Tuesday, March 30, 2010

She really said it

"Behind every strong successful man lies a surprised woman."

Sarah Palin speaking of John and Cindy McCain at a rally with John & Cindy.
March 26, 2010

Monday, March 29, 2010

NJ Law Journal editorial: 'Unlawful Combatants' Have Miranda Rights

Image: Umar Farouk Abdulmutallab, right, stands before Magistrate Judge Mark A. Randon in federal court. www.sulekha.com
How should we treat those arrested here - like the apparent perpetrator of the abortive Christmas bombing on a Detroit-bound flight?  Like soldiers? Ordinary criminals? Or some other sort of person - an `unlawful combatant', perhaps?  The Fourteenth Amendment says they are persons and as such are subject to our constitutional regime.  The Editorial Board of the New Jersey Law Journal concurs with the approach embraced by U.S. Attorney General Eric Holder.

'Unlawful Combatants' Have Miranda Rights

New Jersey Law Journal
March 26, 2010

Criminal, soldier or unlawful combatant? That trichotomy frames the current hyperbolic debate about the Christmas Day bomber and his Miranda rights. The critics assert that a governmental policy of treating prisoners like Umar Farouk Adbdulmutallab as criminals within the criminal justice system is being soft on terror. We are "at war," we are often told.

The "we are at war" stance was problematic from the first. That is because the 1949 Geneva Convention III relative to the Treatment of Prisoners of War requires in Article 13 that prisoners of war "must at all times be protected, particularly against acts of violence or intimidation." The Convention in Article 14 states that such prisoners are to be "entitled in all circumstances to 
respect for their persons and honor."

Therefore, when the Bush administration formulated its policy, it declared that terrorists are not prisoners of war but instead are "unlawful combatants" not entitled to review by any court of the United States. And, impliedly, as unlawful combatants, not entitled to respect for their persons and honor.

We are told that treating the apparent perpetrator of the failed airplane bomb plot as a criminal is a sign of weakness, although nearly 200 persons accused of terrorist acts were so treated in the Bush-Cheney years. The strongest appeal is that the accused has been given rights to which he is not entitled — the right to silence and the right to counsel. The suggestion is that telling Abdulmutallab he has the right to remain silent and to counsel deprived us of information he otherwise would have given. We are aware of no evidence for such a statement.

Attorney General Eric Holder has responded in a sharply worded letter to Senate Minority Leader Mitch McConnell, in which he elaborates:

"Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government's legal authority to do so is far from clear. In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer.

"Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system."
We concur.

This editorial was published in the March 29, 2010 issue of the New Jersey Law Journal.  Copyright 2010. ALM Media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited.

"Virtual offices" Nixed by NJ Supreme Court Committees in Opinion 718

Mission Statement of the New Jersey Courts
We are an independent branch of government constitutionally entrusted with the fair and just resolution of disputes in order to preserve the rule of law and to protect the rights and liberties guaranteed by the Constitution and laws of the United States and this State.

The crisis of legal services - the high cost of legal representation  - is perhaps most widely felt in matrimonial law.  With house values often underwater and the unemployment rate at 10% - and higher for males 20 -50 - more people cannot afford lawyers.  One response is limited scope representation, often called "unbundling legal services".  Such efforts are designed to cut costs.  One way  is for lawyers to cut overhead - such as via a "virtual office".  There  you can rent space by the hour to meet a client by appointment, perhaps receive mail and phone calls for forwarding, where a receptionist could take a message.

But in response to an inquiry the New Jersey Supreme Court's Advisory Committee on Professional Ethics and its Attorney Advertising Committee  have found in Opinion 718 that a virtual office is verboten if it is the lawyer's only office. The Committee had little choice.  It doesn't make the rules.  The Supreme Court does.  And it has spoken.  The Court requires that a New Jersey attorney maintain a bona fide office for the practice of law:
 a bona fide office is a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney’s behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time. [R. 1:21-1(a).] 

The Committees sought to ease the way for the traditional sole practitioner, saying an
"attorney who is out of the office during normal business hours does not violate the bona fide office rule provided the absence from the office is occasional and the attorney is otherwise reachable by telephone, email, or the like. If the attorney is regularly out of the office during normal business hours, then a responsible person must be present at the office." 
 A lawyer who practices from his or her home - even occasionally such as full-time academic or one in another line of work might do - can be found there - at least at night.  But there would be no one present during normal business hours.  The requirement that  "responsible person must be present at the office" is a roadblock to the unbundling of legal services.

