Saturday, August 29, 2009

Edward M. Kennedy - the last word - letter to Pope Benedict XVI

The last words in this series of posts on the death of Edward M. Kennedy belong to him.

It has been very painful for me to see bishops denounce and refuse communion to politicians, like Joe Biden, and John Kerry who embrace Vatican II Catholicism, but have refused to embrace as a public demand the criminalization of abortion.

Fortunately Edward Kennedy never suffered that humiliation. His parish priest delivered the homily at his funeral, Cardinal Sean O'Malley presided at the funeral mass, and Archibishop Theodore McCarrick presided at the graveside at Arlington National Cemetery.

There Cardinal McCarrick read the letter from the Senator to the Pope which President Obama carried. It is a profession of faith by a man who was inspired by his murdered brothers, and by Pope John XXIII, who presided briefly over the Church, and released the spirit of renewal expressed in the Council known as Vatican II. And the Archbishop Emeritus also read Pope Benedict's gracious reply for which we are all grateful. - GWC

At the graveside service at Arlington National Cemetery for Senator Edward M. Kennedy, Theodore Cardinal McCarrick, archbishop emeritus of Washington, D.C. and a family friend, read portions of the letter that President Obama delivered on Kennedy's behalf to the pope last month and portions of the pope's reply.

Kennedy's letter:

"Most Holy Father, I asked President Obama to personally hand deliver this letter to you. As a man of deep faith himself, he understands how important my Roman Catholic faith is to me, and I am deeply grateful to him.

"I hope this letter finds you in good health. I pray that you have all of God’s blessings as you lead our Church and inspire our world during these challenging times.

"I am writing with deep humility to ask that you pray for me as my own health declines. I was diagnosed with brain cancer more than a year ago, and, although I continue treatment, the disease is taking its toll on me. I am 77 years old and preparing for the next passage of life.

"I have been blessed to be a part of a wonderful family, and both of my parents, particularly my mother, kept our Catholic faith at the center of our lives. That gift of faith has sustained, nurtured and provided solace to me in the darkest hours. I know that I have been an imperfect human being, but with the help of my faith, I have tried to right my path.

"I want you to know, Your Holiness, that in my nearly 50 years of elective office, I have done my best to champion the rights of the poor and open doors of economic opportunity. I’ve worked to welcome the immigrant, fight discrimination and expand access to health care and education. I have opposed the death penalty and fought to end war. Those are the issues that have motivated me and been the focus of my work as a United States Senator.

"I also want you to know that even though I am ill, I am committed to do everything I can to achieve access to health care for everyone in my country. This has been the political cause of my life. I believe in a conscience protection for Catholics in the health care field and will continue to advocate for it as my colleagues in the Senate and I work to develop an overall national health policy that guarantees health care for everyone.

"I have always tried to be a faithful Catholic, Your Holiness, and though I have fallen short through human failings, I have never failed to believe and respect the fundamental teachings. I continue to pray for God’s blessings on you and our Church and would be most thankful for your prayers for me."

Pope Benedict XVI's reply:

"The Holy Father has read the letter which you entrusted to President Barack Obama, who kindly presented it to him during their recent meeting. He was saddened to know of your illness, and has asked me to assure you of his concern and his spiritual closeness. He is particularly grateful for your promise of prayers for him and for the needs of the universal Church.

"His Holiness prays that in the days ahead you may be sustained in faith and hope, and granted the precious grace of joyful surrender to the will of God our merciful Father. He invokes upon you the consolation and peace promised by the Risen Savior to all who share in His sufferings and trust in His promise of eternal life.

"Commending you and the members of your family to the loving intercession of the Blessed Virgin Mary, the Holy Father cordially imparts his Apostolic Blessing as a pledge of wisdom, comfort and strength in the Lord."

Ted Kennedy - Eulogy for Robert

at St. Patrick's Cathedral, June 8, 1968

Ted Kennedy, Jr. Eulogy

Ted Kennedy' Jr.'s remembers his father. Text is HERE

President Obama's Eulogy for Sen. Edward Kennedy

Friday, August 28, 2009

Meritocracy? Low income hinders college attendance for even the highest achieving students

30% of low scoring students from high income families complete college. 29% of high scoring students from low income families complete college.

