Monday, June 29, 2009

42 USC 1983 - A part of our constitutional fabric

Over at Concurring Opinions the suggestion was made that some statutes have "canonical status". The first candidate was the Voting Rights Act of 1965. The idea is that in Northwest Austin v. Holder last month the Supreme Court assaulted its legitimacy but did not declare it a nullity out of a sense that it would be impolitic to void a law seen as key to transforming our era. The law is vulnerable because it takes race into account - a sin in the Rehnquist-Roberts universe of discourse.

A list of candidate statutes was generated which, surprisingly, did not include 42 U.S.C. 1983 which provided the cause of action in Brown v. Board of Education, and the other key fights of the civil rights movement. That reminded me of Harry Blackmun's impassioned defense of the Civil Rights Act of 1871: Section 1983 and federal protection of individual rights--will the statute remain alive or fade away? 60 New York University Law Review, 1 (1985). We know the answer now: they'll keep it - and use it to declare that race-conscious remedies are impermissible.

That of course confirms that 42 USC 1983 itself is untouchable.

But I prefer the Blackmun vision of the statute and its role to the race-blind conservatism of Anthony Kennedy whose sincerity I do not doubt, and whose reasoning I do not accept. Here's Harry:

"It is no reflection on the current good faith of state government and state courts to observe that history is not a one-way street. While we all can work to prevent a return to the judicial indifference and paralysis of the past, none of us can guarantee that the day will not return when a litigant who cannot vindicate his constitutional rights in federal court will not be able to vindicate them at all.

If that day should come, it will be far harder to reconstruct a statutory remedy that has been judicially interred or legislatively undone in the meantime than it would be to resort to a remedy that has been intact and working in the intervening years. In short, once we restrict the role of federal courts in protecting constitutional rights, we may find ourselves hard pressed to recover what has been given up.

In making this argument, I suppose that I am relying in part on the symbolic importance of § 1983. The symbolism that I have in mind, and the symbolism that § 1983 has come to possess for those whose rights depend on it, is not the symbolism the statute bore when it was enacted in 1871. Then § 1983 was part and parcel of the Radical Republican assault on the ashes of the Old South.

Today, § 1983 properly stands for something different -- for the commitment of our society to be governed by law and to protect the rights of those without power against oppression at the hands of the powerful. When the Fourteenth Amendment became part of the Constitution, it committed this Nation to an order in which all governments, state as well as federal, were bound to respect the fundamental rights of individuals. That commitment, too, is a part of "Our Federalism," no less than the values of state autonomy that the critics of § 1983 so passionately invoke.

One might well ask, rhetorically, whether § 1983 could be enacted in today's political climate, or, indeed, whether we dare repeal it. What a vibrant and exciting old statute it is. As Edmond Cahn so aptly observed, "[F]reedom is not free." Whatever is the fate of § 1983 in the future, I do hope that it survives both as a symbol and as a working mechanism for all of us to protect the constitutional liberties we treasure."

The statute is now embedded into our constitutional structure, because it expresses a deeply held tenet of the American people - that the courts must provide a remedy, that one who violates "any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

Monday, June 22, 2009

Supreme Court takes consumer bankruptcy lawyers challenge to "debt relief agency" tag

The United States Supreme Court has long mandated an intermediate level of scrutiny for restrictions on attorney advertising. The limits must be based on evidence, and be narrowly drawn to materially advance a substantial governmental interest. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980)

In a case that the Times' Adam Liptak ridicules as representative of the trivial nature of current free speech cases, the Supreme Court has agreed to review Milavetz, Gallop & Milavetz v. United States of America. (See briefs and opinions below courtesy of Scotusblog.)

Alan Milavetz, a consumer bankruptcy attorney in Minnesota objects to the Congress's requirement that bankruptcy lawyers in their advertisements describe themselves as "a debt relief agency". (see 11 U.S.C. 528)

Milavetz complains that consumer bankruptcy lawyers are lumped together with predatory lenders and non-attorney agencies, compelled to confusingly describe themselves in terms that make it sound like they are a government "agency", and lumps them together with the aggressive, largely under regulated consumer counseling and other "debt relief" operations.

