yous” from the officers in attendance, Trump veered into several extended monologues on the value of being “tough.”
Toward the end of his remarks, the President gave a chilling example of what he meant.
“When you see these towns, and when you see these thugs being thrown into the back of a paddy wagon, you just see them thrown in, rough,” he said, referring to the arrest of alleged gang members. “I said, please don’t be too nice.”
“When you guys put somebody in the car and you’re protecting their head, you know, the way you put their hand over,” he mimicked an officer putting a handcuffed person in the back of a squad car, the officer’s hand over the suspect’s head. “Like, don’t hit their head and they’ve just killed somebody? Don’t hit their head?”
“I said, you can take the hand away, OK?” he concluded, to laughter, and then loud applause.
That sentiment characterized much of the red meat speech, in which Trump contrasted himself frequently to his predecessor.
“We have your backs 100 percent,” Trump said near the beginning of his remarks. “Not like the old days."

Thursday, July 27, 2017

Fallows: The shame of John McCain

Tuesday, July 25, 2017

Trump jugen: Boy Scout Jamboree speech

Trump's speech to Boy Scouts: fake news, crowd size and New York's hottest people

Sunday, July 23, 2017

The Impeachable Offense - Lawfare

The entire discussion at the 1787 Constitutional Convention on the suject of impeachment:
The clause referring to the Senate, the trial of impeachments agst. the President, for Treason & bribery, was taken up.
Col. Mason. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined— As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He movd. to add after "bribery" "or maladministration". Mr. Gerry seconded him—
Mr Madison So vague a term will be equivalent to a tenure during pleasure of the Senate.
Mr Govr Morris, it will not be put in force & can do no harm—  An election of every four years will prevent maladministration.
Col. Mason withdrew "maladministration" & substitutes "other high crimes & misdemeanors" <agst. the State">
On the question thus altered
N. H— ay. Mas.— ay Ct. ay. (N. J. no) Pa no. Del. no. Md ay. Va. ay. N. C. ay. S. C. ay.* Geo. ay. [Ayes—8; noes—3.]
The Impeachable Offense - Lawfare
by Charles L. Black, Jr.

Editor's Note: In 1974, a law professor named Charles L. Black published an extraordinary brief volume, entitled, Impeachment: A HandbookIt is the finest text on the subject I have ever read. With the subject of impeachment on many people's minds these days, we received permission from Yale University Press to republish the portion of Black's book that discusses the parameters of the impeachable offense. I also asked Jane Chong to write an essay applying the lessons of Black's book to our time. I recommend that readers take the time to read Black's book in its entirety, along with Jane's exceedingly thoughtful treatment of its importance in the age of Donald Trump. 
—Benjamin Wittes

Tribe, Painter, Eisen....He cannot pardon himself

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