Friday, September 30, 2011

John Brennan Speech on Obama Administration Antiterrorism Policies and Practices/Opinio Juris

John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, spoke at Harvard law School on September 16, 2001, giving a broad descriptoin and defense of the Administration's policies. On the occasion of the news of the killing by drone strike of American-born al-Qaeda leader al-Awlaki, I thought it a good moment to take a look at the Brennan speech. The block quote excerpted below is just boilerplate. To see if you agree or disagree, click on the link below and read the whole speech. - GWC
Opinio Juris » Blog Archive » John Brennan Speech on Obama Administration Antiterrorism Policies and Practices:
First, our highest priority is – and always will be – the safety and security of the American people. As President Obama has said, we have no greater responsibility as a government.
Second, we will use every lawful tool and authority at our disposal.
Third, we are pragmatic, not rigid or ideological – making decisions not based on preconceived notions about which action seems “stronger,” but based on what will actually enhance the security of this country and the safety of the American people.
We address each threat and each circumstance in a way that best serves our national security interests, which includes building partnerships with countries around the world.
Fourth—and the principle that guides all our actions, foreign and domestic—we will uphold the core values that define us as Americans, and that includes adhering to the rule of law.
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NJ State Bar Critical of ABA Report

NJ Paper: Christie ‘Seriously Rethinking’ And May Make Presidential Run | Election 2012

Chris Christie is a thin-skinned hothead, I can say from personal experience. But he is also smart and savvy and cocky. It must be very difficult to keep your wits about you when everyone around you is fawning and flattering. Hard to remind yourself that you are just a half-term governor and former prosecutor with a quick-lip and a bullying streak and maybe you need a good deal more seasoning.

So you count on your wife to talk sense into you. Then Barbara Bush and Nancy Reagan call her...and now she begins to allow herself to entertain thoughts of life on Pennsylvania Avenue, and the arcade fire begins to build...
NJ Paper: Christie ‘Seriously Rethinking’ And May Make Presidential Run | Election 2012: " the Star-Ledger’s anonymous source, described as “close to the governor,” says the aggressive “Draft Christie” effort finally seems to be paying off.

“An adviser close to the governor” cites Christie’s wife, Mary Pat, as having previously been a major dampener on any White House ambitions Christie may have harbored. However, the source says Mrs. Christie’s objections to raising a family in the White House diminished after a call from former first lady Barbara Bush. A discussion with Nancy Reagan is also said to have helped change her mind."

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Thursday, September 29, 2011

Judis: Why The U.S. Should Support Palestinian Statehood At The U.N. | The New Republic

President Obama's speech to the U.N. is a case of electorally induced myopia.  With Ed Koch and Florida's elderly Jewish voters looking over his shoulder he forgot about why he got the Nobel Prize: the hope that he would act boldly for peace.  John Judis explains - in the New Republic. - GWC
Judis: Why The U.S. Should Support Palestinian Statehood At The U.N. | The New Republic: "The Obama administration, after failing to head off a Palestinian request to the Security Council for United Nations membership, is prepared to use its veto against it. In an undistinguished address to the General Assembly on Wednesday, President Barack Obama advised the Palestinians to bypass the UN and to confine their campaign for statehood to negotiations with Israel. Obama’s position would have made sense if the Israeli government of Benjamin Netanyahu had made generous offers at the negotiating table that the Palestinians have been spurning, but the Netanyahu government has not; and there is little likelihood, in the absence of a dramatic change of heart, that it will do so. By threatening a veto, Obama appeared to contradict his past support for Palestinian self-determination."

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Tuesday, September 27, 2011

Key health case moves on faster track : SCOTUSblog

ScotusBlog - the indispensable source on the Supreme Court - has stabilized and improved its situation. Its exclusive sponsor is now Bloomberg Law. - GWC
Key health case moves on faster track : SCOTUSblog:
by Lyle Denniston
"The Obama Administration, opting not to try to slow down the pace of a major case on the constitutionality of the new health care law, passed up a chance Monday to get the Eleventh Circuit Court to reconsider its decision August 12 nullifying the law’s most crucial provision. That was the word being passed out quietly by the Justice Department on Monday afternoon, sources in Washington said. Since states involved in that case are also not expected to press for added review in the Circuit Court, the Administration’s decision enhances the possibility that the case could reach the Supreme Court in time for a ruling during the current Term — just months before a presidential and congressional election."

