Friday, July 31, 2009

Harassment of Critical Chinese Lawyers


Press reports in the US depict a pattern of harassment of dissident lawyers in China.

The Chinese Communist Party, like many in power, is hypersensitive to criticism. "Talking against China" is too often seen as identical to criticism of the government, and, especially, of the party permanently in power. Despite the plain language of the First Amendment to our Constitution "Congress shall make no law..." we have our own history of such attitudes - the Red Scares of the fifties, the House Un-American Activities Committee, etc.

One of the buttresses against such repressive stances is the tradition of independence of the bar: that lawyers are duty bound to zealously represent their clients, and that lawyers are essential to assuring the Constitution's promises of due process of law, and freedom to petition the government for redress of grievances.

Unfortunately China lacks that tradition of independence of the bar. Now, as the 60th Anniversary of the revolutionary victory of the CP and the founding of the PRC approaches, the party's hypersensitivity seems to be reaching a high point. The feeling I get is that the attitude is DO NOT SPOIL THE PARTY. "Celebration now, analysis and criticism may come next year".

There has been much press coverage in the west of attacks on the independence of lawyers in China. I have not followed the issue closely, but a good and, to me, persuasive essay has just been published in the New York Times by Richard Thornburgh. (A moderate Republican twice elected Governor of Democratic-inclined Pennsylvania, and a former Attorney General of the United States from 1988-1991, he is a centrist figure in American politics.)

The essay begins:

At some point in the next 12 months, China will reach a key milestone: For the first time in its long history, the number of lawyers will surpass the number of judges. In a country where Confucian culture has always frowned upon litigation, and where lawyers were long considered as “legal tricksters” undermining social harmony, the importance of this event cannot be underestimated.

For sure, 190,000 lawyers in a country of 1.3 billion people might still seem modest. But given that the legal profession was only reinstated after the end of the Cultural Revolution in 1976, and that prior to 1996 there were almost no private law firms, this can only be seen as a major achievement, matching China’s economic renaissance.

Yet if lawyers now enjoy increasing independence, those who defend human rights are increasingly under attack, with legal restrictions impeding their ability to provide an effective defense, to champion causes that challenge local power, or to form independent bar associations.

The balance is HERE.

Thursday, July 30, 2009

NJ Ethics Advisory Committee Guidance on Mortgage Modification Work

The New Jersey Supreme Court's Advisory Committee on Professional Ethics and its Committee on the Unauthorized Practice of Law have issued a joint Opinion on Lawyers Performing Loan or Mortgage Modification Services for Homeowners. (ACPE No. 716, UPL No. 45)

The ACPE is responding to inquiries from attorneys regarding the propriety of performing loan or mortgage modification services for homeowners. For-profit loan modification companies, some with significant direct-to-consumer marketing budgets, are approaching New Jersey lawyers asking to partner with them to negotiate loan or mortgage modifications on behalf of distressed homeowners. Attorneys have also inquired about using financial or mortgage analysts in the course of providing loan or mortgage modification services for homeowners who have directly retained the attorney.

Opinion 716, which is binding on New Jersey attorneys unless revoked or modified by the Supreme Court, states these principles:

1) A New Jersey Attorney May Not Pay Fees to the Loan Modification Company for Clients Referred to the Attorney by the Company and an Attorney May Not Share Fees With the Company.

2) A New Jersey Attorney May Not Work As In-House Counsel to a For-Profit Loan Modification Company, Formally Affiliate or Partner With the Company, or Be Retained by the Company to Provide Legal Services to the Company’s Customers, and an Attorney May Not Assist the Company in the Unauthorized Practice of Law.

[An exception for non-profits is that legal services may be provided by a staff attorney to beneficiaries of a nonprofit legal assistance organization incorporated to provide legal assistance to the poor or functioning as a public interest law firm that provides legal assistance to a defined and limited class of clients.]

3) A New Jersey Attorney May Use an In-House Financial or Mortgage Analyst or Contract With an Analyst, Provided the Attorney is Responsible For and Supervises the Work, the Compensation to the Analyst Is Not Improper Fee-Sharing, and the Attorney Solicits the Work and is Retained Directly by the
Homeowner Client.