And 11 U.S.C. 526 (a) (4) forbids advising someone to take on more debt in contemplation of bankruptcy. But that could bar advice to a client to prudently buy a reliable car - to get to work, or to refinance a mortgage at a lower rate to pay off credit card debt. Such considerations led the 8th Circuit to find a constitutional violation, citing Erwin Chemerinsky, Constitutional Issues Posed in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 79 Am. Bankr. L.J. 571, 579 (Summer 2005).

One can understand Liptak's point that the issue lacks broad significance. But not everyone can be Eugene V. Debs, Democracy's Prisoner, campaigning for President from a jail cell, a story retold in Ernest Freeberg's fine new account .

Advocates looking for an attorney free speech issue broader than that posed by Federal bankruptcy law could look at New Jersey Advertising Guideline 3. It instructs that consumer-directed advertisements:

4) include information sufficient to inform an unsophisticated individual of the potential pitfalls and disadvantages of a bankruptcy proceeding as follows:

The decision to file for bankruptcy is a serious choice. It is a remedy that may affect your credit and may affect your ability to use the bankruptcy code at a future time. Be sure to discuss the advantages and disadvantages of bankruptcy with any professional whom you are considering to represent you.

5) not attempt to indicate a special relationship, expertise, experience or knowledge which will or may provide a more favorable result than other licensed New Jersey attorneys;

6) not raise unjustified expectations or use language or format susceptible of unduly enticing a person because of possible economic or personal consequences of a judgment; and

7) not raise false hope for relief inapplicable to the individual person’s circumstances.

The Guideline , according to the drafters, bars as misleading statements like "* "The Law Firm of XXX has been in business since XXX helping people just like you. Only an attorney can properly assist you in this situation and stop SHERIFF SALES, TAX LIENS."

The information compelled by the New Jersey rule is bad advice. Were it not for the Guideline an attorney could truthfully say without state-mandated qualification "going bankrupt is GOOD for your credit. Discharge wipes the slate clear, provides a fresh start, and blocks filing for bankruptcy again within 7 years. Creditors will want to lend to you again when you are free of your past debt."

Enunciated by the N.J. Supreme Court's Committee on Attorney Advertising as Opinion 30, the requirement has survived a challenge in the state Supreme Court which refused to overturn the rule. The court directed it be re-cast as an Advertising Guideline. The court has had four years to finalize the rule but has not acted.

Opinion 30 - which is in effect and is simply recast as proposed Guideline 3- bars an attorney from saying "Choose experience" by referring to her "25 years of experience exclusively representing debtors like you".

That stricture, based on the New Jersey Rule of Professional Conduct 7.4 (a), which bars any comparative statement will probably not survive the recent opinion of the New Jersey Supreme Court allowing use of the Super Lawyers moniker here.

The New Jersey Supreme Court has not formally approved the Guideline. One wonders if they will await the Supreme Court's ruling in Milavetz, or the Second Circuit in the pending challenge to New York's advertising restrictions reported here.

The decision on the New York challenge - Alexander & Catalano v. Cahill, brought by Public Citizen, will be interesting since the panel includes Judges Calabresi, Walker, and Sotomayor. At oral argument Sonia Sotomayor pressed the point that attorney advertising is "attention-getting, not informational".

Docket: 08-1119 and 08-1225
Title: Milavetz, Gallop, & Milavetz, P.A., et al. v. United States ; United States v. Milavetz, Gallop, & Milavetz, P.A., et al.
Issue: Whether an attorney who provides bankruptcy assistance to an assisted person in return for valuable consideration, and who does not fall within one of the five exceptions, is a “debt relief agency” for purposes of 11 U.S.C. 526 and whether 11 U.S.C. 528 violates the First Amendment.

Sunday, June 21, 2009

Medicare hell-holes and Medical Liability Reform in Federal Health Care Reform

`Is there a role for medical malpractice reform in health care reform ?' Medical-legal policy specialists Michelle Mello and Troyen Brennan at Harvard School of Public Health, writing in the New England Journal of Medicine, say a definite maybe.

They identify three options: Disclosure and offer programs (a kind of Offer to take judgment-cum apology), Administrative or Specialised Tribunals (with "neutral experts or neutral adjudicators"), and Safe Harbors" (legal defenses for adherence to evidence-based practices).

