Thursday, March 31, 2011

The new Jim Crow: the `drug war''s impact on the black community

from the Guardian
by Michelle Alexander
The New Jim Crow
....A new racial undercaste has been created in an astonishingly short period of time – a new Jim Crow system. Millions of people of colour are now saddled with criminal records and legally denied the very rights that their parents and grandparents fought for and, in some cases, died for.
Affirmative action, though, has put a happy face on this racial reality. Seeing black people graduate from Harvard and Yale and become CEOs or corporate lawyers – not to mention president of the United States – causes us all to marvel at what a long way we've come.
Recent data shows, though, that much of black progress is a myth. In many respects, African Americans are doing no better than they were when Martin Luther King was assassinated and uprisings swept inner cities across America. Nearly a quarter of African Americans live below the poverty line today, approximately the same percentage as in 1968. The black child poverty rate is actually higher now than it was then. Unemployment rates in black communities rival those in developing countries. And that's with affirmative action.
When we pull back the curtain and take a look at what our "colourblind" society creates without affirmative action, we see a familiar social, political, and economic structure – the structure of racial caste. The entrance into this new caste system can be found at the prison gate.

Philippine government warns citizens after China executes two men, one woman for drug transportation

Despite appeals for mercy by the Philippine government at the highest levels to Chinese authorities in Fujian three Filipinos convicted of heroin transport in excess of 30 grams -Ramon Credo, Elizabeth Batain and Sally Villanueva- were all executed by lethal injection on March 30. Capital punishment is not used in the Philippines.

Wednesday, March 30, 2011

AALS criticizes ABA proposed law school accreditation standards

The AALS - the Association of American Law Schools - is the trade organization of America's accredited law schools.  It is dominated, of course, by the tenured faculty who have a vote in the law school governance scheme prescribed by the American Bar Association's Section on Legal Education.  Graduation from an ABA accredted law school is a prerequisite to admission to the bar in most states.  The ABA's Standards Review Committee has proposed changes that allow greater discretion to law schools in faculty governance schemes, and include a more elastic definition of what it means to be a full-time faculty member.

The AALS, in a strongly worded 10 page letter to the ABA, has criticized the  proposed revisions in the ABA committee reports on outcome measures, security of position, and transparency.  The law school leaders fear a de-emphasis on LSAT scores, a weakening of the power and security of tenured faculty, and a departure from the teach and research orientation of full-time faculty.  The ABA proposal, in the AALS view, leaves a lot of room for full-time faculty to be teachers but not scholars.

I don't have an informed position on all of this, but I have, of course, an orientation.  It is this:  LSAT score as a shortcut predictor of academic success is a strong measure; as a measure of success and skill as a lawyer it is a far weaker predictor.  Faculty tenure is important.  It protects freedom of inquiry.  And seniority generally serves skill; but the present upstairs-downstairs system devalues practical skills because clinical faculty generally work on five year contracts, unlike the tenure during good behaviour security of the "academic" full-time faculty - who generally have had only a glancing brush with the practice of law.  

Full-time work as a teacher is important.  I adhere to the 1 - 8 hours per week norm for non-law school work.  Much of that is public service as a member of the NJ Law Journal Editorial Board and the NJ Supreme Court's Advisory Committee on Professional Ethics.  The balance - consulting as an expert witness, occasional ghost-writing of briefs in my specialty, etc. is valuable as a link to the world of practice in which I was immersed for 30 years.  But more than that would impede substantially the job of staying tolerably current in the wide array of subjects I teach (though all are quite closely related - torts, products liability, remedies, professional responsibility).

As one who had to "make payroll" for 30 years I am sympathetic to management prerogatives, but recognize that employment security is key to career satisfaction, intellectual autonomy, and devotion to the central task of law school: teaching students to be good lawyers.