The message of these numbers, on the correlations between test scores, family income, and completing college is simple for us, members of the educated middle class: humility, gratitude for our good fortune, respect for those who strive under more adverse conditions.

For the fuller story, go to the Economic Policy Institute HERE.
Click on graph to expand.

Thanks to Paul Krugman for the tip.

Thursday, August 27, 2009

John Lewis on Edward Kennedy

Congressman John Lewis, a hero of the southern lunch counter "sit-in's" as an activist in the Student Non-Violent Coordinating Committee (SNCC), pays tribute to Senator Kennedy - and his brothers.

With Edward Kennedy's death we lose an important link to our past - those who not only remember but played a key role in the defeat of de jure racial segregation. It remains the case that few, if any, of those who now insist that the constitution does not permit taking race into account played any leadership role in the overthrow of the American system of Apartheid known as Jim Crow.

Ted Kennedy on the assassination of Martin Luther King

1968 while the fires burned and troops were in the street Kennedy spoke of the Rev. Martin Luther King and the dangers to the country.

"What has become of our land? How many good men must we give before we finally face the fact that the weakness of our society is the weakness in ourselves. We have lets events master us rather than we them. We have let the haters take the lead and we are paying the price for that today. Hundreds of years of oppression must be accomodated not by the least we can do but by the most we can do."
The introductory remarks end at about the 5 minute mark.

Wednesday, August 26, 2009

Ted Kennedy - Why universal comprehensive health insurance reform

Every American should have the same health insurance as the members of the Congress of the United States.

This is the cause of my life. It is a key reason that I defied my illness last summer to speak at the Democratic convention in Denver—to support Barack Obama, but also to make sure, as I said, "that we will break the old gridlock and guarantee that every American...will have decent, quality health care as a fundamental right and not just a privilege." For four decades I have carried this cause—from the floor of the United States Senate to every part of this country. It has never been merely a question of policy; it goes to the heart of my belief in a just society. Now the issue has more meaning for me—and more urgency—than ever before. But it's always been deeply personal, because the importance of health care has been a recurrent lesson throughout most of my 77 years.

— Ted Kennedy
April 3, 2009

Edward M. Kennedy

John, Robert, and Edward. We miss them all. Joseph Kennedy, Jr. we never knew.

Ted's leadership was important to me as we moved to opposition to the war. He did it by the work of his subcommittee on refugees in Vietnam.

He stood more than anything for protecting the health of the American people.

We have missed his voice in this sadly debased debate on health insurance.

Chris Matthews got it right this morning: Barack is the last brother.

Let us hope that Barack Obama can do what LBJ did to solidify John Kennedy's legacy by signing the Civil Rights Act of 1964.

Images: New York Times

Tuesday, August 25, 2009

Bernanke re-appointment - humbling reminder of mistakes

I don't have any objection to the Bernanke reappointment. He has been more aggressive than I ever expected a Republican to be. Credit markets drying up? Just print more more money. That was the Bernanke approach and a good one.

But he should be reminded that in 2005 he insisted that there was NO Housing Bubble.

Sunday, August 23, 2009

Achievements of Asbestos Lawyers

After the landmark opinion by (old) 5th Circuit Judge John Minor Wisdom
in Borel v. Fibreboard plaintiffs' lawyers took the evidence amassed by Dr. Irving Selikoff and others, and determinedly confronted the difficult issues in asbestos cases: identification of the defendant suppliers, the problem of multiple suppliers, apportionment of liability, proving causation of disease, the impact of smoking,the problem of latency - delayed development of disease many years after inhalation when witnesses and records (if any) were unavailable.

The plaintiffs' lawyers and their efforts have been widely disparaged - their success painted as greed, or the product of dishonesty, etc. Prof. Anita Bernstein - a stranger to the litigation - has done plaintiffs' lawyers (and I was one) the mitzvah of recognizing their collective achievements as zealous advocates for their clients in her new article Asbestos Achievements, published in Southwestern Law Review and available on SSRN HERE.