Would these measures accomplish much? No, but Mello and Brennan recommend doing it anyway. Why? Because health care reform "will entail changes in the payer mix that are unfavorable for providers and exert continued downward pressure on reimbursment rates."

The connection? Reformers should offer MD's a "quid pro quo". Malpractice reform would be welcome because "most physicians find the litigation system unfair, financially and psychologically burdensome, and unhelpful in promoting safety and quality. They would welcome relief of some sort."

This is sincere but unpersuasive advice. If medical malpractice reform is to be enacted it should be on the merits, e.g.

- the proposed reform improves deterrence of poor care, or

- increases rates of compensation of the negligently injured, or

- decreases costs while preserving other values.

A medical malpractice reform bone is unlikely to win much support from skeptical physicians. Physicians' attitudes are driven by ideology and anecdote, not data - as Tom Baker has demonstrated in The Medical Malpractice Myth (2005). Mello and Brennan know this from their own research - such as their demonstration that flu vaccines generate only negligible amounts of litigation, contrary to what many consider common knowlege. See Mello and Brennan, Legal Concerns and the Vaccine Shortage, JAMA, October 12, 2005—Vol 294, No. 14.

Medicare hell-holes

Since we spend 6 - 7% more of GDP on health care than other advanced countries of similar levels of public health we need to look beyond myth. Atul Gawande in the New Yorker has done just that. In The Cost Conundrum he discusses what a Texas town can teach us about health care. Hidalgo County, south Texas, is a "Medicare hell-hole". Costs are not driven by Tex-Mex cuisine, but by gorging on tests and procedures ordered by unsalaried doctors who get paid by the procedure and are subject to no significant institutional controls.

Gawande concludes that unlike procedure-driven pricing at Doctors Hospital at Renaissance in Edinburg Texas, we should adopt the salaried physician and medical management approaches demonstrated by the Mayo Clinic in Minnesota. "If we brought the cost curve in the expensive places down to their level, Medicare’s problems (indeed, almost all the federal government’s budget problems for the next fifty years) would be solved", he argues.

This is the approach taken by President Obama, who lauded Mayo Clinic in his recent address before meeting with Senate Democrats.

Image: Doctor's Hospital at Renaissance, Edinburg, Texas

Tuesday, June 16, 2009

Bratton: We Cannot Arrest our way out of these problems

Senator Jim Webb continues to press the National Criminal Justice Commission Act of 2009, which he first announced in Parade Magazine in an article Why we must fix our prisons.

Testifying at Senate Judiciary Committee hearings on June 11, Los Angeles Police Commissioner William Bratton made some key points:

* "We cannot arrest our way out of these problems, including the national gang crime explosion."

* The war on Drugs must be replaced by a treatment and interdiction-oriented approach.

* We must abandon the policy of jailing the mentally ill.

Bratton is the man who deserves the credit claimed by Rudy Giuliani for reversing the crime rate in New York City. Bratton replaced random, reactive patrols with targeted-community-based preventive police work. The result: reducing the jail population in New York City's Rikers Island from 22,000 to 11,000.

The hearings were held in support of Senator Jim Webb's proposal to overhaul our criminal justice system. We hold 25% of the world's prisoners, yet have only 5% of the world's population. We imprison more people, longer, and in more harsh conditions. Our relentless "get tough" policies have done and are doing enormous damage to minority communities, as Harvard Law Professor Charles Ogletree testified:

As overall numbers of individuals imprisoned or monitored by the government have grown, so have racial disparities among this population. African Americans make up only 13 percent of the overall population, and Latinos 15 percent. However, 40 percent of the prison population is African American and 20 percent is Latino.

One in every 8 black males in their twenties is in prison or jail on any given day, as compared with 1 in 26 Latinos, and 1 in 59 white males. Black males have a 1 in 3 chance of serving time in prison, and Latinos 1 in 5, as compared with 3 in 50 for white males.

According to Harvard sociologist Bruce Western, the U.S. penal system has become ubiquitous in the lives of low-education African American men, and is becoming an important feature of a uniquely American system of social inequality.

