Monday, August 30, 2010

Countering the demagogues: Pope Benedict at Al_Hussein Bin Talal Mosque - 2009

Pope Benedict XVI at Dome of the Rock mosque, Jerusalem

As nativism and paranoia continue to flourish here (e.g. the current phony material circulating about praying Muslims blocking traffic every Friday in Manhattan refuted by, I thought it would be good to post the excerpt below from Pope Benedict XVI's address to Muslims last year in Jordan.
"Places of worship, like this splendid Al-Hussein Bin Talal mosque named after the revered late King, stand out like jewels across the earth’s surface. From the ancient to the modern, the magnificent to the humble, they all point to the divine, to the Transcendent One, to the Almighty. And through the centuries these sanctuaries have drawn men and women into their sacred space to pause, to pray, to acknowledge the presence of the Almighty, and to recognize that we are all his creatures.
For this reason we cannot fail to be concerned that today, with increasing insistency, some maintain that religion fails in its claim to be, by nature, a builder of unity and harmony, an expression of communion between persons and with God. Indeed some assert that religion is necessarily a cause of division in our world; and so they argue that the less attention given to religion in the public sphere the better. 
Certainly, the contradiction of tensions and divisions between the followers of different religious traditions, sadly, cannot be denied. However, is it not also the case that often it is the ideological manipulation of religion, sometimes for political ends, that is the real catalyst for tension and division, and at times even violence in society? 
In the face of this situation, where the opponents of religion seek not simply to silence its voice but to replace it with their own, the need for believers to be true to their principles and beliefs is felt all the more keenly. Muslims and Christians, precisely because of the burden of our common history so often marked by misunderstanding, must today strive to be known and recognized as worshippers of God faithful to prayer, eager to uphold and live by the Almighty’s decrees, merciful and compassionate, consistent in bearing witness to all that is true and good, and ever mindful of the common origin and dignity of all human persons, who remain at the apex of God’s creative design for the world and for history."

Sunday, August 29, 2010

Ted Kennedy - one year ago - a life well lived

1st campaign - 1962
One year ago - on August 25, 2009 - thousands stood in line on the shore of Boston Harbor to file in respect past the casket of Senator Edward Kennedy. 
His death was a time of hope as those of us who believed in his mission and admired his courage in the face of his final illness rallied and remembered him, hoping that his message would carry the day on health care.  The voters of Massachusetts carried no such sentiment as they voted for the Tea Party-fired faux populism of Scott Brown who nearly succeeded in killing the still-misunderstood health care reform bill.
Patrick Whelan remembers the Senator in NCR.
Ted Kennedy's well-lived life | National Catholic Reporter

Wednesday, August 25, 2010

Neither Green nor Blue - Jerome Cohen's independent stance toward China and Taiwan

As someone who has developed an interest in China over the past ten years, beginning with a young scholar's interest in my writing on drug product liability law, I have tried to maintain a constructive but independent stance toward China.  I have not been pro-CP or anti-CP.  I have not been pro-unification nor anti-Taiwanese independence.  (In fact I haven't thought about Taiwan much at all.)

But I have thought a lot about China - mostly through dialog with Chinese friends, and my slow progress in studying the Chinese language - which interests me more than anything else about China.  For the past couple of years since I made his acquaintance, I have read Jerome Cohen's commentaries in the South China Morning Post, thanks to the U.S. Asia Law Institute at NYU which he directs with Prof. Frank Upham.  His latest essay `Neither Green Nor Blue' is an exemplar of his independent and constructive stance.

