Sunday, September 22, 2019

Conway and Katyal: Trump's breach of trust demands impeachment

That last phrase — “high Crimes and Misdemeanors” — was a historical term of art, derived from impeachments in the British Parliament. When the framers put it into the Constitution, they didn’t discuss it much, because no doubt they knew what it meant. It meant, as Alexander Hamilton later phrased it, “the abuse or violation of some public trust.” 
Simply put, the framers viewed the president as a fiduciary, the government of the United States as a sacred trust and the people of the United States as the beneficiaries of that trust. Through the Constitution, the framers imposed upon the president the duty and obligation to “take Care that the Laws be faithfully executed” and made him swear an oath that he would fulfill that duty of faithful execution. They believed that a president would break his oath if he engaged in self-dealing — if he used his powers to put his own interests above the nation’s. That would be the paradigmatic case for impeachment.

Saturday, September 21, 2019

The U.S. has no rules for when the president is a national security threat - The Washington Post

The U.S. has no rules for when the president is a national security threat - The Washington Post
by Asha Rangappa
"Unfortunately, once a person who is willing to act against the interests of the United States assumes the awesome powers of the presidency, the laws and investigative techniques we use in ordinary national security situations are woefully inadequate. Like the breach of multiple hulls in the Titanic, the mechanisms designed to keep our democracy afloat are giving way one by one."

Wednesday, September 18, 2019

Lewandowski: exemplary examination of a hostile witness by Barry Berke

Corey Lewandowski yesterday joined a rogues gallery of famously hostile witnesses before the Congress.  Like Oliver North (Iran Contra) - examined by Arthur Liman -  former Trump campaign manager Corey Lewandowski was defiant and contemptuous in his testimony before a Congressional committee.  But he met his match in this examination by Judiciary Committee counsel Barry Berke.  HERE it is.

Tuesday, September 10, 2019

Fair trial and free press - New York State Bar Assocation

A hypothetical exploring issues involving the media, law enforcement, lawyers and the courts, with participation by an experienced panel and the audience.
Free for all NYSBA Members & Non-Members

Program Co-Chairs
Sandra S. Baron, Esq. | Resident Fellow, Yale Law School
Anne L. LaBarbera, Esq. | Thomas LaBarbera Counselors At Law PC
J. Elliott Lewis, Esq. | S.I. Newhouse School of Public Communications at Syracuse University

Hon. Albert M. Rosenblatt | Former Associate Judge, New York State Court of Appeals | McCabe & Mack LLP
Rex Smith | Times Union

NYC Program Faculty
Hon. Jenny Rivera | New York State Court of Appeals
Hon. Richard J. Sullivan | United States Court of Appeals for the Second Circuit
Stephen Brown | Manhattan Federal Court Reporter | New York Daily News
David Caruso | Associated Press
Jonathan Dienst | WNBC-TV, New York
Carey Dunne, Esq. | General Counsel | Manhattan District Attorney's Office
Captain Robert Gault | New York Police Department
Pat Hurtado | Bloomberg News
Matthew A. Leish, Esq. | Assistant General Counsel | Tribune Publishing Company
Tina Luongo, Esq. | Attorney in Charge of the Criminal Practice | The Legal Aid Society of New York
Anthony Ricco, Esq. | NYC
Rebecca Rosenberg | New York Post
Anna Skotko, Esq. | Deputy Chief, Appellate Unit | United States Attorney's Office of the Southern District of New York
Mary Kate Tischler, Esq. | Vice President and Associate General Counsel | News Review and Litigation | CBS Law Department

Monday, September 2, 2019

AmericanStudies: September 2, 2019: Academic Labor: Adjunctification

AmericanStudies: September 2, 2019: Academic Labor: Adjunctification:
by Ben Railton
 [Usually around this time I’d be sharing Fall Semester Preview posts. I’m on sabbatical, so no teaching for me this Fall; instead I thought I’d connect Labor Day to issues ofacademic labor this week. Leading up to a special weekend tribute post!]
On the disastrous and dehumanizing trend at the heart of 21st century academia, and what to do about it.
I don’t imagine it’s news to most readers of this blog that over the last couple decades, institutions of higher education in America (and I imagine around the world, but as usual on this blog I’ll focus in this post and series on America) have come to rely more and more fully on underpaid, unbenefited, too often unappreciated, always painfully precarious adjunct and contingent faculty labor. Wherever you look you can find striking statistics in support of that claim, but I would note two examples from the always reliable American Association of University Professors (AAUP): more than half of all faculty appointments are now part-time; and over 70% of all instructional appointments are non-tenure-track (meaning even if they’re not part-time, they don’t allow the instructors the chance of moving toward tenure and stability; such full-time non-tenure-track positions almost always have time limits as well, making them at best a temporary alternative to contingency). That AAUP site lays out the wide range of disastrous and destructive effects of these trends, not just for the faculty members but also for the institutions, for their students, and as a result for all Americans (since the success or failure of our education system affects us all).
I would never want to argue for a hierarchy of those disastrous effects; indeed, it is precisely the combination of all of them that makes adjunctification as destructive (and short-sighted, if it even offers short-term financial benefits which that AAUP site persuasively argues it does not) as it is. But for those of us in the Humanities, one particularly horrific such effect is the dehumanization of our peers and colleagues. I don’t mean simply that adjunct faculty are generally treated as entirely interchangeable and replaceable cogs in a machine, although that is how far too many institutions and administrators (and, yes, tenure-track faculty; that piece was written by my friend and NeMLA colleague, and consistent advocate for adjunct faculty, Angela Fulk) seem to treat them. No, I mean the way that contingency consistently strips away even the most basic layers of human security, such as having a home or having enough food. Such stories of adjunct life might seem extreme, but I would argue the opposite—that they are frequent, if not indeed commonplace, reflections of an extreme system. I also refuse to give any credence to those who would argue that these faculty members should simply do something else for a living—besides being itself an inhuman response to inhuman conditions, that argument represents a destructive distraction from the core issue here: that numerous teachers are living in such conditions in 2019 America.
So what can we do about this unavoidable and awful reality of 21st century higher education? The next few posts in this series will focus on my experiences with some of the ways through which particular communities, from labor unions to scholarly organizations to state legislatures, can help us collectively address and change the realities of adjunctification. But when it comes to us tenure-track or tenured faculty members, it seems to me that the first step is a simple but crucial one: to admit that luck, purely and entirely, is far and away the most important factor in our having such positions compared to our colleagues who do not.