Images: Judge John Minor Wisdom, Dr. Irving Selikoff, Prof. Anita Bernstein

Devastatingly accurate - Krugman's warning six months ago

Barack Obama is on Martha's Vineyard, relaxing and looking back. And forward we trust. September is here. The unemployment rate is 9.4%. The web is an amazing tool - making it so easy to retrieve information and determine if our predictions have panned out.

So go back to March 2009 for Paul Krugman's warning about the inadequacy of the stimulus - so contrary to the "common sense" that it was too much, rather than too little:

Published: March 9, 2009
The Obama administration’s economic policy is already falling behind the curve, and there’s a real, growing danger that it will never catch up......
Click on the headline to get the story.
p.s. - Tim Geithner should pull out some of his old memos to see how his predictions stood up.

Saturday, August 22, 2009

Betsy McCaughey vs. Jon Stewart - the Dead Parrot Strategy

It was a much anticipated confrontation: the truth seeker against the fantasist and liar. Betsy McCaughey - the patently incompetent once Lieutenant Governor of New York - has proven to be a brilliant fabricator - fabricating the Obama Health Plan Death Panels canard later embossed on Sarah Palin's lips, and Charles Grassley's, too.

McCaughey met Stewart on his Daily Show turf HERE. He read the words of the draft statute: doctors shall discuss with "life sustaining measures" with patients who have living wills. That means euthanasia, says McCaughey with a straight face. But it says life-sustaining says Stewart. No it doesn't says McCaughey. She did OK by following the Dead Parrot strategy demonstrated in thie Monty Python classic.

Thanks to James Fallows at The Atlantic for the lead and the discussion of the debate.

許志永 Xu Zhiyong - law professor under arrest

It is difficult to find any explanation for the arrest and detention of Beijing law professor and activist Xu Zhiyong 許志永 beyond hostility to his activism - which appears to have been entirely within legal confines. Gongmeng
公盟, his organization - which styles itself in English as the Open Constitution Initiative - has reported that its accounts have been frozen and that the authorities have refused to accept the tender of delinquent taxes and have suspended the group's registration on technicalities.

As I previously discussed, this action has drawn wide criticism, including a New York Times Op-Ed piece by former U.S. Attorney General Richard Thornburgh HERE.

A deputy to the local assembly and a law teacher, Xu is accused of failing to pay taxes on a grant from the Yale China Law Center. Such offenses, if they occurred, are curable. The harshness of the official response evidences no interest in cure but rather seems designed to dismantle the organization and, perhaps, to bar Xu from work as a lawyer.

The Leitner Center at Fordham has organized the Committee to Support Chinese Lawyers. Their coverage and recent public letter to premier Wen Jiabao can be found HERE. Coverage and documents can also be found at Chinese Law Prof blog.

p.s. Reuters and the AP report here that Xu Zhiyong has been released (August 23, 2009)

Thursday, August 20, 2009

Berkeley Dean Christopher Edley on John Yoo and academic freedom

Over at
Opinio Juris a memo to the law school community by Dean Edley about John Yoo's fitness to teach has been published. Yoo is a tenured professor at Berkeley. His academic freedom and the burden borne by those who would have him discharged are addressed in a thoughtful memo by Dean Christopher Edley, the link to which is above.

Recently a "comedian", in a bit of "guerilla theater" intruded on Yoo's classroom, disrupting it. His home has been picketed and he is the subject of much vituperation.

Yoo is the principal drafter of the most notorious of the 'torture memos' and is a defendant in a civil rights action by Jose Padilla who alleges he was tortured by persons who claim authorization based on Yoo's legal opinions while at the Department of Justice Office of Legal Counsel. District Judge Geoffrey White has allowed the lawsuit to proceed. Yoo also faces professional ethics complaints filed by a citizen organization called Velvet Revolution.