The Committees explain that the purpose of the bona fide office rule is "to ensure that attorneys are available and can be found by clients, courts, and adversaries."  True.  But a fuller dose of candor would acknowledge that the Rule is more fully explained by the determined effort of the organized bar in New Jersey - and a compliant Supreme Court - to retard the invasion of New Jersey practice by New York and Philadelphia-based law firms with only "virtual" presences in New Jersey.

The New Jersey Supreme Court is very protectionist.  It has refused New York's standing offer to admit New Jersey attorneys in good standing without taking the bar exam - if only New Jersey will reciprocate.  Until the New Jersey Supreme Court changes its tune and its rules its advisory committees will be unable to adapt the rules of practice to the emerging world of unbundled legal services, and attorneys available via iPhone 24/7.

Thursday, March 25, 2010

Elements of Style: Obama's Rhetoric

It's not reading smoothly off  a teleprompter, nor skillfully following a script  like Reagan, it's Obama's own rhetorical skills, his writing, that makes his speeches so effective.  He has definitely read Elements of Style and taken it to heart.  As E.B. White observes in that little classic, "these are the times that try men's souls" has a power that "these are trying times for men's souls" lacks.

If you examine this photo from the White House Flickr page you will see close-up the marked up copy of Obama's health care speech to the Congress in fall 2009, the beginning of the counterattack after the "death panel" summer of hyperbole.  You will see changes like those below.  Strikeouts and additions in Obama's hand show that the effectiveness of his rhetoric is not just in the skill of his speech writers, but in his own  concise phrasing, rhythm, and tone.

That large heartedness -[that compassion] - that concern and regard for the plight of others is not a partisan feeling.  It is not a Republican or Democratic feeling. [It is the same feeling I had when Sasha contracted meningitis at three months old, or when I watched my mother on her last day.  All of us have had that experience and so all of us, despite our disagreements, must  work to help those going through it now.   For that]  It, too, is part of the American character [of our country] -- our ability to stand in other people's shoes[,].  A recognition that we are all in this together, and when fortune turns against one of us, others are there to lend a helping hand; a belief that in this country, hard work and responsibility [to family and community and country] should be rewarded by some measure of security and fair play; and an acknowledgment that sometimes [only a] government [can ensure] has to step in to help deliver on that promise.

And thanks once more to James Fallows for his sharp eye for the fine points of Presidential rhetoric. 

Tuesday, March 23, 2010

Health Care Reform Signing Ceremony

The Big Mo

CongressObamaMomentum matters in football, in litigation, and in politics.  The Democratic Party has rallied since the Scott Brown shock.  After his macho Marlboro Man win over Martha Coakley we all went into a swoon, appalled, in my case, by the voters

But necessity and vote counting and Obama's reversion to campaign mode soon took over.  He rallied for the State of the Union.  A turning point was reached with Obama's impromptu tour de force at the House Republican retreat.  

Things took a decisive turn at the White House Health Care Summit when the Republicans presented their Party of No face and the Democrats met them down with patience and coherence.  

Now the big win with the House passage of the health care reform bill.  This graph reflects that.  It is the generic poll: do you prefer Democrats or Republicans in the Congress. 

The present moment: Democrats over Republican 44.4% to 44.3%.  Now that the Democrats have something to defend they will find the going much easier, I predict - and the blue dogs who couldn't bring themselves to vote for reform will find themselves weakened.  Rule of thumb: Dems who voted `Yes' win, `No' voters lose in November.

Thanks to TPM

Monday, March 22, 2010

NYCLU challenge to public defender system: one story behind the case

Clarence Gideon, a second story man, wrote out by hand a petition for writ of habeas corpus.   He had been denied his constitutional right to counsel, guaranteed by the United States Supreme Court.  He was one step ahead of the court, which appointed Abe Fortas to present the constitutional argument which spawned Gideon v. Wainwright (1963). It declared that a defendant facing jail has the right to a lawyer, and that if he cannot afford one, the court will appoint one.  The Supreme Court soon clarified that the 6th Amendment right to counsel meant the effective assistance of counsel.