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Monday, September 26, 2011

Professional Responsibility: Oregon finds that convicted defendant can bring malpractice claim against lawyers for mishandling post conviction appeal

Prof. Alberto Bernabe reports:
Professional Responsibility: Oregon finds that convicted defendant can bring malpractice claim against lawyers for mishandling post conviction appeal: "the Oregon Supreme Court recently ruled, however, that a convicted criminal defense client need not obtain exoneration of the underlying offense before suing his or her lawyers. The case is called Drollinger v. Mallon, and it is available HERE. The case is slightly different because the plaintiff's allegation was that the lawyer was negligent in handling a post-conviction appeal. The court found that exoneration is not required in the post-conviction malpractice setting because the policies underlying the exoneration requirement in an action involving alleged trial malpractice do not apply to an action in which a client's failure to obtain post-conviction relief is the heart of the case."

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NY Court of Appeals: Port Authority Immune in 1993 World Trade Center Bombing Cases

Before the 1993 World Trade Center bombing the Port Authority - owner of the World Trade Center - dispatched a team led by director Peter Goldmark to London to discuss security issues.  The PA had been the object of many threats and London had confronted actual bombings by the IRA and others.  “Scotland Yard was appalled” that the WTC parking deck was completely unattended.  That became a key piece of evidence in the trial of claims brought by businesses and persons harmed by the truck bomb.  A huge verdict was entered.
On September 22, 2011 in I/M/O World Trade Center Bombing the  New York Court of Appeals by 4-3 vote declared the Port Authority to be immune from suit, embracing the PA’s defense that “that by assessing security risks, allocating police resources, and implementing safeguards at the WTC in the face of numerous possible threats, it engaged in conduct akin to a governmental, rather than a proprietary, function.”

The Court relied on the well established rule “ that the functions of a governmental entity can be viewed along a "continuum of responsibility" ranging from the most basic proprietary obligation, like that of a private landlord, to the most complex governmental function, such as the provision of police protection.” Although Section 7101 of the law establishing the bi-state agency waives tort immunity for the PA when it acts as a landlord, Section 7106  preserves immunity for its functions as a governmental agency, making discretionary policy choices.

The court could easily have ruled that arbitrary choices or palpably unreasonable choices do not merit immunity.  But the court majority declared:
Given the finite nature of police resources, the mechanisms by which security and police protection is afforded cannot be dictated by the edict of a court or the retrospective conclusions of a jury.  Police protection is best left in the hands of those most expert and qualified to render informed, deliberate decisions on implementing the most reasonable safeguards. 

Judge Carmen Ciparick dissented.  Joined by Judges Graffeo and Prudenti she pointed to the obvious: that the WTC was a huge commercial complex and the routine nature of  “the precise failures for which the jury found the Port Authority liable.  These are relatively common, site-specific measures, such as the failure to install barriers to the garage entrance, to provide a manned ticket booth, to install adequate electronic surveillance devices, or to restrict garage access to tenants only.”

Chief Judge Lippman and Judge Smith did not participate, so two judges of the Appellate Division were temporarily assigned.  Their votes provided the majority for Judge Jones opinion.

Sunday, September 25, 2011

NJ Law Journal: Admission by Motion urged

One of the peculiarities of New Jersey practice is that New York used to allow admission on motion by out of state lawyers.  But about 20 years ago New York limited the privilege  to lawyers from states which offered reciprocity.  New Jersey has refused the offer.  A flood of New York lawyers ignorant and disrespectful of local practice norms has been the dominant justification.  Of course there is no evidence of abuse by  those admitted without exam before the rule change.  Now the New Jersey Law Journal Editorial Board has called for the issue to be reopened. - GWC
New Jersey Law Journal
Editorial, September 23, 2011
copyright American Lawyer Media

Cross-border practice among adjoining states is already a reality, with 70 percent of New Jersey lawyers admitted in another jurisdiction: 43 percent in New York and 23 percent in Pennsylvania. Decisions like that in Schoenfeld v. State of New York will only enhance the trend, as did our Supreme Court's amendment of R. 1:21-1 (a) to maintain our bona fide office requirement but allow it to be in another state.