The Committees find that foreclosure prevention counseling by housing counselors certified by the United States Department of Housing and Urban Development and the New Jersey Housing Mortgage Finance Agency (HUD/NJHMFA), who provide mortgage loan modification negotiation services are not engaged in the unauthorized practice of law.

Of note in this regard is the New Jersey Supreme Court's foreclosure prevention mediation program. Resources are on the New jersey judiciairy's website here.

Wednesday, July 29, 2009

China will reduce executions, says Justice of Supreme People's Court

Supreme Peoples Court Vice president Zhang Jun says that China will continue to reduce executions. It is an encouraging affirmation. The Xinjiang ethnic riot prosecutions will be an important test of China's ability to administer justice even-handedly in difficult circumstances. The Times reports that he has given several interviews. So far I have located only the China Daily online report. - GWC

BEIJING, July 29 (Xinhua) -- Legislation will be improved to control the number of death sentences and the Supreme People's Court (SPC) will tighten restrictions on the use of capital punishment, SPC Vice President Zhang Jun, was quoted by Wednesday’s Chia Daily as saying.

The number of criminal executions will be reduced in China, and courts will more often hand out the sentence of death penalty with reprieve, which can be commuted to life in prison and later reduced to 20 years and even lessened further for good behavior, according to Zhang.

The country will retain death sentence, but it should be applied only to "an extremely small number" of offenders who have committed extremely serious or heinous crimes that lead to grave social consequences, he said.

Zhang said the highest court exercises extreme caution in handing down the death sentence to those guilty of killing family members or neighbors over disputes.

"Judicial departments should use the least number of death sentences as possible, and death penalties should not be given to those having a reason for not being executed," Zhang said.

People who plead guilty, compensate family members of the victims, or are pardoned by the latter are generally given more lenient punishments.

In January 2007, the SPC reserved the right to review all death penalty decisions made by lower courts after provincial high courts drew fire amid reports of miscarriage of justice.

With the SPC given the sole power to review and ratify all death sentences, the country is applying fewer death sentences. An average of 15 percent of sentences were overturned in 2007 and 10 percent were overturned in 2008, insiders told China Daily

Shatner does Palin as Beat Poet on Conan O'Brien

Soaring above the pedestrian. Sarah Palin as Beat Poet. William Shatner channels her genius.

Tuesday, July 21, 2009

The Colbert Report: `Reverse Racism'

In this episode Colbert opens discussion of the Sotomayor nomination with Limbaugh and Buchanan clips. He lays out the illogic of the critics. He then turns to Obama's speech at the NAACP Convention, discussing it with Geoffrey Canada, who is new to me and an impressive voice. Canada reports that a search for evidence of increased and disproportionate discrimination against white men found nothing to support the charge.

The Colbert ReportMon - Thurs 11:30pm / 10:30c
Reverse Racism
Colbert Report Full EpisodesPolitical HumorMark Sanford

Thursday, July 16, 2009

Desiccation and the Sotomayor confirmation hearings

Sonia Sotomayorsonia-sotomayor.jpg Heather Gerken
I'll spare you the trouble of following the link, and just give you the full text of Heather Gerken's comments on Balkinization:

Judicial Confirmation Hearings and the Life of the Law

Heather K. Gerken

Sheryl Stolberg of the New York Times observed yesterday that the hearings seem to have drained all the life out of Judge Sotomayor, noting that a vibrant woman with a lively intellect appeared staid, even phlegmatic during the hearings.

The hearings also seemed to have drained the life out of the law itself. Listening to the exchanges, you would never know that the law is a vibrant entity, a remarkable blend of real-world facts and abstract principles. You would never know that lawyering involves nuance and thought. You would think that lawyering is a witless, mechanical exercise and would be surprised to discover that anyone could find a life in the law remotely inspiring.

Someone reading these words might think that these are all code words for describing a "living Constitution," that they are intended to depict law as a tool for social reform. But I think my description would be instantly recognizable to lawyers and judges who flatly reject what has become the traditional liberal take on the law. Lawyering is a craft in which all of us can take pride.

