Wednesday, August 24, 2016

Donald Trump is right: The election IS rigged (though not in the way he thinks)//Balkinization:

Image result for william lloyd Garrison
Americans are possessed of the strange notion that their Constitution is scriptural.  Mitt Romney even voiced the view that it is divinely inspired.  A more reasoned view is that of William Lloyd Garrison.  The great abolitionist saw it as "a Devil's pact...dripping with blood".  When the enormous blood of the Civil War re-founded the nation  new compromises were struck.  The compromise of 1877 secured white restoration in the deep south while creation of the western rectangular states promised to guarantee a Republican majority in the U.S. Senate.
Today we have in all but name replaced Lincoln's party with a white nationalist party quite like LePen's National Front in France.  The GOP is openly obstructionist and uninterested in governance.  A major portion of the population embraces or tolerates the groundless - e.g. that Barack Obama is a foreign born Muslin; that climate change (if it exists) is not related to human activity.  The great gerrymander and winner take all elections leaves us with no exit.
 The arc of history of which President Obama may bend toward justice but the arc is tilted.
- gwc

 Balkinization: Donald Trump is right: The election IS rigged (though not in the way he thinks)
by Sandy Levinson (UT Austin School of Law)

...we are victimized by our dysfunctional and even "imbecilic" Constitution. It's not only the craziness of, practically speaking, needing to rev up a constitutional convention in order to repeal a statute that made a great deal of sense in 1842 and generates really terrible consequences today; it's also the fact that the insane difficulty of constitutional amendment makes the very idea "unthinkable" among practical and "thoughtful" people as defined by the Washington Beltway and other centers of "thoughtfulness."
And Democrats are so eager to dismiss the ravings of the narcissistic sociopath regarding his own demented notion that the election is rigged--how else could somebody so magnificent actually lose the presidential election--that they/we are unwilling even to lay the basis for the deep critique of the American political system that assures that the election of Hillary Clinton, if the Republicans keep the House, will make, at best, a marginal different domestically, other than saving us from the prospect of a sociopathic president. That will be something to be grateful for, but it won't one whit lessen the overall political and constitutional crisis that faces the country and that most people simply wish to ignore because we have a Constitution that seems to assure there is no way out of it.

Forgotten Archipelagoes: 革 -Of the character 'ge', the Yiijing, ancient military texts and moral concepts

Etymology of Chinese concepts is a way to mine deeply into the culture, to find the resonance and connotaitons of a phrase.  The phrase "gai ge kai fang" 改革开放 reform and opening was the watchword of Deng Xiaoping's stunning departurefrom the straitjacket of Maoist ideology.  Flora Sapio does a brilliant job of exploring the metaphor behind the slogan.  You don't need to know Chinese to appreciate the elegance of her etymology. - gwc
Forgotten Archipelagoes: 革 -Of the character 'ge', the Yiijing, ancient military texts and moral concepts
by Flora Sapio
This is the sequel to an earlier post on 'gaige kaifang', in which I start to examine 'gaige kaifang' by focussing on the character 革 (ge).


My choice to begin the analysis of a concept  from a single character was inspired by various earlier discussions, ranging from attempts to findpossible, different interpretations of on-going trends in Chinese law, to more abstract discussions about the 'friend/enemy divide', attempts to construct an effective reading technique for Chinese texts, and so on. 

It may be argued that 'gaige kaifang', as a concept, is outdated because it is not at the centre of current policy debates, and therefore plays a largely rhetorical, or else a ceremonial function. Ceremonies and rituals, whether they be political ceremonies and rituals or ceremonies and rituals of the civil variety, however, play a lasting and important role in marking the passage through different stages of an organization, and in shaping its identity.

In this post I am focussing on the literal meaning of 革, to avoid constructing an individual interpretation, and then projecting it onto one of the fundamental (and overlooked) structures of Chinese political and legal thought. While examining ge within composites such as geming 革命 is a possibility, I believe that such an examination would separate 革 from the context of gaige kaifang, reform and opening up. ......[read more]

Tuesday, August 23, 2016

End-of-mission statement on China, by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights

End-of-mission statement on China, by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights
It is important to draw a distinction between the achievement of development objectives and the respect for human rights obligations. The two are mutually reinforcing, but they are not synonymous. China’s development attainments are unquestioned, but my task is to consider whether they also translate into ensuring full respect for the human rights of its people.

The most difficult and complex challenge in this respect is to understand how the leading role of the Communist Party can co-exist with the recognition of individual rights and the provision of meaningful accountability mechanisms which are an indispensable element in a human rights framework. The challenge was well captured in the President’s report to the 18th Party Congress in which he said that in order to “strengthen social development” what is needed is “a law-based social management system featuring Party committee leadership, government execution, nongovernmental support and public participation.” The reconciliation of these different dimensions is not easy.
2. Achievements
- See more HERE

Monday, August 22, 2016

Prof. David Cole's oral argument in the Kurdistan Workers Party case.