These large disparities are due to a constellation of complex and interrelated factors that include poverty, high rates of joblessness, low levels of education, and the clustering of African Americans and Latinos in concentrated urban areas. They are also related to very deep, systemic flaws within the criminal justice system.

The testimony and webcast of the Senate hearings can be found here.

Sunday, June 14, 2009

Pat Buchanan on Sotomayor: waving the dagger and sprinkling poison

Pat Buchanan, Jesuit educated in Washington, D.C. at Gonzaga College High School under the old rule, got his basic training in rhetoric the way I got mine: reading Cicero’s orations against the anti-Republican conspiracy of L. Sergius Catilina.

Cicero employed every rhetorical device: wit, learning, the curt and quick reply, appeal to reason, and to the divinity. But Cicero also used hyperbole, ad hominem attack, and a device he deplored in the followers of his adversaries: “how to wave daggers about and sprinkle poisons”. (2d Oration, M. Grant, tr.) Buchanan has developed the last two skills with particular relish.

In his recent screed in Human Events “Miss Affirmative Action 2009" Buchanan says of 2d Circuit Court of Appeals Judge Sonia Sotomayor “her academic career appears to have been a fraud from beginning to end, a testament to Ivy League corruption.

As Buchanan notes, Sotomayor said in the early 1990's at a PLI panel discussion on women in the judiciary "If we had gone through the traditional numbers route of those institutions," says Sotomayor, "it would have been highly questionable if I would have been accepted. ... My test scores were not comparable to that of my classmates." (See video here)

Buchanan ignores Sotomayor's elaboration that because she had graduated first in her class from Cardinal Spellman High School in the Bronx, she “was readily accepted” at Princeton; and that her SAT scores, while below the norm for Princeton, were “not so far off the mark that I could not succeed there.” Her election to Phi Beta Kappa shows at least that. Her admission at Yale Law School was similarly driven by her summa cum laude performance as an undergraduate.

Such nuance is lost in Buchanan’s account which quickly escalates to the hyperbolic language of resentment, a Buchanan trademark - as Lance Morrow observed in Time magazine a dozen years ago. Buchanan declares there is “no need for name-calling” and then immediately begins to wave the dagger and sprinkle the poison of white-backlash:

“Thus, Sotomayor got into Princeton, got her No. 1 ranking, was whisked into Yale Law School and made editor of the Yale Law Review -- all because she was a Hispanic woman. And those two Ivy League institutions cheated more deserving students of what they had worked a lifetime to achieve, for reasons of race, gender or ethnicity.”

Sotomayor was “whisked”, “all because”, the Ivy League “cheated more deserving students” [who also graduated first in their class?] of a “lifetime” of effort. How quickly the Buchanan rhetoric escalates, how sparse evidence suffices for Buchanan to concoct a vast conspiracy by which a woman is vaulted to the top of her class at Princeton, one of 20 Hispanics among 2,000 students, arbitrarily anointed for greatness, all to serve the cause of an unjust racial order, to embed a “race-based bigotry against white males so that persons of color can receive the rewards of society that they could not win in free and fair competition.

The Times describes Sotomayor’s efforts: “She spent summers reading children’s classics she had missed in a Spanish-speaking home and “re-teaching” herself to write “proper English” by reading elementary grammar books.” Despite his opening abjuration of name-calling Buchanan descends quickly to ad hominem mockery: “How do you graduate first in your class at Princeton if your summer reading consists of "Chicken Little" and "The Troll Under the Bridge"?”

I point out to Mr. Buchanan that at my all-boys Jesuit high school Brooklyn Prep (whose admission test Justice Scalia personally told me he had failed) we were drilled two hours a week by Mr. O’Connell to purge the Brooklynese "dese dems and doe's". We recited “trippingly off the tongue”, in unison, “mares eat oats and does eat oats and little lambs eat ivy”, and “John Styu-art Mill, by a mighty effort of the will, wrote Principles of Political Economy”.

We read E.B. White’s explanation of why “These are the times that try men’s souls” soars over “these are trying times for men’s souls”. We diagramed sentences in Latin, Greek, French, and English. Such work apparently constitutes part of a meritorious “lifetime” of effort only when made by white males engaged in “free and fair competition”. When made by a Puerto Rican woman from a Spanish-speaking home in the “Projects” it becomes flesh for Buchanan’s dagger.