Neither Green Nor Blue
by  Jerome A.Cohen
This is the start of my third year publishing a biweekly column in the South China Morning Post and in Taiwan’s Chinese language China Times. Most of these “op-eds” have concerned contemporary issues of law and justice in China, Taiwan or both as well as political- legal questions arising from the cross-strait reconciliation that began in 2008 with Taiwan President Ma Ying-jeou’s inauguration.
All the problems I discuss are sensitive, whether they relate to criminal justice, the legal profession or good government. I try to play the role of a constructive critic, pointing out problems that require attention and suggesting possible improvements.
Regarding China, I am neither pro- nor anti-communist but seek improvements in the government that exists. Regarding Taiwan, I am neither “green” nor “blue” but am a supporter of the island’s remarkable democratic and institutional transformation of the past two decades, a momentous development in Chinese history.
When I started writing these columns, some Taiwan observers expected me to give all-out support to my friend and former student, President Ma. Others expected me to side with the Democratic Progressive Party (DPP) because of my friendship with another ex-student, former Vice President Annette Lu, and my opposition to the Kuomintang (KMT) repression in the island’s long authoritarian era. I am sure I have disappointed all such expectations, since I try not to allow either friendship or previous political history to influence my focus on issues of the greatest importance to me: open democratic governance, human rights and the rule of law.
I too have been disappointed — by those  in Taiwan who analyze issues of law and government in terms of their impact on one side or the other in the island’s overheated partisan politics, rather than on their merits. Paradoxically, in China, where no opposition political party is tolerated, criticism and suggestions for reform, at least superficially, have often focussed on the merits of the topic discussed rather than partisan implications. Of late, however, a rising nationalistic tide has led an increasing number of writers to substitute patriotic rhetoric for responsible analysis.
Against this background, I was not surprised to read a recent, long attack on my scholarly standpoint by a researcher on Taiwan affairs at Shanghai’s Institute of International Studies, Zhao Nianyu. Like nationalists in many countries including my own, he asks why foreigners who don’t agree with him don’t “mind their own business.”
Why would a foreign commentator suggest that the very important cross-strait Economic Cooperation Framework Agreement (ECFA) ought to receive article by article scrutiny before Taiwan’s legislature approves it? Why would he maintain that the corruption conviction of Taiwan’s ex-president Chen Shui-bian should be based on a trial that did not raise serious doubts about the actions of prosecution and court? Why would the commentator urge the Ministry of Justice to stop trying to discipline Chen’s dynamic defense lawyer? Why would the commentator call for an independent commission to investigate allegations that corruption prosecutions may have been “selective”? And why would he ask the Taiwan government to grant an entry visa to Rebiya Kadeer, a leader of the Uyghur independence movement living in exile in Washington, D.C.?
To Zhao, there is only one possible answer. After studying many of my essays, he concludes that I must be “Green”. He accuses me of appearing to be an objective observer who has Taiwan’s best interests at heart, but covertly advocating Taiwan independence and the fall of   President Ma’s KMT government.
Zhao pays little heed to the reasons I have voiced to support my recommendations. To him, strengthening parliamentary democracy and transparency, giving an indisputably fair trial to a former president, protecting vigorous criminal defense lawyers, restoring public trust through independent investigation of allegations about selective prosecutions, and maximizing freedom of information by admitting controversial visitors — all such policies are merely false screens designed to frustrate peace and reconciliation between Taiwan and China.
To be sure, Zhao has difficulty confronting inconvenient truths. He cannot find any statements by me in support of Taiwan independence or the DPP. Moreover, he has to recognize that, in the very article about ECFA that he censures, my colleague and I praised President Ma’s achievement in successfully negotiating more than a dozen important agreements with Beijing culminating in ECFA, despite the fact that the two sides have reached no common understanding of the “one China” policy.
Any objective reader would have to infer that we favor ECFA and the reconciliation process introduced by Ma. Yet, Zhao claims that even these paragraphs, if properly understood, are cleverly phrased in lawyer’s language that implicitly casts doubt upon the legality of Ma’s cross-strait accomplishments!
Zhao attributes my recommendations for various legal reforms in Taiwan, which he claims to be covert advocacy of Taiwan independence, to my failure to comprehend Chinese culture, especially China’s legal culture. Apparently his argument is that, if I did understand Chinese culture, I would not have suggested strengthening parliamentary democracy and government transparency, giving a fair trial to Chen Shui-bian, protecting criminal defense lawyers, establishing an independent commission to erase doubts about prosecutorial impartiality, or enhancing public access to relevant information. Although Zhao doubts whether I personally am capable of a deep understanding of Chinese culture, he holds out the hope that “any instigator” who lives in China and Taiwan for twenty years might become enlightened enough to appreciate the correctness of the “one China” policy.
I too share the Confucian belief  in the educability of man. Yet I hope it won’t take Zhao another twenty years to appreciate the intrinsic desirability of executive branch responsibility to an elected legislature, due process of law, vigorous criminal defense, independent investigative commissions and unrestricted information.Moreover, as C.V.Chen, a leading Taiwan lawyer and prominent KMT advisor recently emphasized: “the rule of law is the essential foundation of enduring stability and peace in the cross-strait relationship.” And he’s no “Green.”
Professor Jerome A. Cohen is co-director of NYU School of Law’s US-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations. See