Tuesday, March 29, 2011

Supreme Court blocks 1983 claim despite prosecutorial misconduct

In Brady v. Maryland, the landmark 1963 U.S. Supreme Court case, prosecutors were ordered to turn over to the defense all exculpatory evidence.  It is a now firmly embedded proposition.  In Connick, District Attorney v. Thompson the Supreme Court yesterday ruled that John Thompson, a man convicted of murder  due to prosecutors suppression of exculpatory evidence cannot keep the jury award he won in a civil rights action against a prosecutor's office which blatantly failed to enforce the principles of the Brady case.

The District Court held that, to prove deliberate indifference, Thompson did not need to show a pattern of similar Brady  violations when he could demonstrate that the need for training was obvious.  The jury found the district attorney’s office liable for failure to train its staff and awarded Thompson damages.  The Fifth Circuit affirmed.  The Supreme Court, in a predictable 5-4 lineup, held that a district attorney’s office may not be held liable under 42 USC §1983 for failure to train its prosecutors based on a single Brady violation.  Only if the plaintiff can show a pattern can a state policy be demonstrated.  Isolated misconduct is not actionable.  Such evidence will rarely be available.

So a person aggrieved by a prosecutor's violation of the principle has as comfort only the prospect that the prosecutor will be disciplined for such a breach, an uncertain prospect as Bruce Green has observed.
Adam Liptak's summary in the Times is HERE

Sunday, March 27, 2011

Leonard Weinglass remembered - Newark and the Chicago 7

Leonard Weinglass and William Kunstler speak to the press during the Chicago 7 trial
In September 1970 I arrived in Newark at Rutgers Law School - to work on the Chicago 7 appeal.  Tom Hayden's lawyer Len Weinglass's office was opposite Ackerson Hall on Bleecker Street.  It was a little brick one-man shop.  But he had founded a law firm with recent grads that would be known as the Newark Law Commune.  A hyper egalitarian movement - the law communes pledged to share and share alike.  Even legal workers were to be paid the same and have a voice.  Egalitarianism required that the law firm's name be in alphabetical order.  At that moment it was Ball, Broege, Elberg, Fogel & Weinglass.   The personnel changed quickly but the core group bought a brick town house around the corner.  Len returned for a few years to the routine practice that had been his before fame overtook him via the Chicago 8, then 7 case.  

The overwhelmed trial judge Julius Hoffman had ordered Black Panther Party leader Bobby Seale bound and gagged in his chair in the courtroom before severing him from the rest of the motley crew of pacifists, anarchists, earnest activists, and militants who called themselves "The Conspiracy".  They had, the U.S. charged in its indictment , crossed state lines to incite a riot at the Democratic Convention in Chicago.  Prof. Arthur Kinoy had recruited a cadre of young activists - of which I was one - to come to Newark to work on the appeals.  Five of the seven had been convicted.  

All seven defendants and two lawyers- Weinglass and William Kunstler - had been  held in contempt of court for their vigorous advocacy. The contempt citations of Len, Bill, and the defendants were overturned - through the work of the brilliant Newark lawyer Morton Stavis, a founder of the Center for Constitutional Rights - which had just moved from Newark to an office above a paint store on 9th Avenue in the 40's .

The criminal convictions too were reversed.  A team of law students had helped Kinoy with the massive brief - two points of which I had drafted in my first semester of law school.  Not much of my attention went to coursework that term.  I was busy with the Chicago cases (my then wife Margo Anderson was paid staff), and preparing for my comprehensives for my masters' degree at BU where I had studied with Howard Zinn.
The Times obit tells the rest of the story HERE
And the Guardian, a few dates later, is HERE

Geraldine Ferraro remembered

Geraldine Ferraro has died.  One of Fordham Law School's most important alums.  I met her when she presided over the fractious meetings of the 1984 Democratic National Platform Committee - of which I was a member.  I saw her a few years ago when she was the auctioneer at Fordham's Student Sponsored Fellowship auction; and for the last time at Union Station on the day Barack Obama was inaugurated.
Video - the Last Word - is HERE
The Times obit is HERE.  The Guardian HERE

Saturday, March 26, 2011

Bob Herbert leaving the Times

Voices angry at the growing inequality in our society are few among"serious" people.  Raising taxes on millionaires is off the table.  A society that taxed such income at 90% in the Eisenhower years barely manages 35% today.  We are losing one at the Times:  Bob Herbert is leaving after 18 years as a columnist.  Here is his last column.  And below is a substantial excerpt.