Law at the End of the Day: The G7 Declaration on the Situation in Hong Kong, and China's Response: Two Analyses on the (Re)Construction of New Era Empire from the Coalition for Peace & Ethics

Law at the End of the Day: The G7 Declaration on the Situation in Hong Kong, and China's Response: Two Analyses on the (Re)Construction of New Era Empire from the Coalition for Peace & Ethics: A blog about globalization, governance, law, corporations, religion and culture in changing times.

Saturday, August 31, 2019

The Federalist Society Says It’s Not an Advocacy Organization. We Found Documents Showing Otherwise. - POLITICO Magazine

The Federalist Society Says It’s Not an Advocacy Organization. We Found Documents Showing Otherwise. - POLITICO Magazine

This past March, when the Federalist Society for Law and Public Policy Studies held its 37th annual national gathering for conservative law students, the lineup of speakers and panelists included an impressive number of Republican Party and conservative movement stars.

All four of the conference’s main panels were chaired by active Republican-appointed federal appeals court judges. Amul Thapar—a protégé of Senator Mitch McConnell who “nearly wouldn’t speak” to his own father upon finding out he had voted for Barack Obama, his father said—directed one panel. Edith Jones, a long-time 5th Circuit judge considered too conservative for the Supreme Court by the George H.W. Bush administration, moderated another. Elizabeth Branch, a recent appointee of President Donald Trump to the 11th Circuit and former senior official in the George W. Bush administration, moderated the third panel, while fellow Trump appointee to the 6th Circuit John B. Nalbandian moderated the fourth. And the “keynote” was a “fireside chat” between former GOP Senator Jon Kyl and Arizona Governor Doug Ducey, a fellow Republican. Despite what appears to be an obvious political valence, the Federalist Society and its high-profile members have long insisted the nonprofit organization does not endorse any political party “or engage in other forms of politicaladvocacy,” as its website says. The society does not deny an ideology—it calls itself a “group of conservatives and libertarians”—but it maintains that it is simply “about ideas,” not legislation, politicians or policy positions.

Federalist Society documents that one of us recently unearthed, however, make this position untenable going forward. The documents, made public here for the first time, show that the society not only has held explicit ideological goals since its infancy in the early 1980s, but sought to apply those ideological goals to legal policy and political issues through the group’s roundtables, symposia and conferences.

The question of whether the Federalist Society is properly characterized as a “society of ideas” or a political organization has significant ramifications. The Code of Conduct for United States Judges, a set of guidelines administered by the federal judiciary’s Judicial Conference, was revised earlier this year to bar sitting federal judges from participating in conferences and seminars sponsored by groups “generally viewed by the public as having adopted a consistent political or ideological point of view equivalent to the type of partisanship often found in political organizations.” (The Code does not “explicitly” apply to Supreme Court justices, though they have looked to it in the past.) One former federal judge argued that under the new ethics opinion, the Federalist Society is now a “no-go zone for federal judges.” The Society’s president, Eugene Meyer, responded, calling the former jurist’s argument an “absurd and ludicrous” interpretation of the rule, adding that the Federalist Society has said “time and again” that it is nonpartisan and does not take official policy positions.

But the newly unearthed documents—a 1984 grant proposal and cover letter, written by Meyer on the Federalist Society’s behalf and now housed in the late Judge Robert Bork’s papers at the Library of Congress—provide evidence that the Federalist Society, in contravention of what the new Codestates, in fact “advocates for specific outcomes on legal or political issues.” This suggests that federal judges, by attending Federalist Society events, are transgressing the Code’s new guidelines. Given the importance of active federal judges to the Federalist Society’s long-term goal of reshaping the law, barring them from the society’s events could hamper its continued ability to exert the political influence it has impressively built over decades.