Buchanan claims (without the slightest evidence) that “no one has brought forth the slightest evidence [Sotomayor] has the intellectual candlepower to sit on the Roberts court”. As but a beginning effort to judge the evidence (beyond her years on the bench since her nomination by George H.W. Bush), I suggest the PLI video above (Sotomayor’s remarks are at 9:04, 35:39, 42:25); and her remarks on the role of experience in judicial work here.

For the final proof I look forward to her (third) Senate confirmation hearings. In particular I will relish the moment when she tells the nation that she is proud to be a Puerto Rican from the Bronx. There will be many moist eyes watching her on television. And few will hear Pat Buchanan grinding his teeth as his forces lose another round. Change has come to America.

John Yoo must answer civil rights suit by Jose Padilla

Judges at the trial level are taught to defer to those above. The habit of mind that tends to find a conciliatory approach, to reach for consensus, to narrow difference is deeply embedded in judical temperament. But choices must be made when adversaries press a point - as have the attorneys for plaintiff Jose Padilla, the al Qaeda supporter who suffered at the hands of captors whose methods were authorized by the opinions of high ranking lawyers in the United States Department of Justice - John Yoo, now a Berkeley law professor.

Jeffrey S. White, a federal judge of the Northern District of California, has confronted such a moment. He has allowed a "Bivens" civil rights action to proceed against the former Justice Department lawyer. 42 USC 1983, the post civil war statute authorizing lawsuits against oppression by state officials does not reach federal officers. For that the United States Supreme Court, in the landmark Bivens v. Six Unknwon agents of the Federal Bureau of Narcotics, said that the constitution itself authorizes a civil remedy. That 1971 opinion by Justice William Brennan is the foundation on which Padilla's complaint and White's opinion, rest.

Judge White recognizes the choices to be made. Here is his opening statement. A link to the full opinion follows.

[War] will compel nations the most attached to liberty to resort for repose and
security to institutions which have a tendency to destroy their civil and political
rights. To be more safe, they at length become willing to run the risk of being
less free.
The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).

The issues raised by this case embody that same tension – between the requirements of war and the defense of the very freedoms that war seeks to protect. After the brutal and unprecedented attacks on this nation on September 11, 2001, the United States government responded to protect its citizens from further terrorist activity. This lawsuit poses the question addressed by our founding fathers about how to strike the proper balance of fighting a war
against terror, at home and abroad, and fighting a war using tactics of terror.

Padilla v. Yoo: Order Granting in part and Denying in Part Defendent's Motion to Dismiss height="500" width="100%" rel="media:document" resource="" xmlns:media="" xmlns:dc="" > value=""> Padilla v. Yoo: Order Granting in part and Denying in Part Defendent's Motion to Dismiss TheBoksMan Order by U.S. District Judge Jeffrey White giving Jose Padilla the right to sue ex-Bush lawyer John Yoo for coming up with legal theories that were used to justify his detention and mistreatment.
Brian Tamanaha has a supportive summary of key elements of Judge White's ruling (e.g. on qualified immunity) , and many readers comment at Balkinization here. - gwc
PPS: John Yoo has filed his brief on appeal HERE

Thursday, June 11, 2009

The nuclear option for discovery abuse: default and counsel fees

Red Spot Paint & Varnish Co.'s home page says:
"The history of our company is filled with ups and downs and ups. Our business has, by design, depended on research and development, and with research comes failures...more often than success, usually. " June 5 was a downer.

U.S. District Judge Larry McKinney excoriated Red Spot - and its law firm Bose McKinney & Evans. BME had acted "like a chameleon", assisting an unsupportable denial that its client Red Spot had used two dangerous chemicals, failing to inventory 68 boxes of discovery materials, and failing to counsel its client to make a full disclosure.

For this the defendant/client was adjudged in default, defense experts barred from disputing causation, and liability imposed in an environmental cleanup case. For its lack of professional independence Bose McKinney was ordered to pay half of plaintiff's counsel fees and costs. The full opinion is here. The story and other blog links at ABA Journal are here. An excerpt from the order follows:

The Court concludes that Red Spot’s conduct can only be described as
contumacious, wilful, and egregious. BME compounded the problem by, like a chameleon, becoming indistinguishable from its client and allowing Red Spot, namely Storms and Henry, to evade the truth.