This inequality, in which an enormous segment of the population struggles while the fortunate few ride the gravy train, is a world-class recipe for social unrest. Downward mobility is an ever-shortening fuse leading to profound consequences.
A stark example of the fundamental unfairness that is now so widespread was in The New York Times on Friday under the headline: “G.E.’s Strategies Let It Avoid Taxes Altogether.” Despite profits of $14.2 billion — $5.1 billion from its operations in the United States — General Electric did not have to pay any U.S. taxes last year.
As The Times’s David Kocieniewski reported, “Its extraordinary success is based on an aggressive strategy that mixes fierce lobbying for tax breaks and innovative accounting that enables it to concentrate its profits offshore.”
G.E. is the nation’s largest corporation. Its chief executive, Jeffrey Immelt, is the leader of President Obama’s Council on Jobs and Competitiveness. You can understand how ordinary workers might look at this cozy corporate-government arrangement and conclude that it is not fully committed to the best interests of working people.
Overwhelming imbalances in wealth and income inevitably result in enormous imbalances of political power. So the corporations and the very wealthy continue to do well. The employment crisis never gets addressed. The wars never end. And nation-building never gets a foothold here at home

Friday, March 25, 2011

Colleagues, do we need to order 20 million echocardiograms a year?

In Colleagues, do we need to order 20 million echocardiograms a year? Eric Topol, the Cleveland Clinic cardiologist discusses on his Topolog the fact that American Cardiologists order an average of 500 echocardiograms/per year.
Yet there are new "pocket echoes" but they have not been embraced - and they are cheap. Not as complete a picture - but useful for screening as to whether the more expensive test is needed. Given the crisis of health care spending, he asks:
Are cardiologists willing to take the initiative and take steps to limit the "runaway use of echocardiography"
Shouldn't cardiologist be part of the solution?

Professional Responsibility: Supreme Court grants cert in yet another prosecutorial misconduct case

Professional Responsibility: Supreme Court grants cert in yet another prosecutorial misconduct case

Thursday, March 24, 2011

ABA backs Right to Counsel for Civil Contempt in Child Support in Supreme Court filing

The American Bar Association has backed the right to counsel for someone facing jail time for contempt in a child support case.
ABA Brief Supports Right to Counsel for Civil Contempt Defendants Facing Possible Jail Time - News - ABA Journal
The case Turner v. Rogers was argued yesterday in the Supreme Court.  Michael Turner was $6,000 in arrears on his $60/week child support obligation when a South Carolina judge sentenced him to 12 months in jail for contempt of court in a civil contempt.  He could purge himself of the contempt by paying the $6,000.  Where he was supposed to get that money I don't know.  He was a drug user who had asked for a second chance.  This was his fourth time in the slammer for failure to pay child support.

Two law professors Benjamin Barton and Darryl Brown in an amicus brief urge reform of pro se representation - saying that extension of Gideon will raw resources from criminal defendants by putting greater burdens on public defenders, etc.

SCOTUS Blog previews the argument HERE.

The transcript of the argument is HERE

Tuesday, March 22, 2011

Obama in El Salvador visits grave of slain Archbishop Romero's El Salvador visit overshadowed by Libya events -

From the L.A. Times
Salvadorans rally in honor of Archbiship Romero - slain at the altar
President Barack Obama completed here (after much delay and out of view of the public) what could arguably have been the most dramatic gesture of his swing through Brazil, Chile and El Salvador: The U.S. leader Tuesday evening made a pilgrimage to the crypt of Salvadoran Archbishop Oscar Romero.