Monday, August 23, 2010

China: Legislature mulls reduction of capital offenses

Wu Bangguo opens session of Standing Committee of National Peoples Congress

Indications are that the National Peoples congress will eliminate 13 capital offenses that rarely actually result in execution, such as smuggling relics and falsely making out specialized value-added-tax receipts. A major challenge will be whether official corruption remains a capital offense. According to recent reports there may be a dollar threshhold, like 10,000 RMB in bribes.

China Daily: China mulls to cut down executions

Friday, August 20, 2010

Paid by Big Firms, Young Lawyers Turn to Public Service -

I am proud to be part of the faculty at Fordham Law School whose Public Interest Resource Center received the 2008 ABA pro bono publico service award.
Paid by Big Firms, Young Lawyers Turn to Public Service -

Wisdom's Idiosyncrasies: Tips on judicial opinion writing

John Minor Wisdom was a masterly legal writer, hero of the civil rights movement as a 5th Circuit Court of Appeals judge,  and a bit of a curmudgeon of the old school (witness the opening line)

He offered to his law clerks “Wisdom's Idiosyncrasies”.  He offered it to the Yale Law Journal for publication shortly before his death in 1990.  109 Yale L.J. 1273


Some of which you learned in elementary school from Miss Thistlebottom before you had ever heard of Strunk.

* * *

Try to state the key question in the first sentence.

Give the court's holding in the first paragraph or, at least, in a short introductory section. Put the sex appeal in the

first sentence and last sentence of each opinion;

first paragraph and last paragraph of each opinion.

One idea to a sentence.

Present tense.

Active voice, not passive voice, as far as possible.

One word instead of two; two instead of three, five - so on.

Prefer the short word to a longer synonym.

Do not use "claims" when you mean "contends", "asserts", "argues", "alleges", "maintains", "represents", "declares", "states". The list can be expanded. You claim your umbrella. You submit a claim for $ 100.

No zeros after an even number; for example - $ 25.

No Latinisms, if possible; for example - prefer "later" to "subsequently", "before" to "prior to", "about" to "approximately" (I never use it except in referring to numbers). You cannot do a thing about habeas corpus, a suit in rem against a ship, and a few others.

No legalisms, e.g., "thereof", "therein", "herein", "said", "hereinafter", "pursuant". No legal or scientific jargon.

"Albeit" is stilted and obsolescent. Ditto "anent".

No comma when the day of the month is not given - June 1970.

Do not use possessive - apostrophe - with things, except personified things, e.g., ship's, state's.

No weasel words - "very", "quite", "rather", "somewhat".

"Only" belongs immediately before the word it modifies. That way you avoid such inanities as "He only killed her."

No supra, no infra. Even a judge should know that if no citation accompanies the title of a case, the case has been cited earlier in the opinion.

Do not use "implement" and "implementation" when "carry out" does just as well.

No "contacted". (I accept "contact" only as descriptive of a certain type of lens; well, football is a contact sport.) Avoid "to contact", or its variant forms. No "finalized", no "authored", unless you are prepared to say "paintered". Rephrase. Nouns are nouns; they are out of bounds when altered to verbs or adjectives.

In these circumstances - not under, unless "under the circumstances" is intended to imply conditions.

Usually - no split infinitive. But remember Churchill's admonition in regard to objections against ending a sentence with a preposition, "Up with this I shall not put"; that is, there are exceptions to every rule.

Jones's, not Jones'.

No elegant variation. Do not be afraid to repeat.

"Usually", not "normally", unless you are referring to someone who is recovering from a fever.

Comma before "and" in a series of three or more.

Avoid gerund - e.g., the court's submitting, etc.

Use lower case for the district court unless the district is mentioned; upper case for Court of Appeals.

 Courts "hold", "decide", "find", "conclude"; they do not "believe"; they do not "think", at least in opinions.