Through its defiant conduct, Red Spot has forfeited the right to have the issues determined on the merits. Therefore, the Court must conclude that only
the most onerous sanction, default, can remedy Red Spot’s violation of the rules of
discovery; Fed. R. Civil P. 37(b)(2)(A)(vi); 37(c)(1); or can remedy Red Spot’s complete disregard of the legal process as protected by the inherent authority of the Court. Greviskes, 417 F.3d at 758-59. The Court, therefore, GRANTS 1100 West’s Motion for Sanctions.

The Court DECLARES, pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 6972(a), and
by DEFAULT, that defendant, Red Spot Paint & Varnish Co., Inc., is liable for taking all necessary action to abate and otherwise respond to the aromatic contamination plume and the TCE/PCE contamination plume on plaintiffs’, 1100 West, LLC, property.

Plaintiff, 1100 West, LLC, shall file its proposed remedial plan on or before Tuesday, August 4, 2009. On or before Monday, October 5, 2009, defendant, Red Spot Paint & Varnish Co., Inc., shall, in writing, SHOW CAUSE why the remedial plan proposed by plaintiff, 1100 West, LLC, should not be ordered as the remedy in this cause. A Show Cause Hearing is hereby SET for Wednesday, November 4, 2009, at 8:30 a.m., in Courtroom 202, Birch Bayh Federal Building and United States Courthouse, 46 East Ohio Street, Indianapolis, Indiana.

Defendant’s, Red Spot Paint & Varnish Co., Inc., expert(s) shall only testify as to the appropriateness of the remedial plan; they shall not be allowed to testify as to causation at said hearing.

Further, 1100 West shall be entitled to its attorneys’ fees and costs for all discovery dating from May 23, 2006, to the present, including expert discovery within those dates, and for its attorneys’ fees and costs associated with the October 15 and 17, 2008, hearings, and its Motion for Sanctions. 1100 West shall file its brief in support of its accounting of reasonable attorneys’ fees and costs within thirty days of the date of this Order. Red Spot and BME shall have fifteen days to file a brief in opposition to said accounting.

Red Spot and BME shall each pay one half of said reasonable attorneys’ fees and costs as they are determined by the Court, pursuant to Federal Rule of Civil Procedure 37(b)(2)(C) and pursuant to the inherent authority of the Court.

Tuesday, June 9, 2009

Effective Assistance of Counsel for Immigrants: Change you can believe in

Last August the Blog of Legal Times
reported that 2d Circuit Judge Robert Katzmann
and the 9th Circuit's M. Margaret McKeown had described as a "tsunami" the flood
of immigration cases which had gone from 4% to 39%! of the Court of Appeals docket.

BLT reported: "By the time we get the case, it's often too late," said Katzmann. "It's often hard to get a good night's sleep when you feel the lawyering in a case has not been good." The surge in cases began, panelists said, after then-Attorney General John Ashcroft streamlined the removal process in "post 9/11" 2002 measures. That, McKeown said, had the effect of giving the attorney general "a clean plate and a clean desk".

In the Compean case another AG - Michael Mukasey - made things worse on January 7, 2009. He set aside the 20 year-old Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), which allowed immigrants a new chance if they could prove their attorneys had been ineffective. Immigrants have no right to counsel, Mukasey affirmed, unless charged with a crime. True enough if the only foundation for "effective assistance of counsel" is in the 6th Amendment, which establishes the adversary nature of the criminal justice system.

Immigration lawyers of the American Immigration Law Foundation (AILF) sounded the alarm in a brief urging Attorney General Eric Holder to reverse the policy. Circuit court decisions like Aris v. Mukasey, 517 F. 3d 595, 600-601 (2d Cir. 2008) held that 5th Amendment due process demands fundamental fairness - which is undermined if a lawyer in a removal proceeding fails to meet the standards of competence demanded by rules of professional conduct.

Now Holder has responded by vacating the Compean ruling and directing immigration judges to apply existing standards.