I blame neither the Senators nor Judge Sotomayor for the rather sad and inert picture of the law they've given us. This is simply what judicial confirmation hearings have become. Still, it's too bad that what is perhaps the law's most public moment gives the public so little sense of what a remarkable institution it is.

Wednesday, July 15, 2009

The Southern Strategy and the Sotomayor Confirmation Hearings

It is a disturbing subjugation ritual that we have been witnessing. Candidates for the U.S. Supreme Court cannot speak with the realism that permeates every first year class in every law school in the country.

Sonia Sotomayor - for fear of upsetting the apple cart - has signed on to the party line that judges don't make law, they intepret and apply the law, the constitution is immutable, etc. It will weaken her when she reaches the Supreme Court next month because she has foresworn "empathy" and sworn fealty to the Roberts Canon. In case you don't recall it, here it is - from the second day of the John Roberts confirmation hearings, under softball questioning by Senator Charles Grassley:

"[J]udges operate as judges when they are confined by the law. When I became a lawyer, the proclamation they read for the graduates were -- they referred to the law as the wise restraints that make men free.

And judges are the same way. We don't turn a matter over to a judge because we want his view about what the best idea is, what the best solution is. It is because we want him or her to apply the law.

They are constrained when they do that. They are constrained by the words that you choose to enact into a law -- in interpreting the law. They were constrained by the words of the Constitution. They are constrained by the precedents of other judges that become part of the rule of law that they must apply.

And that cabining of their discretion -- that's what Hamilton referred to in Federalist 78. He said judges should not have an absolute discretion. They need to be bound down by rules and precedents: the rules, the laws that you pass, the precedents that judges before them have shaped.

And then their job is interpreting the law. It is not making the law."

"Making law" is what inspired me and a generation of lawyers. Brown v. Board of Education of Topeka Kansas is the prime exemplar.

It is no accident that the opposition to Sonia Sotomayor is most intense from Senators like Jeff Sessions (R- Miss) from the states where slavery and legal segregation once held sway. The opposition to "making law", to "judicial activism" is code. It is the contemporary, polite version of the politics of white backlash, of the Nixonian "Southern strategy" that transformed the Republican party from the party of Lincoln to the party of Reagan.

It is important to be clear about that strategy, which was first implemented by Richard Nixon in 1968. It was foretold with stunning clarity by then-Nixon strategist Kevin Phillips in The Emerging Republican Majority (1969). Here it is in its raw articulation.

In a 1970 New York Times article Phillips wrote:

From now on, the Republicans are never going to get more than 10 to 20 percent of the Negro vote and they don't need any more than that... but Republicans would be shortsighted if they weakened enforcement of the Voting Rights Act. The more Negroes who register as Democrats in the South, the sooner the Negrophobe whites will quit the Democrats and become Republicans. That's where the votes are. Without that prodding from the blacks, the whites will backslide into their old comfortable arrangement with the local Democrats.

Images: Sonia Sotomayor/Jeff Sessions, John Roberts/George W. Bush, Ronald Reagan (opposing Medicare), Richard Nixon/Checkers

Sunday, July 12, 2009

Wisconsin first to adopt new ABA rule on prosecutor's duty to disclose exculpatory evidence

main image, Great wall of China

The Wisconsin Supreme Court, on petition by its prosecutors, became the first state to adopt new MRPC 3.8 (slightly modified), which compels disclosure of exculpatory evidence post-conviction.

The court's order, comments, and discussion are here.

Roy Simon (thanks for the tip) published at Legal Ethics Forum the adopted version below, showing the changes from the ABA text:

Wisconsin Rule 3.8(g)-(h) in Legislative Style (effective July 1, 2009)

(g) When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall do all of the following:

(1) promptly disclose that evidence to an appropriate court or authority; and

(2) if the conviction was obtained in the prosecutor's jurisdiction:

(i) promptly make reasonable efforts to disclose that evidence to the defendant unless a court authorizes delay; and

(ii) make reasonable efforts to undertake further an investigation, or make reasonable efforts to cause an investigation to be undertaken, to determine whether the defendant was convicted of an offense that the defendant did not commit.