"In the light of" is a cast-iron idiom; "in light of" is unacceptable.

"Fitted" is the preferred past tense of "fit", not "fit".

Forget "deem" and "deemed".

"That" is a good and often necessary word, although it is unknown to authors of comments and notes in the law reviews.

"While" throws you off, when you mean "although".

Always use articles - the plaintiffs; well, almost always.

The adjective is the enemy of the noun; the adverb is the enemy of the verb. Think of the right word.

Avoid "which", an ugly word. Mark Twain, so the legend goes, rewrote Innocents Abroad without using the word "which". Also, remember "that" is restrictive and "which" is nonrestrictive. Usually, if you would use commas to set off a clause, use "which"; if not, use "that".

First, second, third; not firstly, secondly, thirdly...thirteenly... seventeenly.

"Proved", not "proven" - unless you are on a jury in Scotland coming in with a verdict, "Not Proven".

"Pleaded", not "pled".

Most of the time "because" is more apt than "since".

Forget "and which". For you it does not exist.

"Virtually", not "practically", unless you are distinguishing "practically" from "theoretically".

"Of" is unnecessary in "the question [of] whether". Sometimes "of" sounds better.

Different from, not different than. You should know that.

"The fact that": omit "the fact".

Underline Jones in Jones held, to distinguish the case from our old friend Jones.

Do not underline the title of the case when the citation is given; underline if one party's name is given, e.g., In Miranda the Court held...

When a word or phrase is quoted at the end of a sentence, I prefer the stop to be placed after the quotation marks because the quotation is part of the sentence. Of course a complete sentence that is a quotation should have the stop inside the quotation marks. I know that this practice is contrary to law review style and also the dogma of most grammarians. All of my law clerks ignore this punctuation. But punctuation should be logical.

Avoid vogue words. Current examples are "scenario", "parameters", and "interface"; there are many others.

Beware of metaphors. Try as you may, you will never achieve the bizarre mixture some judges achieve. Forget the dead and dying metaphors. An admiralty case does not call for a reference to the court's "steering its way through the muddy waters". If you use a metaphor, do not drag it through the opinion.

"To", not "in order to".

Do not begin a sentence with "However".

Avoid "get" - use "receive" or "obtain", or some other word.

Two hours a week, not two hours per week.

Avoid the law review style of string citations with the holding in parentheses. Avoid a sentence having one or more citations in the middle. I know that this will be difficult for a former editor of a law review, but such sentences are boring, and a citation with a holding in parentheses in the middle of the sentence breaks the thought.

Do not say "the district court failed" to consider, or anything like it. Treat district judges tenderly. Do not say "the court below" - say "district court" or "trial judge".

Write out "percent" - one word.

Spell numbers under 10.

Be careful with your quotations: Gold "glisters" not "glistens"; the lily is "painted", the gold is "gilded"; he was "hoist on his own petar", not "petard"; a "little learning", not a "little knowledge", is a dangerous thing; it is "blood, toil, tears, and sweat", not "blood, sweat, and tears".

Put that glass down when you feel that the purple passage you just wrote was deathless prose. Do not drag in "heuristic" or "indeterminate" in the Critical Legal Studies sense, or other gaudy words to show the breadth of your vocabulary.

Identical with, not to; compare with, except in "Shall I compare thee to a summer's day?"

Do not use the trial judge's name in the opinion unless the judge was Ed Weinfeld, Ed Gignoux, Frank Johnson, or Alvin Rubin.

Avoid dangling constructions such as "hopefully", "finding no error, the judgment is affirmed", "as reconstructed by the police, Jones at first denied any knowledge of the murder". The police must have done a great job of reconstructing Jones.

No puns, no witticisms at the expense of a litigant.

"At this point in time" is a tautological assault on the ear. Say "at this point" or "at this time". There is nothing wrong with the words "now" or "then".

Do not make the common mistake of using "masterful" when you mean "masterly". Julius Caesar was masterful, i.e., imperious, domineering. Cicero was masterly in debate, i.e., through his superior eloquence. This is one of the most frequent and egregious errors you find in the writings of persons who should know better.

Citations: Generally, use Blue Book style. For the last few years I have put citations in footnotes.