Revered in much of the region, the cleric was slain in 1980 by death squads working for the side in El Salvador's civil war that the U.S. government came to support against leftist guerrillas.

On the first visit by a U.S. president to Romero's tomb, Obama was accompanied by Salvadoran President Mauricio Funes, elected in 2009 as the candidate representing those guerrillas, now recast as a political party.

Housed in a rather austere lower chamber of the Metropolitan Cathedral, Romero's tomb is a frequent shrine of prayer and supplication for Salvadorans and other faithful from around the world.

Obama appeared solemn and lighted a candle alongside the tomb, as did Funes, who paused and crossed himself.

ThinkProgress » Judge Rules Chris Christie’s Education Cuts Violated State Constitution

ThinkProgress » Judge Rules Chris Christie’s Education Cuts Violated State Constitution

China Tightens Electronic Censorship -

Once upon a time it was common prattle to say that the PC was inherently decentralizing and democratizing. Because the system could not control the PERSONAL COMPUTER. Apple devotees were particularly prone to this disorder. Newt Gingrich had the bright idea that cities were obsolete. The suburbs could rule. Every child on welfare would be given a PC he proposed at one point. Never made any sense. Great power was plainly going to rest in the network. Now we have a new wave of silly talk about Facebook and twitter. The Chinese CP is demonstrating how much control the network can have.
China Tightens Electronic Censorship -

Monday, March 21, 2011

slow learner: law student gives the wrong answers at Bonds jury voir dire

One prospective juror got up Monday and said he would find it difficult to be fair and impartial while rendering a decision about a great athlete like Bonds.
“If you grow up in San Francisco, you’re a Giants fan,” said Scott Ito, a second-year student at the University of San Francisco School of Law. “I think Giants fans just want closure. Right now, I think what baseball and the Giants are doing is trying to turn their back on Barry Bonds a little bit because they don’t want the taint of whatever might happen. But at the end of the day, Barry Bonds was a Giant for a long time — whether he did steroids or not. He’s still going to be a Giant. We just want it to be over.”
The correct answer to "Can you be fair and impartial, accept the law as I give it to you, and decide the case without bias, passion, or prejudice?" is YES.

h/t William Rhoden, NY Times, March 21, 2011

deja vu all over again: war, earthquake, and famine - signs Jesus is coming back

Franklin Graham and Sarah Palin
at Graham's Samaritan's Purse relief op in Haiti

"God is not behind every storm"  Rev. Franklin Graham - son of evangelist Billy Graham says.  "I believe in the devil" who roiled the Sea of Galilee. He also thinks the earthquake and tsunami that hit Japan might mean that Jesus is returning to earth sooner rather than later.
Graham said that Jesus told his followers that increasing war, famine, and earthquakes were one of the signs of the second coming.  "Maybe this is, I don't know. But regardless, all of us need to be prepared to stand before almighty God," Graham said.
As he explained, an increase in natural disasters was just like how "as a woman gives birth to a child, those labor pains as they begin they start intensifying with more frequency."
The relief efforts that Graham' s Samaritan's Purse undertakes are admirable.  But I confess it astonishes me that there are people who actually take this apocalypse now stuff seriously.  - gwc
HERE is the link to the audio on Newsmax. h/t TPM

Just a Bad, Bad Idea | Talking Points Memo

by Josh Marshall

"So let's review: No clear national or even humanitarian interest for military intervention. Intervening well past the point where our intervention can have a decisive effect. And finally, intervening under circumstances in which the reviled autocrat seems to hold the strategic initiative against us. This all strikes me as a very bad footing to go in on."
Just a Bad, Bad Idea | Talking Points Memo

Marshall's view seems right to me.  How does this end?  With Qaddafi as our new Saddam Hussein, our new "why doesn't Obama finish the job?" tag line for Fox News?  Are we really ready for three wars in the Muslim world?

Saturday, March 19, 2011

Warren Christopher, 1925-2011 - James Fallows - National - The Atlantic

I was one of those for whom listening to Warren Christopher was like watching paint dry.  The always reliable James Fallows has this remembrance which describes him as a  "a good, modest, wryly humorous, public-spirited and public-minded man, who should be remembered...