  His clarity and ability to handle the questions of Justices Scalia and Kennedy is exemplary David Cole - new legal director of the ACLU by Ronald K. Collins //Concurring Opinions
Hang into the end for Prof. David Cole's oral argument in the Kurdistan Workers Party case.  His clarity and ability to handle the questions of Justices Scalia and Kennedy is exemplary. GWC
David Cole - new legal director of the ACLU
by Ronald K. Collins //Concurring Opinions

Now that Professor David Cole has been named the new national legal director for the American Civil Liberties Union, I plan to do several posts on him and some of his views on the First Amendment.
As some may know, David Cole was the main author of the briefs in two landmark flag-burning cases:  Texas v. Johnson (1989); and United States v. Eichman (1990). William Kunstler, who argued both cases, commentedthat as the author of those briefs Cole was “the intellectual architect of the courtroom victories.” (See also Collins & Chaltain, We Must not be Afraid to be Free.)
David Cole likewise argued Reno v. American-Arab Anti-Discrimination Committee (1999) (First Amendment challenge to the selective enforcement of the immigration law against Palestinian immigrants based upon their political associations and activities). National Endowment for the Arts v. Finley (1998) was another First Amendment case Professor Cole argued (First Amendment challenge to NEA’s politically-based denial of federal funding to four performance artists whose works address issues of sexuality, and to the 1990 statutory provision requiring NEA grants to made “taking into consideration general standards of decency.”) He also served on the Advisory Board of The Free Expression Policy Project.
 His most recent book, Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law (2016) (see also his remarks at Politics & Prose Bookstore, April 2016) (YouTube)
* * * * 
For now, let us turn to Professor Cole’s arguments to the Court in Holder v. Humanitarian Law Project (2010), the “material support” to terrorist organizations case.  Below are some selected excerpts from the oral arguments in that case:

Friday, August 19, 2016

Christie rejects bill to automatically register voters - News - NorthJersey.com

Christie rejects bill to automatically register voters - News - NorthJersey.com
Christie vetoes voter registration bills," by The Record's Dustin Racioppi: 
"Governor Christie  vetoed a pair of bills intended to expand voter registration, telling lawmakers in a formal veto message that one of them should be renamed 'The Voter Fraud Enhancement and Permission Act.' The bill proposes automatically registering voters as part of the driver's license application or renewal process, but Christie signaled earlier this week that he would reject it, calling it a 'cocktail for fraud.' Although there have not been any recent confirmed cases of voter fraud in New Jersey, Christie has begun to talk of cheating at the polls. At the same time, Christie's friend Republican presidential nominee Donald Trump continues to warn voters of a 'rigged' presidential election. Trump trails in most polls against Democratic candidate Hillary Clinton."

John Timoney Had the Gall to Change Minds, One Police Department at a Time - The New York Times

John Timoney - the former police chief of New York City, Philadelphia, and Miami-has died at 68.  His voice was one long familiar - New York Irish,  his face and posture another icon - Irish Cop.  Timoney stood tall, was plain-spoken - and patient.  That last trait explains much of his success as Jim Dwyer recounts. - GWC

John Timoney Had the Gall to Change Minds, One Police Department at a Time - The New York Times
by Jim Dwyer
Shorts and sneakers, a T-shirt and a boss: The chief of the New York Police Department turned up at the Police Academy to school some young officers.
“Cuff me,” he instructed them.
Much later, the chief, John F. Timoney, described the episode. “I’m a four-star chief in a gym outfit,” Mr. Timoney said. “I’m not going to let you arrest me.”
He had wriggled, squirmed, locked his arms, squared his shoulders. The officers had struggled to pin his wrists. His point was how hard it could be for officers to subdue and handcuff an uncooperative person, and how easy it could be for them to lose their temper.
“If someone doesn’t want to get arrested, it is going to look ugly, especially to a civilian,” Mr. Timoney said. “Sometimes you have to talk your way out of these things. We have to remind cops, we didn’t hire you to be the toughest guy on the block.”
Brain and body, Mr. Timoney was cop and teacher for more than four decades. He died this week at 68. Years before cellphone and body-cam video showed violent encounters between the police and civilians, Mr. Timoney had run straight at that issue and others as a leader of departments in New York, Philadelphia and Miami. Mr. Timoney had the gall and the gravity to change minds that had been made up.
He would tell trainees about a former partner who beat a robbery suspect to death while Mr. Timoney was on vacation, and how none of the other officers stepped in to stop the pounding. “That’s part of your job,” Mr. Timoney said, and it was what the officers owed the public and one another. He incorporated a duty to intervene into the police regulations in Miami.
Then there was the most common use of lethal force by police officers.
In 1972, New York officers fired 2,510 bullets and killed 66 people. By 2014, there were 288 shots fired and eight people killed.
What happened? Mr. Timoney said that in 1972, the department put restrictions on when officers should shoot their weapons. Within a year, officers were firing about half as many shots....