As the trend toward multijurisdictional practice continues, it makes sense to consider whether passage of the New Jersey bar examination should continue to be a requirement for admission to practice in this state. Should good standing in another state, some years of experience, a willingness to meet CLE requirements and adherence to the Rules of Professional Conduct — which compel competence and diligence — satisfy New Jersey's legitimate interest in affording competent legal assistance to the its citizens?

Eight years ago, the Ad Hoc Committee on Bar Admissions, chaired by Judge John Wallace Jr., urged that we follow a trend to permit admission by motion established by 25 states and the District of Columbia — a move that would "enrich the practice of law in this state ... by increasing the available pool of knowledgeable attorneys." The Wallace Committee noted that the U.S. Supreme Court has increasingly looked askance at residential restrictions on the practice of law and that "a client has a right to be represented at all times by counsel of his own choosing." The committee urged measures to assure the competence of such entrants to our bar.

Since then, the trend toward admission by motion has continued. According to a recent report by the American Bar Association Commission on Ethics, 40 jurisdictions now permit admission by motion. New Jersey, California and Florida are prominent holdouts. The ABA Commission has urged the prerequisite time for admission on motion be reduced so that one need only "have been primarily engaged in the active practice of law in one or more states, territories or the District of Columbia" for three rather than five of seven "years immediately preceding the date upon which the application is filed."

New Jersey's ban on admission by motion may not be able to withstand the test of time. The ABA Commission report presents substantial evidence that demonstrates that the practice of admission by motion has not resulted in harm to the profession or to the administration of justice and service to clients:
"[M]ore than 65,000 lawyers have used the procedure in the last ten years. The Commission also found that there is no evidence that lawyers admitted by motion are more likely to be subject to discipline, disciplinary complaints, or malpractice suits than lawyers admitted through more traditional procedures. The Commission sought information in this regard from lawyer disciplinary counsel, and responses revealed that the admission by motion process has produced no discernible risks to clients or the public. It also has enabled lawyers to relocate with greater ease and given clients more freedom to select their lawyers."

Given the substantial experience gained by other states in the past decade, we urge our Supreme Court to study that experience and to ask whether the time has not come for admission by motion in New Jersey.

China's police sorry over case of sex slaves - People's Daily Online

At least they apologize. -GWC
China's police sorry over case of sex slaves - People's Daily Online:
"ZHENGZHOU - Police in Luoyang, Henan province, have apologized over a case in which six women are alleged to have been held as sex slaves. Two of them were murdered.

Guo Congbin, director of the public security bureau of Luoyang, told a news conference that four district police officials had been suspended for negligence.

An application to charge the suspect, Li Hao, 30, a former firefighter who worked later in the local technological supervision bureau, is before the public prosecutor.

Police allege Li spent more than a year building a dungeon under a basement he had bought in an apartment building before kidnapping the six women, aged 16 to 24, at different times and forcing them to perform erotic shows on the Internet. "

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Friday, September 23, 2011

James Fallows: Perry will fade, Romney will get the nod

As I commented after the first Republican presidential debate. "Social Security is a Ponzi scheme" will sink Rick Perry. He has not missed a single chance to dig a deeper hole for himself. Mitt Romney will be the Republican nominee: and he will be formidable. Especially if he picks Jon Huntsman or Mitch Daniels. - GWC
James Fallows - Authors - The Atlantic: "By the way: No one is in love with Mitt Romney, but he is moving smoothly toward being the nominee. And Rick Perry gave another reminder why he is a version of Michele Bachmann -- more executive experience, yes, but equally unready for big-time scrutiny. If anybody wants to bet on a President Rick Perry being sworn in on January 20, 2013, I'll take the action on the other side."