Warren Christopher, 1925-2011 - James Fallows - National - The Atlantic

Arizona Business Leaders urge restraint on immigration

Arizona Senate President Russell Pearce (R) 

In a letter that pays lip service to anti-immigrant militancy in Arizona, a group of business-leaders asked the state's Legislature to put aside new anti-immigrant measures that were pending, saying

Arizona’s lawmakers and citizens are right to be concerned about illegal immigration.  But we must acknowledge that when Arizona goes it alone on this issue, unintended consequences inevitably occur.  Last year, boycotts were called against our state’s business community, adversely impacting our  already-struggling economy and costing us jobs. Arizona-based businesses saw contracts cancelled or  were turned away from bidding. Sales outside of the state declined. Even a business which merely had “Arizona” in its name felt the effects of the boycotts, compelling them to launch an educational  campaign about their company’s roots in Brooklyn. It is an undeniable fact that each of our companies and our employees were impacted by the boycotts and the coincident negative image. 
The full text is HERE

If you don't have a sense of the mood among Arizona's white conservatives, check out the website of Senate President Russell Pearce, architect of Arizona's get tough on immigrants legislation.
h/t ImmigrationProf blog.

Wednesday, March 16, 2011


Jerome Cohen reports on a "people's jury" experiment in Henan, China.
To what extent should ordinary people decide the guilt and punishment of alleged criminals? Is criminal justice too serious to be left to career judges? Trial by a jury of one’s peers is one of the most fundamental rights of citizens of the common law world, including Hong Kong. In the words of the United States Supreme Court, it is thought “necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority.”  Similar concerns have led continental European countries to establish a variety of institutions for allowing representatives of the community, although unschooled in law, to share decision-making responsibility for criminal cases with professional judges.....

All politics is tribal

Republican House leadership brought back styrofoam cups
Tip O'Neill famously said "all politics is local".  I think that all politics is tribal.  It's just that it's hard sometimes to identify the tribes.  One is the Democratic clan.  Another is the (post-Nixon southern-dominated) Republican clan.  Democrats believe in government (hopefully) and climate change.   Republicans don't (except for the need to police the Democrats and the...).  Sometimes events occur which make it all clear.  Like this:
Under the tutelage of RepresentativeNancy Pelosi during the years when Democrats ran the House, her party moved to “green” the Capitol with several initiatives, including obligating the food vendor for the three main House cafeterias to provide compostable cups and utensils. But the newly empowered House Republicans have ended the program, and thus plastic forks and Styrofoam cups have returned...
The Times account is HERE

Tuesday, March 15, 2011

Institute for Science and International Security › ISIS Reports › Japan › ISIS Statement on Events at Fukushima Daiichi Nuclear Site in Japan

Damage to plan 3/16/2011 click to enlarge

ISIS Statement on Events at Fukushima Daiichi Nuclear Site in Japan

March 15, 2011
ISIS assesses that the situation at the Fukushima Daiichi nuclear plant has worsened considerably. The explosion in the Unit 2 reactor, the third so far, and the fire in the spent fuel pond in the reactor building for Unit 41 means that this accident can no longer be viewed as a level 4 on the International Nuclear and Radiological Events (INES) scale that ranks events from 1 to 7. A level 4 incident involves only local radiological consequences. This event is now closer to a level 6, and it may unfortunately reach a level 7.

A level 6 event means that consequences are broader and countermeasures are needed to deal with the radioactive contamination. A level 7 event would constitute a larger release of radioactive material, and would require further extended countermeasures. The international community should increase assistance to Japan to both contain the emergency at the reactors and to address the wider contamination. We need to find a solution together.