Across the country Public Defenders carry that burden.  Kimberly Hurell-Harring was told by a public defender to plead guilty to a felony that wasn’t even a felony.  The PD had problems - he suffered from bouts of depression and had neglected civil clients.  None of that was known when the County commissioners accepted his bid for the annual $50,000 contract.  It was the low bid, the New York Times reports HERE.

The New York Civil Liberties Union has used Kimberly Hurell Harring as the poster child for a system that, it alleges in a class action suit, fails to provide effective assistance of counsel.  The New York Court of Appeals will soon hear the case, in which the defendant State of New York asserts that the trial judge Eugene P. Devine,  the former Albany county Public Defender, is biased in favor of the challengers and should recuse himself.    Devine denied the motion.

The State's defense is made difficult by the 2006 conclusion of a commission to study the problem, which reported to the Chief Judge of the Court of Appeals that "[t]he amount of monies currently allocated within the State of New York for the provision of constitutionally-mandated indigent defense is grossly inadequate".

For the gold standard of adequate defense by public defenders, look to the New Jersey Public Defender's capital defense unit.  Over 25 years, in 228 capital trials, and 60 death sentences, none was executed.  Finally - in December 2007 the Legislature repealed the death penalty and replaced it with life without parole for aggravated first degree murders.  See my essay Herald of Change and the proceedings of the symposium at which it was presented.

Sunday, March 21, 2010

Medicare it ain't but it is the biggest progressive win since Reagan was elected


I remember the passage of Medicare.  I was in college and little concerned with public matters.  That would come with the draft and escalation of the war in Vietnam by Lyndon Baines Johnson.  Johnson was a great President who made a fatal error - inability to think his way out of war in Vietnam.  The civil rights bill, the War on Poverty, and Medicare were his great accomplishments.

Since Reagan principally, public debate has been dominated by the conservative attacks on "entitlements".  It wasn't always so: the Department now known as HHS (Health and Human Services( was then known as HEW (Health Education & Welfare).  This relentless ideological assault on the modest social democracy of the Democratic Party has shaped public debate - so that we end up with a private insurance program - rather than the expansion of Medicare and single-payer plan that I, like most progressives, would have preferred.  Important  as this is, it is not Social Security, not Medicare.  But it IS the biggest progressive victory in Congress since Ronald Reagan was elected in 1980.  And it is Obama's victory.  Gives us Hope.

Health Care Reform: Why this moment matters

Speaker Nancy Pelosi:  

Tonight we join those who passed Social Security and civil rights.  Now tonight health care for all Americans.  We would not be here without the extraordinary vision and leadership of President Barack Obama.

Rather than offer my own take, I will just provide a link to National Book Award winner James Fallows HERE.

Rahm Emanuel: architect of Democratic majority

There is a lot of criticism of White House Chief of Staff Rahm Emanuel on the left.  He was too ready to compromise on comprehensive reform, sabotaged the public option, etc.  I am too far from the process to offer any fine-tuned criticisms.  But I am prepared to say that as former head of the Democratic Congressional Campaign Committee he was an architect of the Red to Blue strategy which brought us centrist, anti-abortion, blue dog Democrats.  

One price of that is compromise that many of us would prefer to avoid.  But Emanuel's strategy's success was confirmed today when Rep. Bart Stupak (D-MI) today signed on with health care reform, based on the Executive Order putting the Hyde Amendment permanently into law unless withdrawn by a President or overridden by legislation.  

The gain is tremendous expansion of government responsibility for the cost of health care and the estimated 32 million  increase in the number of people in America with health insurance.  I would personally prefer a single payer or Canadian system, but to succeed in politics one needs to be able to count votes.  Rahm Emanuel knows how to count votes.

Wednesday, March 17, 2010

Saw Stop - the first verdict

A Boston jury has awarded an injured man $1.5 million in a product liability case against Ryobi, a major table saw maker.  in which the defect alleged is the flesh-sensing braking mechanism invented by Stephen Gass, woodworker and patent lawyer,  who went on to found Saw Stop.  Here's the story.