The Federalist Society was founded in 1982 as a small law student group with the goal of bringing conservative and libertarian speakers, and their ideas, to law school campuses perceived to be dismissive of these intellectual traditions. After the Federalist Society held its first national symposium at Yale Law School that year—featuring recent Reagan-appointed federal appeals court judges Bork and Antonin Scalia—Federalist Society student groups started popping up on law school campuses around the country. The organization now boasts more than 65,000 members, and most federal judgeships, clerkships and executive branch legal jobs in Republican administrations are effectively off-limits to nonmembers.
Amanda Hollis-Brusky is an associate professor of politics at Pomona College and author of Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution.
Calvin TerBeek is a Ph.D. candidate in political science at the University of Chicago.

Thursday, August 29, 2019

What that Comey Email Report Really Says - Lawfare

What that Comey Email Report Really Says - Lawfare:
by Benjamin Wittes
The inspector general of the United States Department of Justice says that a witness to gross misconduct by the president of the United States has a duty to keep his mouth shut.

Wednesday, August 28, 2019

Editorial: 'The 1619 Project' is landmark truth telling | National Catholic Reporter

Editorial: 'The 1619 Project' is landmark truth telling | National Catholic Reporter: "Ultimately, my goal is to subvert the common perception of 'black history' as somehow separate from American history and to reinstate it as indivisible from the totality of past social, political and...

Deconstructing 'Sanctuary Cities': The Legality of Federal Grant Conditions That Require State and Local Cooperation on Immigration Enforcement by Peter Margulies :: SSRN

Deconstructing 'Sanctuary Cities': The Legality of Federal Grant Conditions That Require State and Local Cooperation on Immigration Enforcement by Peter Margulies :: SSRN: The term “sanctuary city” has generated more heat than light. The Trump administration has branded certain cities as citadels of lawlessness because those cities have resisted federal attempts to condition receipt of law enforcement funds on cooperation with the full range of immigration enforcement efforts. Pushing back against these federal conditions, cities and other subfederal entities have argued that the untrammeled cooperation that the Trump administration seeks would hinder local law enforcement and promote racial profiling. Neither side acknowledges that the dispute is relatively narrow in scope, since federal and subfederal entities cooperate both tacitly and actively on many immigration-related fronts, from the data entered during routine local police stops to transfers of custody for persons convicted of serious crimes. That reality does not fit the straw figures that dominate the sanctuary city landscape in political debates. However, it informs attempts to resolve the underlying legal issues. This Article assesses the legality of Trump administration conditions on both constitutional and statutory grounds. The Article argues for the constitutionality of 8 U.S.C. §

Tuesday, August 27, 2019

Sidney Rittenberg — Jerome A. Cohen | 孔傑榮(柯恩)

Sidney Rittenberg — Jerome A. Cohen | 孔傑榮(柯恩): By Jerome A. Cohen Yesterday’s wonderful obit in the New York Times was a balanced presentation of Sid’s long and complex life. I especially liked its references to his experiences on both sides of the scourge of mankind — arbitrary detention. Although, soon after his final release from prison,

Monday, August 26, 2019

NJ Appeals Court refuses to enforce law firm's arbitration provision


The Appellate Division of the Superior Court of New Jersey has reinstated a  malpractice claim and fee dispute against a leading firm.  The firm's retainer agreement adopted the rules of the private mediation service JAMS and provided for private arbitration of both fee disputes and malpractice claims against the firm.

A couple of excerpts from the unpublished decision by the three judge panel will capture the heart of the case:

For his part, plaintiff averred in a verified complaint that no one from Sills [Cummis, et al.] "went over the arbitration provision with [him]." He also averred that no one from Sills explained the nature of the costs associated with the arbitration, including that they could "easily exceed $20,000" and could be awarded against him. Nor did anyone from Sills point out that the arbitration fees and costs "greatly exceeded" filing fees for a Superior Court action, or that under the retainer agreement plaintiff could be held liable for Sills' costs and attorneys' fees, depending on how the arbitrator ruled. Plaintiff asserted that had he been "made aware of the inequities and costs associated with proceeding with arbitration, as well as the fact that he was constitutionally entitled to have a jury decide issues related to malpractice, he would have never signed the initial retainer agreement in the form presented by [Sills]," if he signed it at all.

Our holding is narrow. We do not hold that all retainer agreement clauses that mandate  arbitration of legal malpractice claims are per se invalid. Nor do we hold that the "reasonable explanation" required of an attorney by RPC 1.4(c) cannot be contained in the written retainer agreement. Rather, we hold that when an attorney incorporates by reference in a retainer agreement a document that contains material terms concerning mandatory arbitration of legal malpractice claims, does not provide the incorporated document to the client, gives the client no explanation about material terms contained in the document, and asks the client to sign the retainer agreement without reading the incorporated documents, the agreement runs afoul of the RPCs and is invalid. 

Thursday, August 22, 2019

No vicarious liability for husband ~ wife lawyers

New DHS rule defies Flores settlement principles

Rule issued August 22 and titled Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children