1 “Japanese authorities also today informed the IAEA at 04:50 CET that the spent fuel storage pond at the Unit 4 reactor of the Fukushima Daiichi nuclear power plant is on fire and radioactivity is being released directly into the atmosphere.” 5:15 update:
Institute for Science and International Security › ISIS Reports › Japan › ISIS Statement on Events at Fukushima Daiichi Nuclear Site in Japan

Torts Today: Reactor design has long been questioned

As I suggested last night.  When you have a hammer everything looks like a nail.  And that looks like a defectively designed reactor under the Reasonable Alternative design test of the Products Liability Restatement, Section 2.  Turns out others made that observation 40 years ago.  Like I said the mistakes creating the accident are always simple.  It's the complications that ensue that are complex. - gwc

The warnings were stark and issued repeatedly as far back as 1972: If the cooling systems ever failed at a Mark 1 nuclear reactor, the primary containment vessel surrounding the reactor would probably burst as the fuel rods inside overheated. Dangerous radiation would spew into the environment.
Now, with one Mark 1 containment vessel damaged at the embattled Fukushima Daiichi nuclear plant and other vessels there under severe strain, the weaknesses of the design — developed in the 1960s by General Electric — could be contributing to the unfolding catastrophe.
HERE is the Times report

Disasters Fail to Follow Scripts - Room for Debate -

Accidents have simple origins. The shuttle's rubber O rings became brittle in the cold.  BP's cut-off valve had no back-up - unlike newer ones.  The Japanese reactors' cooling pumps were diesel engines - which the tsunami flooded when it overflowed the seawall.   What happens next is unpredictable. - gwc

by David Lochbaum of Union of Concerned Scientists
The Japanese reactors were designed to cope with power failure for eight hours. Most U.S. reactors can cope with outages for only four hours.
Disasters Fail to Follow Scripts - Room for Debate -

Friday, March 11, 2011

Keynesian economics: people still don't get it

Republicans complain that bad government policies lead business to put trillions (yes that much) of cash under the pillow, instead of investing it.  So, they say, we should cut spending so that business will spend.  Well somebody's got to spend it and Keynes demonstrated (and the New Deal and WWII proved) that money is money and if they won't spend it government should.  The United States Treasury is not your household budget.  But as the U.S. hovered in 1937 on the edge of a double dip depression, the public didn't get it.  And they still don't  h/t Paul Krugman

Thursday, March 10, 2011

2010 Work report of the National People's Congress

Wu Bangguo
The NPC Standing Committee - China's working legislature - has issued its work report for this year's session.  It was presented by the highest figure in the legislature - President Wu Bangguo:


-- The legislative goal set forth in 1997 at the Fifteenth National Congress of the CPC of forming a socialist system of laws with Chinese characteristics by 2010 was attained on schedule.

-- A socialist system of laws with Chinese characteristics has been formed which is based on the situation and realities in China; complies with the requirements for reform, opening up and socialist modernization; represents the will of the Party and the people; is rooted in the Constitution; has several types of laws including laws related to the Constitution, civil laws and commercial laws, as its backbone; and has different levels of legal force, reflected in laws, administrative regulations, and local statutes.

-- By the end of 2010, China had enacted 236 laws, over 690 administrative regulations and more than 8,600 local statutes that are now in force, and fully completed the work of reviewing current laws, administrative regulations and local statutes.

Scalia - in dissent, accomplishes little - Linda Greenhouse, NYTimes

"Antonin Scalia, approaching his 25th anniversary as a Supreme Court justice, has cast a long shadow but has accomplished surprisingly little." - Linda Greenhouse, Justice Scalia Objects

Times Supreme Court reporter emeritus (now housed at Yale) Linda Greenhouse considers the question asked a few days ago after Antonin Scalia in Michigan v. Bryant denounced the majority's opinion as "transparently false" and "utter nonsense".  Is Justice Scalia's vehement denunciation as of a recent majority opinion written by Justice Sotomayor evidence of a particular fury provoked by women who cross him....or just another example of his habitual hyperbole?   Greenhouse doesn't attempt to answer that question, but she does conclude that he has not been nearly so effective as his analytic and rhetorical powers might lead one to expect.