SawStop brings table saw blades to a halt

Tuesday, March 16, 2010

Catholic Theologians Support Senate Health Care Bill

Twenty five leading theologians and evangelical leaders have urged Congress to pass the Senate Health Care bill, National Catholic Reporter reports.   [thanks to Religious Left Law for this) Twenty-five pro-life Catholic theologians and Evangelical leaders [among them Terrence W. Tilley, Avery Cardinal Dulles, S.J. Professor of Catholic Theology and Chair, Theology Department at Fordham] sent letters to members of Congress urging them not to let misleading information about abortion provisions in the Senate health care bill block passage of sorely-needed reform.  the project awas organized by Catholics in Alliance for the Common Good.
Catholics in Alliance for the Common Good, a Washington-based advocacy group, said that the Senate health bill upholds abortion funding restrictions and supports pregnant women.
The letter included a page by page analysis of the Senate bill as it pertains to abortion.
The group asked members of Congress “to make an informed decision about this legislation based on careful deliberation guided by facts.”
“We believe that the provisions below provide extensive evidence that longstanding restrictions on federal funding of abortion have been maintained. Furthermore, this bill provides new and important supports for vulnerable pregnant women,” the letter states.

Monday, March 15, 2010

Catholic Health Association backs health care reform

The U.S. Conference of Catholic Bishops has finally tilted to urging a NO vote on the health care reform bill.

But the Catholic Health Association - organization of Catholic hospitals - is clear: "we have been trying to get this done since Teddy Roosevelt.  It is not pro-life when there are 9 million uninsured children".
Here is Sister Carol Keehan, CEO of the CHA interviewed by U.S. Catholic magazine.  No point in excerpting it.  THIS IS THE BEST PITCH I HAVE HEARD FOR THE REFORM BILL.

Similarities between Massachusetts and Congressional health reform plans

Scott Brown, Lindsey, Graham, and even Mit Romney are trying to distance the Democratic Congressional health reofrm plan from the Massachusetts plan: because Brown and Romney inconveniently supported both. the principal difference is the federal cuts from projected Medicare subsidies of health insurers expenses.  But that is a logical consequence of the big increase in premiums due to the individual mandate and the absence of a public option.  Thanks to The Wonk Room for the chart below, and Think Progress for the lead and analysis. The video is David Axelrod's rebuttal.

Major ProvisionsSenate BillMassachusetts Bill
Individual MandateYesYes
Employer ResponsibilityYesYes
Affordability CreditsYesYes
Standard Benefit PackageYesYes
Establishes ExchangesYesYes
Prohibits Insurance Company From Canceling CoverageYesYes
Bans Denying Medical Coverage For Pre-existing ConditionsYesYes
Medicaid ExpansionYesYes
Medicare CutsYesNo Authority
Cap On High-Cost PlansYesNo

Saturday, March 13, 2010

China - Report on U.S. Human Rights Record

The Bureau of  Democracy, Human Rights & Labor of the U.S. Department of State issues annual country reports on human rights, taking as its touchstone the Universal Declaration of Human Rights.  The Bureaus's objective are to:
  • Hold governments accountable to their obligations under universal human rights norms and international human rights instruments
 The U.S. 2009 country report on China is typically blunt:
As in previous years, citizens did not have the right to change their government.  The People's Republic of China (PRC), with a population of approximately 1.3 billion, is an authoritarian state in which the Chinese Communist Party (CCP) constitutionally is the paramount source of power.
The government's human rights record remained poor and worsened in some areas. During the year the government increased the severe cultural and religious repression of ethnic minorities in the Xinjiang Uighur Autonomous Region (XUAR).Tibetan areas remained under tight government controls. The detention and harassment of human rights activists increased, and public interest lawyers and law firms that took on cases deemed sensitive by the government faced harassment, disbarment and closure. The government limited freedom of speech and controlled the Internet and Internet access. Abuses peaked around high-profile events, such as the 20th anniversary of the Tiananmen Square uprising, the 50th anniversary of the Tibetan uprising, and the 60th anniversary of the founding of the People's Republic of China.
The Information Office of the State Council of China, not to be outdone, has issued its own report  "U.S. Human Rights Record 2009".  It is a long list of laments gathered from conventional sources: our high crime rate and lack of personal security, racial disparities, high rates of incarceration, unemployment, poverty, health care deficiencies and the like.  All true and all largely irrelevant to the American view of what is wrong with China.

The era of Sino-American good feeling that we hoped for with Obama's election is not off to a particularly good start, as the Dui Hua Foundation has recently reported.  It is not just that Chinese, like Americans are thin-skinned and united in the view that each (not the other) is the greatest country on earth.