Common Mispronunciations by Lawyers and Law Clerks

New Awl-lee-uns, not Ner Orlins, as you hear it on TV, and not New Orleens.

Disparate, not disparate.

Applicable, not applicable.

Similarly, inexplicable, not inexplicable.

"Err" is "ur", not "air"; "erred" is not "aired".

Administrative, not administrative.

 Contrary to the way you have been pronouncing the word, and the way you hear lawyers pronounce it, "spouse" rhymes with "rouse", not "louse". Webster's Second and best edition agrees. Generally speaking, use any dictionary except Webster's Third.

Rationale - you will not believe the correct pronunciation unless you look it up in Webster's Second. Look it up.

* * * In short -

Be brief. Simple is better. Forget Addison, Macaulay, and English 101. There is little I can do about it, if you are congenitally long-winded. Do not, however, be so brief that you neglect to do a thorough job of research, including research of the law reviews. I like a good article, comment, or note in point - regardless of the source. Do not limit yourself to Harvard, Yale, Stanford, Chicago, and Michigan reviews.

I call these suggestions "Wisdom's Idiosyncrasies", because I do not want you to think that the law of the Medes and Persians is in effect in Room 200 of the John Minor Wisdom U.S. Court of Appeals Building. 

Monday, August 16, 2010

Gingrich: Muslim "triumphalism", slandering Obama, forgetting the past

When I lived in India forty years ago I often found myself reacting with habitual anger as I passed houses decorated with swastikas the way we use stars on festive occasions.  The swastika is an ancient Aryan symbol appropriated by European criminals - as the Islamic crescent and star is claimed by al-Qaida for its own "jihad".   Right-wing activists like  Human Events columnist Robert Spencer's blog Jihad Watch agree with al Qaida thus identifying all of Islam with the crimes of a few.   Newt Gingrich, the former House Speaker and history teacher, spoke in similar vein about the proposed mosque/Islamic Center in lower Manhattan and the President's admirable comments on religious freedom at the White House's traditional Ramadan dinner.  
According to news accounts of Gingrich's remarks:
"There is nothing surprising in the president's continued pandering to radical Islam," he said. "What he said last night is untrue and inaccurate. The fact is this is not about religious liberty."
Mr. Gingrich said the proposed mosque would be a symbol of Muslim "triumphalism" and that building the mosque near the site of the Sept. 11 attacks "would be like putting a Nazi sign next to the Holocaust Museum."
"It's profoundly and terribly wrong," he said.
Speaking of triumphalism - at the center of the seal of Fordham University, where I teach, are a cross and the letters IHS.   They are the first letters of the Latin maxim In Hoc Signo Vinces "in this sign you will conquer".  The vision of soldiers advancing behind the cross came to Constantine in a dream before the Battle of Milvian Bridge in 312 A.D.  Constantine triumphed in that civil war among rival Roman emperors.  Christianity became the official religion of the Roman Empire - thanks to the power of the sword.

Symbols are powerful in deed and in memory.  The crescent  and star, the star of David, and the Christian cross have each been wielded for deplorable  purposes.  A bit of humility is in order particularly for Christians.  We might reflect, for example,  on the expulsion of the Moors from Spain, or the Crusades. 

Thursday, August 12, 2010

Ex-Inmate’s Dilemma - $2.2 Million or a Lawsuit -

Michael A. Green - a free man now.

I once tried a murder case three times. Two hung juries, then an acquittal. The case hinged on two eyewitness identifications: the barmaid - who said my client Edgar Jimenez "looks like the guy" who stood watch at the door with a gun as a cohort emptied the cash register and a man drinking at the bar with the victim - his cousin who was probably too drunk to realize what was going on as he seemed to defy an order to "freeze".

Sometimes I disbelieved my client's alibi and his denials - to me and to the three juries. In the end I just didn't know. But two juries came within one vote of conviction. Mistaken identification is one of the dangers of the frailty of human perception and memory. Such an error cost Michael A. Green 27 years of his life.