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US soldier jailed for seven years for "thrill killing" of Afghan boy 15lians | World news |

Lt. Col. Kwasi Hawks, who sentenced the soldier, said "I hope you have a happy, productive life". Apparently wasting Afghan lives isn't such a serious thing that it should cost you your future. There are many people serving much longer sentences for selling marijuana in New York. - GWC
US soldier jailed for seven years over murders of Afghan civilians | World news | "Pvt 1st Class Andrew Holmes, 21, was among five soldiers charged over the "thrill killings" of the three civilians during patrols in Kandahar. The murders have been described as among the most serious war crimes charges to emerge from the Afghanistan war.

Holmes, from Boise, Idaho, confessed in court to firing a heavy machine gun at a boy from 15 feet away, after his co-defendant threw a grenade at him.

He was accused of directly participating in the first killing and initially charged with premeditated murder among other charges.

But in a deal with prosecutors, Holmes pleaded guilty to murder by an inherently dangerous act, as well as possessing a finger bone from his victim and smoking hashish."

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Thursday, September 22, 2011

Massachusetts leads in health coverage, Texas dead last

One can still hope that oneof these days Mitt Romney will wake up and say what he knows to be the truth:  `Romneycare', like `Obamacare', is a good thing because it provides people with health insurance which makes them healthy.  Being healthy is cheaper than being sick.  Healthy people are more productive than sick people. Thanks to ThinkProgress for the graph

Wednesday, September 21, 2011

Law Firm Risk Management Blog: Outside Ownership of Law Firms? IBM General Counsel Weighs In -

Law Firm Risk Management Blog: Outside Ownership of Law Firms? IBM General Counsel Weighs In -: "While the UK moves forward implementing “alternative business structures,” that will allow outside ownership of law firms, Robert Webber, SVP for legal and regulatory affairs and general counsel at IBM argues against the US following suit in an interesting piece published in Businessweek. "Law Firms Should Spurn Outside Investments." He doesn't pull any punches:
"Imagine discovering that the law firm you hired to defend your company... is partly owned by private investors... [who] have financial stakes in the company that is suing you — and perhaps even stakes in the law firm representing your adversary.""

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President’s Budget Plan Would, Indeed, Stabilize the Debt/ Center on Budget & Policy Priorities

President’s Budget Plan Would, Indeed, Stabilize the Debt:

"Every major budget commission of recent years has concluded that arresting the rise in the debt as a share of the economy, and then keeping it stable, is the core fiscal policy goal for the decade ahead. The Office of Management and Budget (OMB) estimates that under the President’s plan, debt would hit 76.9 percent of GDP in 2013 but then decline to 73 percent of GDP in 2021. In the second half of the decade — 2017 through 2021 — the debt-to-GDP ratio would be stable, declining slightly from 74.8 percent of GDP to 74.2 percent, 73.8 percent, 73.4 percent, and 73.0 percent."
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Elizabeth Warren: straight talk on class warfare and the deficit

Ehud Olmert: Peace Now, or Never -

Peace Now, or Never -
by Ehud Olmert (Prime Minister of Israel 2006 - 2009)
"AS the United Nations General Assembly opens this year, I feel uneasy. An unnecessary diplomatic clash between Israel and the Palestinians is taking shape in New York, and it will be harmful to Israel and to the future of the Middle East.

I know that things could and should have been different.

I truly believe that a two-state solution is the only way to ensure a more stable Middle East and to grant Israel the security and well-being it desires. As tensions grow, I cannot but feel that we in the region are on the verge of missing an opportunity — one that we cannot afford to miss."

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Before the Davis Execution Takes Place - James Fallows - National - The Atlantic

Before the Davis Execution Takes Place - James Fallows - National - The Atlantic: ") Please read Andrew Cohen's masterful explanation of the philosophies, practicalities, and politics of modern capital punishment. It is long but truly important, and among other things it clarifies why use of the death penalty nationwide has been declining, even as it has been on the rise in the South. (Since 1976, there have been four times as many executions in the South as in the rest of the country combined. Texas alone has accounted for nearly 40% of all U.S. executions in that period; together with Virginia, it accounts for almost half. Texas executed 17 last year; California, with more people and more crimes, has executed a total of 13 since 1976.)