P.S. - Edley's statement has generated lots of commentary. Legal Ethics Forum provides links to comments in the NY Times, by Berkeley students, and readers at Balkinization HERE

Images: Christopher Edley, John Yoo, protest poster

Tuesday, August 18, 2009

Christopher Christie - Lame explanations

A $46,000 mortgage loan to a subordinate at the Department of Justice, with payments of $499/month, including interest has now been acknowledged.

"I never thought of it as an asset," [said former U.S. Attorney for New Jersey and Republican candidate for Governor] Christopher Christie today. "I saw it as money we loaned to friends who were in financial trouble and they were paying us back."

He said he was amending his tax returns and all his disclosure reports, according to the Star Ledger account.

Now, to be clear, Chris Christie has long struck me as a bully and a grandstander.

But that's enough money to be an asset. When I prepare my monthly budget I show the $1,000 loan to my boat club as an asset.

The dodgy explanation presents a character issue. A more likely explanation than oversight is that lending money to your fellow public employee subordinate at the U.S. attorney's office is an embarassing and bad idea. It creates loyalties and obligations that could interfere with independent professional judgment on the many matters of public policy that are confronted by the United States Department of Justice. And as supervisor one would be slow to discharge an employee who owed her superior such a substantial sum.

The New York City Charter Sec. 2604 (b) prudently declares making such a loan to be "prohibited conduct":

"14. No public servant shall enter into any business or financial relationship with another public servant who is a superior or subordinate of such public servant."

A loan from a subordinate would be more grave, but the basic principle is plain enough: the public is entitled, and the Rules of Professional Conduct require, a lawyer for the public to make independent judgments. Being indebted to your boss - the chief federal law enforcement officer in the state - threatens that independence.

The Rules of Professional Conduct are directed to the problem of conflicts of interest regarding current or past clients. They don't fit this circumstance. A more apt analogy is Canon 5 of the federal Code of Conduct for United States Judges. It enjoins financial transactions that may "interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in frequent transactions with lawyers or other persons likely to come before the court on which the judge serves."

Since the U.S. Attorney as a federal law enforcement officer must, like Caesar's wife, avoid even the "appearance of impropriety" the judicial canons are a more apt fit.

The mortgage and loan here suggest a risk of favoritism and cronyism that present a significant basis for criticism of Mr. Christie's conduct that voters should consider when judging whether or not to take his campaign claims for himself at face value.

p.s. August 25, 2009 - Michele Brown resigned today as First Assistant U.S. Attorney, to avoid being a distraction in the work of the office of the U.S. Attorney.

Acting U.S. Attorney Ralph Marra assured the office will continue to be distracted by the controversy as, according to the Star Ledger, he responded angrily to Brown's resignation:

"I know how distracting these transitions can be, and this one has been made more difficult as the Office has been unfairly drawn into a political campaign through the barrage of FOIA requests; the purported controversy over Michele's personal loan, and a wholly trumped up (and then apparently leaked) complaint, reportedly about my generic and general comments at the Bid Rig press conference and the timing of the Bid Rig takedown," Marra wrote, referring to the FBI code name for the series of corruption arrests. "We owe it to the public and ourselves to keep the work of the Office going at our usual pace and at our usual standard of excellence."

Image: Christopher Christie with Michele Brown and Jeff Chiesa, a former aide

Thursday, August 13, 2009

谢谢 唐飞 和长江大学

Thanks to Tang Fei 唐飞 and Yang'tze University Law Law School 长江大学 法学院, Jingzhou 荆州, Hubei Province 湖北, China 中国for a great year. Tang Fei visited Fordham for a year and was a joy for me. He was a diligent student, a fine lawyer, and a great helpmate as I continue my Long March to minimal competence in Chinese.

Here we are with 王胜明, a Fulbright scholar (and my collaborator) in front of Fordham and at my favorite Chinese Restaurant Grand Sichuan East, 大四川饭馆儿.

I hope we meet again soon in China!

Monday, August 10, 2009

Chief Chinese Prosecutors set to issue rules barring coerced testimony in death penalty trials

The Supreme Procuratorate in China - the nation's chief prosecutorial office - is set to release regulations putting teeth in the statutory ban on evidence procured through unlawful methods, particularly in death penalty cases according to an account in the
South China Morning Post.