{h} When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

Wednesday, July 8, 2009

Death penalty call in Xinjiang riots

“To those who haChinese President Hu Jintao hurried back home from the G8 meeting in Rome in response to the ethnic clashes in Urumqi, Xinjiang that claimed 160 lives. He called for severe punishment - including the death penalty against the perpetrators. “To those who have committed crimes with cruel means, we will execute them,” Li Zhi, the top Communist Party official in Urumqi, said July 8.

197 are now reported dead, according to China Daily, July 19, 2009. Many arrests are sure to follow.

The moment poses a severe challenge to the Chinese judicial system, long the object of western criticism.

The death penalty itself has been the object of much debate. A move away from the death penalty has been promoted under the leadership of Supreme People's Court chief Xiao Yang. The policy maxim "kill fewer, kill carefully" - though infelicitous - captures the leadership's view.

According to a 2008 China Daily report the SPC has rejected about 15 percent death penalties since it removed provincial courts' final review power on Jan 1 2007. "Death sentences have been decreasing gradually, which means better human rights protection."

Xiao says it's "too early and unrealistic for China to abolish the death penalty because of the country's long history of capital punishment". Even for non-violent and financial crimes, deserve death "if their actions are extremely harmful to society" in his view.

"We need to keep the death penalty and use it as an effective deterrent, even though we can't exaggerate this factor. We must be extremely careful while handing down a death sentence. We should have human rights in mind."

"Extremely careful" may be a challenge when carnage as great as last week's has occurred. But looking back at the last major event in Xinjiang provides cause to believe that the rsponse will in fact be reasonably restrained. In April 2009 4000 local Xinjiang officials gathered in an arena to hear the announcement of the execution of two Uighur men who had driven an explosive-laden truck into a crowd of 70 border policemen, killing 17.

The attack, in Kashgar, Xinjiang, took place four days before the start of the Beijing Olympics in early August 2008. Trial and Supreme Court review were completed in four months. Although the procedural steps and barriers that we have do not exist there, the system - from a deterrent point of view, and retributive point of view appears to have functioned in an exemplary way. The punishment fit the crime, and justice was swift.

CSX v. Hensley - SCOTUS mandates jury instruction in "Fear of cancer" asbestos case

In Ayers v. Norfok & Western Rwy. Co. the Supreme Court, several years ago affirmed that because one who has asbestosis is at greatly increased risk of developing a different disease - lung cancer - a "fear of cancer" claim should be recognized under the FELA (Federal Employer's Liability Act) which governs injuries to railroad workers in interstate commerce.

The Supreme Court has now overturned a $5 million judgment in CSX v. Hensley because the Tennessee court refused to instruct the jury that the worker had to prove that his fear was "genuine and serious". The court affirmed that we expect juries to act raionally and to follow instructions, so the instruction is mandated, not to be sloughed off.

The majority (Stevens alone dissented) converted this bit of Ayers dicta into a mandatory instruction absent which a judgment will not stand:

“In their prediction that adhering to the line drawn in Gottshall and Metro-North will, in this setting, bankrupt defendants, the dissents largely disregard, inter alia, the verdict control devices available to the trial court. These include, on a defendant's request, a charge that each plaintiff must prove any alleged fear to be genuine and serious, review of the evidence on damages for sufficiency, and particularized verdict forms.” Id., at 159, n. 19

The Tennessee Court of Appeals ruling, 278 S.W.3d 282, 299 (Tenn. Ct. App. 2008) shows that plainitff's counsel acquiesced in the court's instruction. The verdict suggests that the jury did in fact think the fear was "genuine and serious", and the court found the evidence sufficient. The object lesson here is that instructions that seem to favor your client should not be accepted at face value. Sometimes it is wise to accept something less than ideal, that you can live with, to insure against appeal. One must keep in mind even at trial the atmosphere at the highest appellate levels. And here that means a conservative Supreme Court, none of whose members has ever been a trial judge or trial lawyer. The justices have here demonstrated themselves ready to develop what they claim to abjure - a preemptive federal common law that governs even trials in state courts with concurrent jursidiction over FELA claims.

p.s. - Ayers also demonstrated the vitality of joint and several liability, supported by a brilliant amicus brief written by Richard Wright on behalf of a bunch of tort law professors

Tuesday, July 7, 2009

McNamara's War

Robert Strange McNamara has died. The man was a strategic bombing planner when we firebombed Tokyo and Nagasaki, killing a million. He recounted years later that Gen. Curtis LeMay had remarked to him that if we had lost WWII they would have been tried for war crimes, according to the account in the Times obit.