Obamacare Hits a Bump - by Paul Krugman -The New York Times

There are available fixes - but it may be necessary to fix Congress first. -gwc
Obamacare Hits a Bump - The New York Times
by Paul Krugman

So what’s the problem?

Well, Obamacare is a system that relies on private insurance companies to provide much of its expanded coverage (not all, because expanded Medicaid is also a big part of the system). And many of these private insurers are now finding themselves losing money, because previously uninsured Americans who are signing up turn out to have been sicker and more in need of costly care than we realized.

Smoking Gun Memo Could Bolster Voting Rights Case Against North Carolina

Smoking Gun Memo Could Bolster Voting Rights Case Against North Carolina
by Tierney Sneed//TPM
North Carolina's Republican Party has had an interesting response to a recent appeals court ruling that said a number of voting restrictions passed by the state's GOP legislature were enacted with the intent to discriminate against minorities, specifically African Americans. In their scramble after the ruling, party operatives and local Republican officials have perhaps inadvertently provided more evidence that the restrictions were passed with the intent to discriminate.
The most egregious example was a memo sent by North Carolina Republican Party executive director Dallas Woodhouse to county election officials urging them to continue to push for reductions in voting access, in which he explicitly spelled out a partisan motivation.
The memo came as the state is asking the Supreme Court to reverse the appeal court ruling, and restore for November's election some of the restrictions the appeals court struck down. And it may provide additional fodder for the voting rights advocates fighting the state's restrictions.
“It was stunning and stupid,” Daniel Tokaji, an elections law professor at Ohio State University. “Stunning that somebody would be so brazen about his and the party’s objective, and stupid in the sense it really seems to me to undercut their arguments to get the Supreme Court review that the lawyers had made.”
The state -- now represented by the high-powered Supreme Court advocate Paul Clement, a former solicitor general in the George W. Bush administration -- is currently asking Chief Justice John Roberts to allow it to implement some of the restrictions struck down by the 4th U.S. Circuit Court of Appeals last month. Among other things, North Carolina wants a reversal on the early voting provision -- where the appeals court had invalidated a law that cut back early voting from 17 days to 10.
“If I was their lawyer, I would be absolutely furious,” Tokaji said, of the Woodhouse memo.
In the memo, Woodhouse pushed for the reduction of voting hours, the removal of college campus polling sites and the elimination of Sunday voting.
“Republican Board members should feel empowered to make legal changes to early voting plans, that are supported by Republicans,” he wrote. “Republicans can and should make party line changes to early voting.”
He directed it to Republicans on county election boards, who are currently working out the voting schedules for the extra week of voting put back in place by the appeals court.
“They can comply with the law by just having early voting available for just 17 days but only at county board of elections during business hours,” said Chris Brooks, the legal director of the ACLU of North Carolina who is on the challengers' team of lawyers. “From a practical standpoint that is insane."
More than half the state is expected to use in-person early voting this election, according to a directive the state Board of Elections itself sent out to the counties after the appeals court decision.
Yet, a handful of county officials are doing anything to make early voting -- which is used disproportionately by African Americans -- as inaccessible as possible. Mecklenburg County’s GOP elections board chair Mary Potter Summa said she was “not a fan of early voting” before slashing more than 200 hours from the schedule. Watauga County officials blocked an election site at Appalachian State University and will have only one office for early voting. Dallas Woodhouse’s own cousin, Eddie Woodhouse, tried unsuccessfully to eliminate Sunday voting and remove a site from N.C. State’s campus.
“Many of the jurisdictions feel that they are on the receiving end of a liberal decision that will help Democrats in elections. They are going to do whatever they can to re-enact the laws within the bounds that the court has allowed,” said Nate Persily, an election law professor at Stanford University. “Their resistance is expected, given that they are afraid that the court’s decision will accelerate a Democratic tide in the presidential election.”
But their efforts, coupled with Woodhouse’s memo, may inadvertently make it easier for the the restrictions' legal opponents to prove their point to the Supreme Court.
“In the Supreme Court, there’s usually no introduction of material not in the record of the court below. The Supreme Court generally cannot engage in fact finding,” Rick Hasen, a professor at UC-Irvine School of Law who runs the Election Law blog, said in an email to TPM. “Nonetheless, it would not surprise me for some of the plaintiffs to cite news reports on this to make the claim that this is further evidence of discriminatory intent and that the Fourth Circuit got it right. And the Justices (or their clerks) are no doubt aware of this in any case.”
According to Persily, North Carolina's monkeying with county protocols could invite not just a stay denial, but also a written explanation that backs up the 4th Circuit's findings.
“The critical question is whether the court, whether five members of the court, think it’s important to send a signal to the lower courts and to the jurisdictions on the run up in this election,” Persily said.
Clement did not respond to TPM’s inquiry. But Woodhouse has defended his memo in a statement that said, “ Republicans will keep fighting for our positions to preserve the integrity of the voting process so everyone’s vote is properly counted, and any other positions we deem fit— because the Democrats haven’t made it a crime to be Republican— YET.”
When asked by TPM about its potential impact on the litigation, he wrote in an email, "[R]epublicans have the same right to advocate that voting sites be put in certain places, what hours they are open, and the fairness of the procedures."
“The 4th [C]ircuit ruled that the law we passed should not go forward. They did not rule that we [R]epublicans are prevented from advocating our own cause,” he added. “The left wants people with no ID, to vote whenever and however they want, and [R]epublicans to be silent about it or they call us names. They won't stop us from advocating for fair, safe and secure voting.”