Once before in my career have I seen this kind of response by courts to repudiate executive policy - that in protest of the Reagan administration's policy of "non-acquiescence" in court rulings in Social Security disability cases. SSD cases swelled the federal court dockets. As a practitioner I found myself often before U.S. District judges angered by the United States policy, disposed to reverse denials of benefits, and ready to award benefits and approve Equal Acccess to Justice Act counsel fees under 5 USC 504.

Thursday, June 4, 2009

Fight terror - speak Mandarin?

URUMQI: Teaching Mandarin to students in the remote Xinjiang Uygur autonomous region was helping the fight against terrorism, chairman of the autonomous region Nur Bekri said.

"Terrorists from neighboring countries mainly target Uygurs that are relatively isolated from mainstream society as they cannot speak Mandarin. They are then tricked into terrorist activities," Bekri said. The China Daily story is here.

The Uyghur autonomous region has a population of 20 million, 60% Uyghur or Kazhak. It is the old assimilate or separate problem. We know how it worked out in the USSR - mixed results, shall we say.

This measure can be contrasted to that of April 10. At a stadium filled with 4,000 local officials in Xinjiang, authorities announced the Supreme Court had upheld the judgments and that executions were imminent for two men who carried out a 2008 attack that killed 17 border guards. A few days later another vehicle bomb was exploded in the province. The China Daily reports are here and here.

That the will and means could be mustered to kill 17 paramilitary border police highlights the depth of the problem - one likely to be mitigated only slightly by assimilationist measures like Mandarin language study.

China is not an ideological union like the USSR. It is a proud ethnic giant unlikely to relinquish sovereignty in minority regions such as Xinjiang and Tibet. But the development and persistence of such centripetal forces tells us that the status quo is not a viable option. The assimilation-autonomy conundrum is far from resolution.

image: China Daily, August 4, 2008

Wednesday, June 3, 2009

Hillary Clinton on the 20th Anniversary of the Tianmen Square crackdown

Hillary Rodham Clinton
Secretary of State
Washington, DC
June 3, 2009

On this the 20th anniversary of the violent suppression of demonstrations in Tiananmen Square by Chinese authorities, we should remember the tragic loss of hundreds of innocent lives and reflect upon the meaning of the events that preceded that day.

Hundreds of thousands of protesters took to the streets for weeks, in Beijing and around the country, first to honor the late reformist leader Hu Yaobang and then to demand basic rights denied to them.

A China that has made enormous progress economically, and that is emerging to take its rightful place in global leadership, should examine openly the darker events of its past and provide a public accounting of those killed, detained or missing, both to learn and to heal.

This anniversary provides an opportunity for Chinese authorities to release from prison all those still serving sentences in connection with the events surrounding June 4, 1989. We urge China to cease the harassment of participants in the demonstrations and begin dialogue with the family members of victims, including the Tiananmen Mothers. China can honor the memory of that day by moving to give the rule of law, protection of internationally-recognized human rights, and democratic development the same priority as it has given to economic reform.

A contemporary TV news report of the military break up of the Tiananmen encampment is here. - GWC

PRN: 2009/538
images: copyright Magnum

Amos Elon on The Israel-Arab Deadlock

As Barack Hussein Obama heads for the mid-east - to engage the Muslim Arab nations, we are told - I am reminded of Amos Elon, who died last week. His obituary in the Times is here. I have only once set pen to paper to write about the Israeli-Arab conflict - and that to eulogize the slain Yitzhak Rabin.

In the mid '70's I was active in the National Lawyers Guild, editing its paper among other things. At a meeting I spoke with the PLO's UN representative and was stunned by his blunt talk of solving problems with a single bullet. I understood that holocaust survivors saw Israel's survival as an utter necessity. And that the Palestinians saw in it only catastrophe. I saw no place for me in the fight and so have been a passive observer, expecting that ultimately the two state solution's simple logic would carry the day.

Over the next three decades I read the work of Amos Elon in the New York Review of Books - long my favorite periodical. Elon's death prompted me to look back at the Review's archives and find this 1968 !! essay The Israel Arab Deadlock. I certainly did not read it at the time: I was in a fishing village just north of Bombay, serving in the Peace Corps. An unblogly lengthy excerpt follows.