There has been a lot written, like this LA Times blog post which quotes the late David Halberstam's harsh reaction to McNamara's 1995 memoir `In Retrospect: The Tragedy and Lessons of Vietnam', and James Fallows remarks here in which he acknowledges that he wouldn't be as harsh today as he was then - when the book came out.
The man had a lot to apologize for. His legendary 800 on the GMAT, the master of statistics and management, the "whiz kid" showed us that the "best and brightest" lacked moral vision. They went with the flow - but unlike dead fish - they built a fearsome military machine and used it relentlessly. To me the incendiary bombing of Japan, Hiroshima and Nagasaki, the Vietnam war were all of a piece - exaggeration of risk and devaluation of life, especially Asian life.

I selected the photo above to remind us that those who had moral vision - John Kennedy and Lyndon Johnson - when it came to civil rights - did not overcome the prevailing blind exaggeration of the "communist threat". And in Johnson and McNamara's case they did not appreciate the moral bankruptcy of our "strategic bombing" - the years of hell in Vietnam that Nixon and Kissinger prolonged.

McNamara wanted to be understood, I guess, as someone who regretted much. But the evil the man did lives after him and the good was interred with his bones.

ps. - James Fallows updates his observations by recounting Mark Feeney in the Boston Globe's recollection of a man greeting "Secretary McNamara" as a "hero"in a chance encounter. McNamara's crestfallen look said that he was not so proud of himself, a moment of moral vulnerability unimaginable for "Secretary Rumsfeld" or V.P. Cheney. It does speak well of the character of the man. -gwc

Friday, July 3, 2009

Paul Krugman Blues: Loudon Wainwright, III

When I read about the 476,000 jump in jobless in June I promptly started checking to see what Paul Krugman would say. For me as for many he has become the voice of left-wing Obama supporters - who want to see a bolder recovery plan, and a strong public option in healthcare reform. Loudon Wainwright III feels the same way. But he put it in song. So here is the Paul Krugman Blues:

Wednesday, July 1, 2009

New law grads: the salary gap

It's the kind of thing that led to the Sherman Antitrust Act. How is it that for so long the big firms were in lockstep and offered the same salary to starting lawyers, who stayed in rank as the years advanced? Did they have secret meetings at their Masonic Temples? Or the Odd Fellows Halls? Or did each just toe the line until somebody crossed it? Probably the last.

Anyway, just what is the value that separates, say $70,000 to start from $160,000?

The graph above, from NALP , dramatically illustrates that, among those who reported their post-2008- graduation landings to the counselors at their law schools, there are few starting salaries between those two poles. 42% report salaries between $40,00 and $65,000. 23% report starting at $160,000. (It's a large sample but subject to some discount for high-percentage reporting by the winners. It is respondents to a survey, not grads that are counted.)

So it is notable that the 700 lawyer anti-trust and litigation firm Howrey, LLP has broken ranks dramatically. The firm announced a new two-year apprenticeship model . They will hire law grads at $100,000 for a two year training period before they bump up billing rates commensurate with the market for the increased skill that the training provided.

The twin peaks above show that there will be plenty of candidates for those $100k jobs - and that there is plenty of room to reduce the number of $160k jobs. It looks like a bold competitive move by Howrey.

For more facts on the whole issue, check out this post on Legal Profession Blog by Bill Henderson.

`When you're from the Bronx you've got to be strong'

Fordham University historian Mark Naison —The Notorious Ph.D.—rapped "(When you're from the Bronx) You Got to be Strong," a tribute to Supreme Court Justice Nominee Sonia Sotomayor on behalf of the Bronx African American History Project at Fordham University. Music by DJ Charlie Hustle. (Portions of this video were shot at the PS 140 graduation ceremony on June 24, 2009.)