What strikes me is that the Chinese complaints are irrelevant to our basic critique, which is that China is not a liberal democracy.  Recitation of a social-democrat's list of American shortcomings is non-responsive to the American critique - which is essentially the same as that of the social democracies of northern Europe - though the Scandinavians are characteristically less "in your face" about it.

The left critique of the U.S. in the Cold War was that we would forgive almost any monarch or dictator for life so long as he hated the Communists.  Liberals never wavered in holding up liberal democracy as the ideal for the entire world.  

So what can we say to Chinese that may have an impact?  As a government, I don't know, but for myself, it is this:  for a party that proclaims Marxism as a guide, the Communist Party's self-conception is decidedly ahistorical.  The most powerful message of Marxism is the inevitability of change, that materialism which expresses itself in the maxim of thesis-antithesis-synthesis.  
The fact that the Chinese Communist Party governs now - and generally successfully - does not mean that it must be the party permanently in power, that there can be no other, that any alternative is subversive.  The fundamental critique therefore is that multi-party democracy and the freedom to form peaceful and independent organizations is a historical necessity.

Thursday, March 11, 2010

NJ Advisory Committee Suggests Supreme Court Re-examine Bar on Contingent Fees in Criminal Cases

New Jersey is the most urbanized state, so there are lots of "moving violations" - and towns through which major highways pass depend on their municipal courts as profit centers.  So it is not surprising that recipients of traffic summonses are soon recipients of a post card or letter from a lawyer offering representation.  One such lawyer is Jeremy Bhatt of Jersey City who advertises

"If we cannot reduce or eliminate your points or charges, we provide a full refund of the legal fees. We are confident we can help you."

`Overcharging' is so widespread that it is unlikely that Bhatt ever had to refund a fee.  But now the state Supreme Court's Advisory Committee on Professional Ethics has barred the practice, even in quasi-criminal cases like traffic violations.  The Committee "recognizes that this potential conflict does not present itself in all matters heard in municipal court.  For example, in motor vehicle cases, the interests of the attorney and the client are aligned.  Many clients do not seek a full acquittal of motor vehicle charges and expect the attorney to negotiate an agreement imposing a lesser sanction than that of the original charged offense."

But now in Opinion 717 which binds the state's Ethics Committees unless reversed by the state Supreme Court - the ACPE finds that the flat prohibition of contingent fees in criminal matters RPC 1.5(d)(2) applies even to traffic matters because such matters are considered quasi-criminal and

“In quasi-criminal matters, basic rights of criminal defendants are protected and certain principles of criminal procedure are followed, such as the burden of proof beyond a reasonable doubt, presentment in the name of the State, prohibition against double jeopardy, and the like.”

The Committee however,
"recognizes that the potential conflict addressed by RPC 1.5(d)(2) is not present in many municipal court matters and the Rule may be fairly criticized as overbroad. Accordingly, the Committee has invited the Supreme Court, in its administrative capacity, to evaluate this Rule and consider whether a revision would be appropriate. "

Opinion 717 cites Pamela Karlan's observation that

“ If an attorney gets paid only if she obtains an outright acquittal or dismissal of all charges, she may experience a conflict of interest when faced with a plea bargain: her client might be better off pleading guilty to reduced charges, but the lawyer will lose her fee if he does. Similarly, at trial, if the attorney asks for instructions on lesser-included offenses, her client may avoid conviction on the top count, but again she will lose her fee.” [Karlan, P., Contingent Fees and Criminal Cases, 93 Colum. L. Rev. 595, 611 (April 1993)].

But it does not embrace her conclusion.  Indeed it could hardly do so, even if so inclined, given its narrow jurisdiction as interpreter of the Rules of Professional Conduct.  But the article by Professor Karlan cited in the Committee’s memo goes on to argue:

“[T]he contingent fee provides the flip side to the danger of compromised representation in flat-fee cases.  There, the attorney faces an incentive to pressure her client into an early plea even when it is not in his best interest.  Here, by contrast, she faces an incentive to pressure her client into going to trial and gambling on an outright acquittal even when it is not in his best interest.  Again, there is nothing uniquely disadvantageous about a contingent fee; if the perverse incentive created by flat fees fails to justify a per se ban, then it is hard to see why the perverse incentive created by contingent fees justifies one.