One crucial part of Cohen's argument is that the kind of willful over-reach we see from the Georgia authorities in the Troy Davis case will eventually turn the national tide against the death penalty as a whole. He argues that the 1976 Supreme Court ruling making the death penalty permissible again was based on the faith that it would be carried out with utmost sober-minded care, even reluctance, and that operationally its workings would seem to be "fair." "

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Gimme a Break | Palestinian state unobjectionable/ Josh Marshall Talking Points Memo

Talking Points Memo founder/editor Josh Marshall takes the standard Jewish progressive position: he believes in Israel, considers himself a Zionist, and supports the two state solution on the approximate lines of the 1967 border.
Gimme a Break | Talking Points Memo:

"Everyone is now in a flutter about this monumental non-crisis about whether or not the Palestinians, or particularly the Palestinian Authority, will go to the UN and ask the UN to call them a state. But it's not clear to me on what basis the Palestinians can be asked not to do this. The Palestinians want a state. The vast swathe of political and international opinion says they should have one, though the devil is very much in the details. So why can't they try to get one? Frankly, it's never been really clear to me why the Palestinians haven't already declared one, though arguably they did a long time ago."

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Ron Paul: dead, uninsured staffer didn't need government help

Rep. Ron Paul, sticking to his guns, told TPM that government should stay out of health care:
Ron Paul told TPM on Wednesday that even if there’s a “case or two” that makes Americans uncomfortable, the government should stay out of the health care business. Even if one of the cases in question is his former campaign manager, Kent Snyder, who died with $400,000 in unpaid medical bills after being unable to secure health insurance due to a pre-existing condition. 
The staffer's friends and family took up a collection, which yielded $38,000 dollars.  I guess doctors are and hospitals are supposed to randomly absorb these losses rather than violate liberarian principles by having mandatory comprehensive health insurance.

Doom! Our Economic Nightmare Is Just Beginning | The New Republic

The leaders of Europe and the Republican Party have their heads in the sand. Instead of looking down they should be looking back: at how austerity policies accelerated the Great Depression - policies like "cut, cap, and balance" that are doing a lot to drive us into deeper depression. - GWC
Doom! Our Economic Nightmare Is Just Beginning | The New Republic:
by John Judis
"During the next year of campaigning, we are going to hear lots of uplifting slogans about America’s can-do spirit and the bright prospects for our national future. That is the way politicians talk, and there is nothing wrong with that. But such optimistic rhetoric should not fool anyone about the underlying reality: Unless there is a fundamental—and difficult-to-imagine—change in the way our politics interacts with our economy, the United States and much of the world are headed for a very grim future."

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Tuesday, September 20, 2011

Should Justice Thomas recuse on the health care act?

Legal Ethics Forum: Letter to the New Yorker:
by Prof. Monroe Freedman, Hofstra Law School
"In Justice Thomas’ case, his wife, Ginny, is a lobbyist for organizations that oppose the health care act, and his family’s income derives in significant part from those lobbying activities. Thomas' wife has a unique opportunity for improper ex parte contacts with the justice. In addition, her success as a lobbyist encourages contributions to her organizations and enhances the justice’s family income. Not only might a reasonable person question the justice’s impartiality, therefore, but a number of reasonable people have in fact done so."

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The Ayn Rand Institute: Introducing Objectivism

Rand Paul and pere Ron, and Rep. Paul Ryan among many others in the ascendant right wing of the Republican Party lionize Ayn Rand. Here's a short course by herself.
The Ayn Rand Institute: Introducing Objectivism:
"by Ayn Rand
At a sales conference at Random House, preceding the publication of Atlas Shrugged, one of the book salesmen asked me whether I could present the essence of my philosophy while standing on one foot. I did as follows:

1.Metaphysics - Objective Reality
2. Epistemology - Reason
3. Ethics - Self-interest
4. Politics - Laissez faire Capitalism"

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Why Does The Buffet Rule Give David Brooks Indigestion? | The New Republic

More evidence for the proposition that a west coast liberal blogger has an easy time of because all he has to do is wait until 9 PM eastern time to comment on David Brooks's latest foolishness. - GWC
Why Does The Buffet Rule Give David Brooks Indigestion? | The New Republic:
by Timothy Noah
"David Brooks has indigestion because President Barack Obama, whom Brooks rather likes, wants to raise taxes on the rich. "He repeated the old half-truth about millionaires not paying as much in taxes as their secretaries." Why is that a half-truth? Because "the top 10 percent of earners pay nearly 70 percent of all income taxes, according to the I.R.S."