I think it an astonishingly accurate piece of journalism. Such efforts are often described as a first draft of history. Elon's first drafts were better than others' last.

The Israel-Arab Deadlock

By Amos Elon

Israel and World Politics
by Theodore Draper
Viking, 278 pp., $2.25 (paper)

The Road to Jerusalem
by Walter Laqueur
Macmillan, 350 pp., $6.95

Now that most of the fighting is over, and only sporadic raids and counterraids continue across the River Jordan, the origins of the third Arab-Israeli War are likely to be again obscured by events, as were those of the first (1948) and the second (1956). New blunders blot out old. Arab intransigence continues; the Israelis may yet discover that a great victory, as Nietzsche wrote, may be "for human nature…more difficult to bear than a defeat." The forces that caused the last war remain. They may soon be responsible for bringing about still another one.

Even last summer, soon after the war, the rapidity and seeming ease of Israel's victory overshadowed the pre-history of the war, its origins in the tactics of power, and the disastrous interplay between mass psychology and leadership. Now, a year later, the picture is further blurred by current preoccupations: the plight of the innocent refugees, acts of terrorism and sabotage, and their natural consequence of mass arrests and blown-up houses. United Nations Ambassador Gunnar Jarring, wandering from one Near Eastern capital to another, has spent the last six months trying in vain to square the circle. The Arabs say, "Withdrawal first, peace (maybe) later." The Israelis say, "Peace first, withdrawal (maybe) later."...

Most Israelis and many of their sympathizers abroad refuse to admit that two rights have clashed over Palestine. It is a persistent Zionist legend that the Arabs will eventually see the light in social and economic progress introduced by the Jews, and then gladly trade their nationalism for symphony orchestras, schools, and hospitals. While this may not be such a bad alternative to anybody's nationalism, it is highly unrealistic to expect it in the Near East, just as it would be in Europe.

On the other hand, there is not only the rivalry between Arab and Israeli, but rivalries between Arab and Arab (Syria still claims Palestine for her own province), Moslem and Non-Moslem Arabs, Russian and Chinese communists, and, of course, The United States and the Soviet Union.

Moreover, the old debate about the rightness or wrongness of Zionism still confounds all discussion. Should there be a Jewish State? Why should the Arabs atone for Nazi crimes? During the past decade this argument has become irrelevant and certainly impractical, and today it has become largely obsolete. Immigration to Israel has come to a standstill.

Two-and-one-half million Israelis are now a nation, cohesive and resourceful, whatever the argument over Zionism. For Israelis, the issue is not one of theory, but one of physical survival, of individuals as well as of a community. There is no other place to go, as there was for the French community in Algeria....

The talk of desirable solutions will continue, but at this juncture at least, none seems even remotely acceptable to both sides. It is possible to imagine a solution imposed from outside by mutual agreement of the great powers. But this too seems improbable.

The deadlock is likely to continue. We know nothing of the human heart if we imagine that Israelis will easily forget fifty years of near-total Arab enmity and twenty years of threats of annihilation; it is also native to believe that repression can make the Arab masses confident, or esteem Israel, or forget that Palestine was "stolen" by the Zionists.

For decades the Jews have tended to belittle the force of Arab nationalism, and have consoled themselves with the thought that the Arabs could live very well without the tiny piece of Arabia that is Palestine. The Arabs too have indulged for decades in the luxury of underestimating the enemy. They have ignored the fact that to preserve any sense of reality, there must be a sense of the relativity of enmity, as indeed of friendship as well.

There is some hope, albeit not much, in the increasing contact between Israelis and Jordanian Arabs on the occupied West Bank as well as with East Bank residents who are now being granted visitors' permits. If it is true that total enmity is possible only where there is complete lack of communication, the West Bank situation, if it lasts, holds some hope. One day both Arabs and Israelis may begin to doubt whether an enemy to whom one can talk is really an enemy at all.

If this hope too is just another pipe dream, the present deadlock is bound to continue. And both sides are condemned to inflict death, pain, and hardship on each other.

excerpted from The New York Review of Books, Vol. 11, No. 2, August 1, 1968