Update: Monroe Freedman today posted a comment on Legal Ethics Forum that demonstrates similar Scalian hyperbole:
Scalia recently criticized an Alito opinion as failing to “give a clue as to the rule of law it is applying,” and “mak[ing] no sense.” He further accused the opinion as “judicial incoherence” and “doctrinal obscurity” that “harms our image, if not our self-respect, because it makes no sense,” and said that the court should “abandon this Alfred Hitchock line of jurisprudence.” NASA v. Nelson.

Straight-talking Gov.Christie often doesn't have his facts straight - NY Times

Gov. Chris Christie (R-NJ)

It's not New Jersey Governor Chris Christie's Republicanism that bugs me: it's that he's not Tom Kean or Christine Whitman.    From his grandstanding  as a prosecutor to his YouTube hit  bullying a schoolteacher Chris Christie has thrived on confrontation.  Instead of patrician moderation we have suburban gut check and bluster.   Now the New York Times details his reign of error.  It's fact-check time.

ThinkProgress » WI Senate GOP Leader Admits On-Air That His Goal Is To Defund Labor Unions, Hurt Obama’s Reelection Chances

I am reminded of when Ronald Regan broke PATCO - the air traffic controllers union, then denounced the Polish Communists for barring strikes by the workers of the nationalized Gdansk shipyards
ThinkProgress » WI Senate GOP Leader Admits On-Air That His Goal Is To Defund Labor Unions, Hurt Obama’s Reelection Chances

Monday, March 7, 2011

The Revolution will not be searchable - By Henry Hoyle | The Call

Foreign Policy blog

By Henry Hoyle
The failed effort to spark protests in China last week reflects the unique circumstances of the Middle East's Jasmine Revolution and the very different political and economic circumstances in China. But one lesson Beijing's decision-makers did apparently learn was this: their deep suspicion of social media and the Internet was justified -- and perhaps even insufficient. Indeed, calls for coordinated demonstrations on Sina Weibo, China's fastest-growing microblogging service, were answered with pre-emptive deployments of paramilitary forces, unusually harsh treatment of dissidents, and tightened internet controls. With plenty of security forces and foreign journalists but no apparent protestors, the demonstrations were more like "performance art," an English-language Party tabloid aptly opined. One likely outcome of the Arab spring for China is that Beijing will likely become even more assertive on Internet policy, inching China closer to a walled-off web.
The Revolution will not be searchable - By Henry Hoyle | The Call

Degrees and Dollars - Krugman -

Krugman is right - computers eliminate both skilled and unskilled repetitive labor (like typing from dictation tapes - which required ability to spell correctly and type accurately). My capability was transformed by my first laptop. Newsletters and briefs that took days of typing now took hours of proofreading.  But the guys doing the pointing of the bricks on our apartment building don't need to speak English, or be good at math.  Theyare not going to be replaced by an iPad. What they need is a union and a health plan.
Degrees and Dollars - Paul Krugman NY Times

Sunday, March 6, 2011

Justice Scalia: Does he reserve his harshest rhetoric for his female colleagues?