Uber: Judge rejects class action settlement

Uber v drivers: judge rejects 'unfair' settlement in US class action lawsuit | Technology | The Guardian
by Carrie Wong
A federal judge has rejected the proposal to settle a major class-action lawsuit by California and Massachusetts drivers against Uber for $84m, ruling that “the settlement as a whole as currently structured is not fair, adequate, and reasonable”.
In a ruling issued Thursday, Judge Edward M Chen noted that the settlement “yields less than 5% of the total verdict value of all claims being released”.
In particular, Chen objected to the portion of the settlement that would accept $1m to settle a claim that is estimated to result in penalties to Uber of over $1bn, without providing any “coherent analysis” to justify “such a relatively meager value”.
“The settlement, mutually agreed by both sides, was fair and reasonable,” an Uber spokesperson said in a statement. “We’re disappointed in this decision and are taking a look at our options.”
“I am disappointed the judge did not approve the settlement, but I understand and I have heard him,” said Shannon Liss-Riordan, the plaintiff’s attorney.
If a new agreement that meets the judge’s approval is not reached, she said, “I will take the case to trial and fight my hardest for Uber drivers.”....

Wednesday, August 17, 2016

Tobacco Control in the Obama Era — Substantial Progress, Remaining Challenges — NEJM

Tobacco Control in the Obama Era — Substantial Progress, Remaining Challenges — NEJM
by Michael C. Fiore, M.D., M.P.H., M.B.A
The steady decline in smoking rates among U.S. adults that began in the early 1960s has accelerated substantially during the 7 years of the Barack Obama presidency. Since 2009, the prevalence of cigarette smoking in the United States has fallen at a rate of about 0.78 percentage points per year1 — more than double the rates observed during the administrations of Bill Clinton and George W. Bush (mean decreases of 0.28 and 0.36 percentage points per year, respectively; see graphsTrends in Smoking Prevalence among U.S. Adults.). If the current rate of decline were to continue, the prevalence of smoking among U.S. adults would fall from its current level of 15.3% to zero by around 2035. In contrast, at the slower rates of decline observed during the Clinton and Bush years, smoking would not reach zero until approximately 2070 and 2057, respectively (seegraphs). (Although cigarettes account for most of the combustible tobacco products sold in the United States,2 sales of noncigarette tobacco products such as cigars have not decreased at the same rates.)
The recent accelerated decrease in cigarette smoking has not occurred in a vacuum. The striking decline since 2009 is most likely due to the implementation of an array of tobacco-control interventions at the federal, state, nonprofit, and private-sector levels.
These interventions, particularly those at the federal level, were highly intentional, well planned, and well organized. During the first 2 years of the Obama era, several legislative acts provided both the foundation and the essential tools for concerted action on tobacco control. Three of these new laws were particularly influential: the Children’s Health Insurance Program Reauthorization Act of 2009, which increased the federal cigarette excise tax rate from $0.39 to $1.01 per pack; the Family Smoking Prevention and Tobacco Control Act passed in June 2009, which gave the Food and Drug Administration (FDA) the authority to comprehensively regulate thousands of tobacco products for the first time; and the Affordable Care Act (ACA) passed in March 2010, which mandated insurance coverage of evidence-based smoking-cessation counseling and medications without barriers or copayments3 and expanded Medicare and Medicaid coverage for smoking-cessation treatments. The ACA also established the National Prevention Council and the Prevention and Public Health Fund. Other legislation that contributed included the American Recovery and Reinvestment Act (ARRA), the Prevent All Cigarette Trafficking Act, and the Health Information Technology for Economic and Clinical Health Act; these provided research funding, levied taxes on Internet sales of tobacco products, helped to reduce such sales to children, and incorporated assessment of tobacco use into “meaningful use” requirements for health information technology.