Moreover, it is entirely possible to imagine contingent-fee arrangements that do not increase the danger of compromised representation.  For example, a client might agree to provide his lawyer with a bonus if charges are dismissed prior to indictment, if he is not convicted on the top count, or if he receives a non-jail sentence.   Contingent bonuses thus can serve to combat the countervailing incentive flat fees might otherwise create.”

The value most jeopardized by the RPC 1.5 (d) prohibition on contingent fees in criminal cases is client autonomy.   The late Professor Fred Zacharias addressed the prohibition skeptically.  He wrote:

“It is difficult to understand why these [contingent fee]  arrangements warrant bright-line prohibitions more than others in which lawyer and client interests potentially compete.  The consequences of unwise client choices in [e.g. criminal cases] are similar to the consequences of standard contingency arrangements. If the code drafters' fear is that clients are less likely or less able to comprehend the lawyers' incentives in these areas, less intrusive mechanisms exist for assuring reasonable client choices.   For example, the codes could address the potential conflicts directly,  regulate warnings the lawyers must provide  and the influence lawyers may exert,  or limit the prohibitions to especially unreasonable arrangements.   The rules' blanket bans seem unnecessarily broad.”  [Fred C. Zacharias, Limits on Client Autonomy in Legal Ethics Regulation, 81 Boston University Law  Review 199 (2001)]

There will certainly be no hue and cry to overturn the ban, particularly since the bar generally is skeptical of such advertising appeals as undignified or worse, as the New Jersey Law Journal's account  shows. But the issue has long smoldered.

Why, after all, should a defendant charged with a crime not be free to contract to make value based billing agreements?  And isn't it the case that a lawyer who has been paid in full has as great a potential conflict of interest - to end the case early - as does a lawyer whose fee will be enhanced by a favorable result at trial?

China's Supreme People's Court Issues Annual Work Report

China’s Supreme People’s Court (SPC) has issued its annual work report to the National People’s Congress – the legislature which is the highest governmental authority. The numbers are, well, huge.  But for an increase in transparency we’ll have to wait another year.  Death sentences, executions, numbers of prisoners, detentions, etc. that we would expect to be able to find through the Bureau of Justice Statistics and private organizations like the Death Penalty Information Center are absent, at least in the highlights.
-- The SPC dealt with 13,318 cases of various types and concluded 11,749 cases, up 26.2 percent and 52.1 percent year on year, respectively. Local courts at various levels handled 11.37 million cases of various types, up by 6.3 percent.
-- Chinese courts concluded 767,000 criminal cases and sentenced 997,000 criminals, down by 0.2 percent and 1.1 percent respectively.
- - 5.797 million civil cases, up by 7.7 percent over 2008.

FDA: no "clear connection" between Fosamax and hip fractures

The drug Fosamax (alendronate) and other oral bisphosponates are widely prescribed as a treatment for osteoporosis - and as a preventive measure.  Ironically jaw bone damage is a now-recognized complication.  Recent reports  have suggested that it may increase the rate of serious hip fractures.  The FDA is not yet ready to jump on that bandwagon.  It reports in an advisory HERE that "At this point, the data that FDA has reviewed have not shown a clear connection between bisphosphonate use and a risk of atypical subtrochanteric femur fractures. "

Wednesday, March 10, 2010

Jon Stewart tangles with Marc Thiessen on the `al Qaeda 7' - Justice Department Lawyers who represented Guantanamo Detainees

In the wake of the controversy over Liz Cheney's web attack ad on Justice Department lawyers who once represented  Guantanamo detainees Jon Stewart invited a defender - Marc Thiessen -and as charged, barely let Thiessen get in a word.  So the extended interview is posted on the web.  Thiessen defends not only Cheney's notorious attack ad, but also Charles Grasley and the Republicans on the Senate Judiciary Committee who started the fight.

The Daily Show With Jon StewartMon - Thurs 11p / 10c
Exclusive - Marc Thiessen Extended Interview Pt. 1
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Milavetz: bankruptcy lawyers can give practical advice without running afoul of statute

Back in June I discussed the Milavetz case which challenged the 2005 Bankruptcy Reform Act amendments:

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).