Oh, please. The top 10 percent pays nearly 70 percent of all income taxes because the top 10 percent makes half the income--49.74 percent, including capital gains, before the recession and only slightly less now. "

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Monday, September 19, 2011

Law Grads - the chances of getting a job / Brian Tamanaha/Balkinization

"For the class of 2009 (nine months after graduation), at 30 law schools, only 50 percent or fewer of the graduates obtained jobs as lawyers. At nearly 90 law schools, one-third or more of graduates did not land jobs as lawyers nine months after graduation. 2009 was not a good year for legal employment, but 2010 was even worse (numbers are still unavailable), and 2011 will not be much better. Many of these schools, I should add, had poor success rates even before the current legal recession".
Balkinization"The chart below plots the percentage of the 2009 class that obtained lawyer jobs against law school by rank (fourth tier schools have no rank, so are indicated after the line in alphabetical order). As one would expect, the top schools tend to have the highest rates of graduates who obtain jobs as lawyers (in the 90 percentile range). What this suggests is that law graduates who can get jobs as lawyers gratefully take them."

Thursday, September 15, 2011

Obama Plants His Flag On Boehner’s Bridge | Election 2012

Starting to get his bearings again: Obama will go to the Boehner to McConnell bridge - the crumbling Cincinnati span from Speaker John Boehner's hometown to Minority Leader Mitch McConnell's Kentucky.
Obama Plants His Flag On Boehner’s Bridge | Election 2012: "President Obama is taking his message about the need to fix the country’s aging infrastructure and create jobs about as close as you can get to Speaker John Boehner’s (R-OH) district next Thursday. And he’ll have a pretty powerful visual behind him: Cincinnati’s crumbling Brent Spence Bridge.

The bridge spans Cincinnati and northern Kentucky. Obama plans to use the backdrop of the bridge to drive home the point that Congress should pass the American jobs Act in order to secure much-needed investments in infrastructure projects across the country and put more Americans back to work, White House spokesman Jay Carney told reporters Thursday."

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Does Congress have the power to govern the Supreme Court?

Controversy continues regarding the Supreme Court's failure to embrace for itself the Code of Conduct that binds lower court judges.  A group of Democratic Members of Congress has called for hearings on HR 862 the Supreme Court Transparency and Disclosure Act.  120 law professors have called on Congress to advance legislation imposing the Code on the Supreme Court. (I am a signator.)  But the Republican majority in the house will not move on the bill because the controversy is most heated regarding justices Scalia and Thomas whose conservative zeal inspires much of the fire.

The New Jersey Law Journal Editorial Board in a September 8, 2011  editorial took a cautious approach, urging the court to declare itself bound by the Code:

The Constitution structures the judiciary such that there is only one Supreme Court, and it makes its own rules and possesses the last word. For that reason, the Court should not be governed by legislation. Rather, as Justice Harlan Fiske Stone once observed, the only real check on an individual justice's exercise of power is his or her own sense of self-restraint. It is thus up to the Court to govern itself.
We would urge the Court to officially and publicly affirm its adherence to the code –– something that Justices Breyer and Anthony Kennedy have each already acknowledged in comments made at a recent congressional hearing –– and the justices should redouble their efforts to avoid engaging in activities that even appear partisan. The long-term legitimacy and esteem of the Court depends on it.

A recent paper by Stetson University professor Louis J. Virelli argues  that separation of powers requires the Unconstitutionality of Supreme Court Recusal Standards.  He is certainly correct that the Congress has long been deferential when it comes to the Supreme Court.  But the recusal statute expressly extends to the Supreme Court. According to  28USC 455 
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
Congressional authority is plain enough.  The federal constitution,  Article III § 1  declares “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

Congress certainly can define what constitutes good behaviour.  But things get complicated when enforcement mechanisms are contemplated.  Who would judge and in what forum?  And how would it be enforced - short of impeachment.  The Law Journal board's call for the Court to heal itself is therefore a sound one.