Ex-Inmate’s Dilemma - $2.2 Million or a Lawsuit -

Tuesday, August 10, 2010

Free at last - 27 years on Oklahoma's death row

A tale of ineffective assistance of counsel.  James Fisher (above with a lawyer from equal justice initiative) was freed today after 27 years on death row.  He twice had the wrong lawyer.  Finally courts recognized the travesty.  The first was

"E. Melvin Porter, a civil rights advocate and the first African-American elected to the Oklahoma State Senate, later said that at the time he considered homosexuals to be “among the worst people in the world,” and Mr. Fisher to be a “very hostile client.”
Mr. Porter was shockingly ill-prepared for trial — “unwilling or unable to reveal evident holes in the state’s case,” a federal appellate court later noted, yet “remarkably successful in undermining his own client’s testimony.” He exhibited “actual doubt and hostility” about his client’s defense, the court said, and failed to present a closing argument, even though the state’s case “was hardly overwhelming.”
When the time came at sentencing to plead for mercy, the court said, Mr. Porter uttered just nine words. Four were judicial pleasantries; the remaining five formed a lame objection to the prosecution’s closing argument.
With that, James Fisher, 20, was sentenced to death."
The full story by Dan Barry: This Land - In Rearview Mirror, Oklahoma and a Life on Its Death Row -

Monday, August 9, 2010

China Daily: Monitoring judicial corruption

A coal mine owner bribed local judges to stay out of jail after a fatal accident at the mine. China Daily reports: Monitoring judiciary

Saturday, August 7, 2010

Iraq: Requiem for a Profound Misadventure - TIME

Joe Klein:

It is appropriate that Obama's speech to the DAV will not be remembered as vividly as George W. Bush's puerile march across the deck of an aircraft carrier, costumed as a combat aviator against a golden sunset, to announce — seven years and tens of thousands of lives prematurely — the "end of combat operations." Obama's announcement was no celebration. It was a somber acknowledgment that amends will be made to those whose lives were shattered and that their courageous service in an unnecessary cause will be honored
Iraq: Requiem for a Profound Misadventure - TIME

Tony Judt, Chronicler of History, Is Dead at 62 - Obituaries

 I had read his essays for many years in the New York Review. Of course I was sympathetic to his social democratic critique of the prevailing trends, and his anti-tribalism when discussing the Mid-East as we call it. But what really got my attention was his NY Review essay Night  (January 2010).  He described his nearly complete paralysis due to ALS (Lou Gehrig's Disease). Despite this travail he produced lucid, compelling prose, the moral weight of his views gaining urgency from the knowledge of the enormous effort required for the dying man to write, as he insisted on trying to make a difference to the last moment. 

Tuesday, August 3, 2010

James Fallows: Bloomberg & Mosque

Thanks to James Fallows for highlighting Mayor Michael Bloomberg's principled stand in the face of the nativist opportunists who find intolerable a mosque in downtown Manhatan.
This Is Not My Normal Beat (Bloomberg & Mosque Dept) ... - Politics - The Atlantic

The Mayor's statement as excerpted by Fallows:

"We may not always agree with every one of our neighbors. That's life and it's part of living in such a diverse and dense city. But we also recognize that part of being a New Yorker is living with your neighbors in mutual respect and tolerance. It was exactly that spirit of openness and acceptance that was attacked on 9/11.... Of all our precious freedoms, the most important may be the freedom to worship as we wish....

"The World Trade Center Site will forever hold a special place in our City, in our hearts. But we would be untrue to the best part of ourselves - and who we are as New Yorkers and Americans - if we said 'no' to a mosque in Lower Manhattan.

"Let us not forget that Muslims were among those murdered on 9/11 and that our Muslim neighbors grieved with us as New Yorkers and as Americans. We would betray our values - and play into our enemies' hands - if we were to treat Muslims differently than anyone else. In fact, to cave to popular sentiment would be to hand a victory to the terrorists - and we should not stand for that."

Rule Limiting Legal Services in Terror Cases Is Challenged -

In July the Treasury Department designated Anwar al-Awlaki as a terrorist, putting the fugitive on the government's hit list.

“The same government that is seeking to kill Anwar Al-Awlaki has prohibited attorneys from contesting the legality of the government’s decision to use lethal force against him,” says the complaint, which was jointly filed by the American Civil Liberties Union and the Center for Constitutional Rights.  The CCR summary and related documents are HERE.  The Times news account is Rule Limiting Legal Services in Terror Cases Is Challenged -