The United States Supreme Court has now  decided the Milavetz case, which presented this question:
(1) Do provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act regulating attorneys’ advice to clients and mandating certain advertisement disclosures violate the First Amendment? Milavetz, Gallop & Milavetz, P.A., et al. v. United States, 541 F.3d 785 (8th Cir. 2008)
 I am pleased to report that the decision is pretty close to my prediction, which was 
1) NO.  11 U.S.C. 526 (a) (4) prohibits only pre-filing borrowing that is intended to defraud creditors, not, for example, refinancing a loan in order to reduce interest rates on debt preparatory to filing a plan of reorganization under Chapters 13 or 11. 

As Renee Knake observed at Legal Ethics Forum, the key passage in Justice Sotomayor's majority opinion is:

After reviewing these competing claims, we are persuaded that a narrower reading … is sounder,  although we do not adopt precisely the view the Government advocates. The Government's sources show that the phrase “in contemplation of” bankruptcy has so commonly been associated with abusive conduct that it may readily be understood to prefigure abuse. …[W]e think the phrase refers to a specific type of misconduct designed to manipulate the protections of the bankruptcy system … [and] conclude that [it] prohibits [an attorney] only from advising a debtor to incur more debt because the debtor is filing for bankruptcy, rather than for a valid purpose..

Tuesday, March 9, 2010

The Plaintiff-funded Research Debate

Bias is one of the most effective charges a cross-examiner can make.  He who pays the piper calls the tune is the common sense maxim.  But the rules of evidence do not exclude biased testimony.  They permit exposure of bias to the fact-finder.  Federal evidence rule 702 , like its state analogs, compels exploration of expert opinion testimony's basis in reason before it can be admitted.  And the rules of discovery provide powerful means to identify, explore, and expose bias - the subpoena, the deposition, the demand for production of documents .  

Plaintiffs in Accutane (isotretinoin) product liability cases face difficult proof problems: their depressed clients (or their survivors) claim that their emotional state, already troubled, was worsened substantially by the drug.  The public health survey evidence marshaled is a piece of a circumstantial evidence argument.  But such proofs may be seen as suggestive only and lack persuasive force for many.  Plaintiffs' lawyers therefore have sought to establish that the drug induces a physiological process which so aggravates depression that patients have been driven to suicidal acts that otherwise would not have occurred.

There is a lively debate about such a study funded by plaintiffs' lawyers in part, which was published HERE in the American Journal of Psychiatry.  The abstract reports the plaintiff-favorable result:

OBJECTIVE: Although there have been case reports suggesting a relationship between treatment with the acne medication isotretinoin and the development of depression and suicide, this topic remains controversial. In order for isotretinoin to cause depression, it must have an effect on the brain; however, the effects of isotretinoin on brain functioning in acne patients have not been established. The purpose of this study was to assess the effects of isotretinoin on brain functioning in acne patients. METHOD: Brain functioning in adults was measured with [18F]fluorodeoxyglucose positron emission tomography before and after 4 months of treatment with isotretinoin (N=13) or an antibiotic (N=15). RESULTS: Isotretinoin but not antibiotic treatment was associated with decreased brain metabolism in the orbitofrontal cortex (–21% change versus 2% change for antibiotic), a brain area known to mediate symptoms of depression. There were no differences in the severity of depressive symptoms between the isotretinoin and antibiotic treatment groups before or after treatment. CONCLUSIONS: This study suggests that isotretinoin treatment is associated with changes in brain functioning.
Industry-oriented critics, like the blogger/neuroloigst Barbara Martin at Pathophilia,  find that such evidence presents a "disturbing" conflict of interest.  But the the Appellate Division of the Superior Court of New Jersey  in Palazzolo v. Hoffman LaRoche last month held that such testimony may be admissible to prove "general causation" - that the drug may play a role in causing depression.  

Torts scholar William Childs has argued that the focus on methodology mandated by the landmark Daubert opinion in 1992 undercuts the assertion that such studies are impermissibly biased and should not be admissible in court.  William G. Childs, "The Overlapping Magisteria of Law and Science: When Litigation and Science Collide" (March 22, 2006)bepress Legal Series. Working Paper 1178

For more on the issues of bias and expert witnesses, check out Prof. Childs post on Torts Prof Blog HERE  
Thanks to Pathophilia for the graphic.