In a post today on Legal Ethics Forum NYU legal ethicist Stephen Gillers asks if the intensity of Justice Antonin Scalia's recent rhetoric can be explained in part by hostility to women.  I tend to consider it just another example of the Tea Party bombast which is common to the the rhetoric of Justice Scalia and his frequent ally Clarence Thomas.  The language which Gillers cites is indeed extreme.  Speaking of Justice Sotomayor's opinion for the court in Michigan v. Bryant Justice Scalia wrote:
"Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeansthis institution.... In its vain attempt to make the incredible plausible’s opinion distorts our Confrontation Clause jurisprudence and leaves it in ashambles. Instead of clarifying the law, the Court makes itself the obfuscator of last resort....
Gillers' suggestion that female targets are more likely to feel Scalia's wrath is a good topic for an aspiring law review author.   I offer no opinion on the question.  But I recall that Michael Frost, in his essay Justice Scalia's Rhetoric of Dissent: A Greco-Roman Analysis of Scalia's Advocacy in the VMI Case,  91 Ky. L.J. 167 (2002), discusses the vehemence of Justice Scalia’s rhetoric in the VMI case in which Justice Ruth Ginsburg spoke for the Court.  There the majority compelled an end to VMI as an all-male institution. 
Antonin Scalia attended all-male Xavier High School in Manhattan - which was styled a military academy.  Boys attending that Jesuit school wore West Point-style tunics and hats.  It was a commuter school.  We, who met them on the field of athletic combat as fellow members of the Jesuit Athletic Conference, referred to them snidely as “subway commandos”.  Like Scalia, I highly regard my eight years of all-male Jesuit education.  But I feel none of the fury that Scalia unleashed over the end of public single-sex education.
Frost summarizes Scalia’s hot rhetoric in his essay, which finds the dissent ineffective due to its hyperbolic tone: 
"In the course of his dissent in United States v. Virginia, Justice Antonin Scalia criticizes the Court's opinion in language that makes his authorial voice the most distinctive on the U.S. Supreme Court. As he attacks the majority's decision to require, on equal protection grounds, the previously all-male Virginia Military Institute ("VMI") to admit qualified women, he accuses the majority of being "illiberal," "counter-majoritarian," and "self-righteous."  He asserts that the majority's equal protection jurisprudence is random, that the Court "load[s] the dice" or plays "Supreme Court peek-a-boo" with the standards of review it applies, that it engages in "politics-smuggled-into-law" and "do-it-yourself . . . factfinding," that it re-writes the U.S. Constitution with "custom-built 'tests,'"  and "ad-hocery," and that it employs "fanciful description[s]" of its own decisions."

Friday, March 4, 2011

Which schools land the big law firm jobs? ALM 250 report

Below are the short, unsurprising answers.
Basic picture: What are your approximate statistical chances as a law student of going to a top 250 firm - where the starting salary exceeds the mean salary for lawyers in the major metropolitan areas?
Harvard - 50%
NYU - 40%
Yale - 33%
Fordham - 25%
Cardozo - 12%

What America's Lawyers Earn - Magazine - ABA Journal

Mean earnings - 2009 - U.s. Bureau of Labor Statistics

What America's Lawyers Earn - Magazine - ABA Journal

Drug company R&D: Nowhere near $1 billion. - By Timothy Noah - Slate Magazine

I have pointed out in law review articles that there is actually no evidence for drug company claims about the cost of bringing new drugs to market. Now there is - and it is a fraction of what they claim.
Drug company R&D: Nowhere near $1 billion. - By Timothy Noah - Slate Magazine

Tuesday, March 1, 2011

Christie: I could win the W.H. - Maggie Haberman -

"I know I could win, that's not the issue", Chris Christie told the National Review. Oh, boy! 14 months as Governor and he's intoxicated by having gone viral on YouTube for bullying school teachers.
Christie: I could win the W.H. - Maggie Haberman -

Kenneth Feinberg: agent of BP

Thanks to the order of District Judge Carl Barbieri the Gulf Coast Claims Facility - operated by Kenneth Feinberg of Feinberg Rozen - now states squarely that they are "acting for and on behalf of BP".  Feinberg, backed by an opinion letter by ethics maven Stephen Gillers, had been describing himself as "independent".  The site now states
The Gulf Coast Claims Facility ("GCCF") is the official way for Individuals and Businesses to file claims for costs and damages incurred as a result of the oil discharges due to the Deepwater Horizon Incident on April 20, 2010 ("the Spill"). The GCCF is administered by Kenneth R. Feinberg ("the Claims Administrator"), who is responsible for all decisions relating to the administration and processing of claims submitted to the GCCF. Mr. Feinberg and the GCCF are acting for and on behalf of BP Exploration & Production Inc. in fulfilling BP’s statutory obligations as a “responsible party” under the Oil Pollution Act of 1990.
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