An editorial in ND Daily, the apparent the source of the SCMP report, is HERE. The editorial says that despite the criminal law's ban, and Supreme Peoples Court interpretations, unlawfully obtained testimony is still used.

The SCMP piece follows:

Anti-torture measures in works, paper says
Ng Tze-wei
Aug 11, 2009

The mainland will soon release a judicial document that will for the first time spell out that confessions obtained through torture will not be admissible evidence in court, according to The Southern Metropolis News.

Even though the mainland criminal code has long banned torture during the questioning of suspects, and even made it a criminal offence, forced confessions still overshadow the judicial system.

The Renmin University School of Law recently researched 137 wrongful convictions imposed in the 1980s and determined that 164 men and women had been wrongfully deprived of a total of 720 years of freedom, one had
been executed, and another had died in prison. Half of the wrongful convictions involved murder charges.

The Southern Metropolis News, which is based in Guangzhou, quoted Renmin University professor Liu Pinxin as saying that the reason wrongful convictions tended to concentrate on felonies was that police were under pressure to solve the cases within a time limit, and there was little social sympathy for people suspected of serious crimes.

As the mainland reviews its Criminal Procedure Law, debate has been rekindled over whether criminal law should follow the principle of "protecting individual rights" or "protecting the masses through heavy punishment". The way evidence is obtained is one of the issues at the forefront.

Using the death penalty as a starting point, the Supreme Procuratorate will soon introduce a new regulation on death-penalty trials and the use of evidence, which will specify the inadmissibility of confessions obtained through torture.

China University of Political Science and Law professor Wang Shunan hailed the pending regulation as "an extremely important step". He said it would also force the country's police and procuratorates to shift from an emphasis on confession and testimony to collecting solid circumstantial and documentary evidence.

"In the past it was endorsed only in theory; now it will be given as a procedure," Professor Wang said. "So if torture is used now, there will be clearly stated legal repercussions."

Under the new regulation, the procuratorate must also investigate and bring charges if it becomes aware of torture or any form of tampering with evidence. It will also specify six scenarios in which evidence will be considered to have been gathered illegally and cannot be used in court.

Criminal lawyer Xia Lin said he would reserve judgment about the changes until he saw the details.

"The key is who will have the liability to prove that the confession was obtained through torture. Right now unless a defendant dies or suffers serious injuries, it is very difficult for the defendant to prove that he has been tortured," Mr Xia said.

"The police should bear the burden of proof that they have not used torture."

Other measures such as filming whole interrogations, allowing the presence of lawyers during interrogation and separating interrogation facilities from detention facilities are also aimed at stopping torture.

Thanks to Otto Malmgren for the tip.

Monday, August 3, 2009

ABA Clarifies R. 1.10 - screening applies only to laterals

Center for Professional Responsibility
The American Bar Association has approved
Report 109. The ABA has further amended R. 1.10 to clarify that the screening procedures permitted under the Rule are allowed only when a lawyer moves laterally from one practice situation to another.

The nub of it is this: a lawyer who is disqualified from having an adverse relationship to a client of her former firm does not infect the new firm if she is timely screened by the new firm, in the manner described in amended R. 1.10.

The amended black letter rule is:


(a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9, unless

(1) the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm; or

(2) the prohibition is based upon Rule 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, and

(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom;

(ii) written notice is promptly given to any affected former client to enable the former client to ascertain compliance with the provisions of this Rule, which shall include a description of the screening procedures employed; a statement of the firm's and of the screened lawyer's compliance with these Rules; a statement that review may be available before a tribunal; and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures; and

(iii) certifications of compliance with these Rules and with the screening procedures are provided to the former client by the screened lawyer and by a partner of the firm, at reasonable intervals upon the former client's written request and upon termination of the screening procedures.

(b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless:

(1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and

(2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter.

(c) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in Rule 1.7.

(d) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11.

Thanks to Andrew Perlman at Legal Ethics Forum for the tip.