A Close Look at the New Census Numbers

Sargent Shriver - Maria's father, husband of John F. Kennedy's sister Eunice, was the first leader of the Office of Economic Opportunity - the federal government's War on Poverty'. He also directed the Peace Corps - which I joined. That is enough to explain the utter disconnect I feel about today's Republican Party whose activists cheer when their entire lineup of presidential candidates declares we need less government, not compassionate government. - GWC
Off the Charts Blog | Center on Budget and Policy Priorities | Blog Archive | A Close Look at the New Census Numbers: "Driven by the persistent weakness in the economy, the poverty rate in 2010 reached its second-highest point since 1965, median income declined, and the number and percentage of Americans without health insurance stood at record highs, the Census Bureau said yesterday. The share of Americans in “deep poverty” — with incomes below half of the poverty line — also hit the highest level on record, with data going back to 1975.

Contributing to the high percentage of Americans who have no health insurance was the decline in the percentage of Americans with employer-provided health coverage. The new data also highlight the importance of implementing health care reform, slated to take full effect in 2014."

'via Blog this'

Wednesday, September 14, 2011

Pediatricians renounce Bachmann anti-vaccine claim

American Academy of PediatricsI am not The Daily Show or Talking Points Memo.  I don't make make my living on satire so I don't bother with Michelle Bachmann who denounced vaccinating "innocent 12 year old girls" against cervical cancer.  Her claim that HPV (Human Papilloma Virus) vaccine causes mental retardation could do real harm through the media echo chamber.  So I note here that the principal organization of children's doctors the American Academy of Pediatrics has firmly renounced the candidate's reckless allegation and affirmed the vaccine's value in preventing cervical cancer.  - GWC
“The American Academy of Pediatrics would like to correct false statements made in the Republican presidential campaign that HPV vaccine is dangerous and can cause mental retardation. There is absolutely no scientific validity to this statement. Since the vaccine has been introduced, more than 35 million doses have been administered, and it has an excellent safety record.“The American Academy of Pediatrics, the Centers for Disease Control and Prevention, and the American Academy of Family Physicians all recommend that girls receive HPV vaccine around age 11 or 12. That’s because this is the age at which the vaccine produces the best immune response in the body, and because it’s important to protect girls well before the onset of sexual activity. In the U.S., about 6 million people, including teens, become infected with HPV each year, and 4,000 women die from cervical cancer. This is a life-saving vaccine that can protect girls from cervical cancer.”

Decline of employer-based health insurance

This is why we need the Affordable Care Act - disparaged as `Obama Care'.  The Republican debate leaves you feeling tyrannized "they are going to make me buy insurance".  The real problem is people can't afford insurance. Leading the charge are employers who say they can't afford to insure employees.  Nor can the employed!   Once we bar denying insurance due to pre-existing conditions you have to find the revenue to enable the insurers to pay for the influx of sicker people!  There are two solutions: subsidies for the low income, and mandatory purchase for others. The much-slammed individual mandate is a penalty for failure to buy insurance - a way to solve the free-rider problem. - GWC 
h/t Krugman/NY Times

Tuesday, September 13, 2011

Government Programs Kept Millions Out of Poverty in 2010/CBPP

Off the Charts Blog | Center on Budget and Policy Priorities | Blog Archive | Government Programs Kept Millions Out of Poverty in 2010: "Though grim in many respects, the Census data released this morning show that poverty and hardship would have been far worse in 2010 if not for key programs such as unemployment insurance, the Earned Income Tax Credit (EITC), food stamps, and Medicaid. The new figures send a powerful message to policymakers as they consider major changes in these programs this fall."

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Torts Today: Tort Reform at the Tea Party Presidential Debate

The usual malarkey at the CNN-Tea Party! presidential candidates debate.  For a measured view, check out the Congressional Budget Office's 2009 letter to Sen. Orin Hatch in the post below on my blog Torts Today. The full menu of med mal tort reforms reduces health care costs by 0.2%. All at the expense of the injured (and their lawyers).
Torts Today: Tort Reform at the Tea Party Presidential Debate:

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Monday, September 12, 2011

China: Public comment period for new legislation

Public Comments on Draft Legislation – A First for China? | China Law & Policy:
by Elizabeth Lynch
Last Monday, ChinaGeek’s had an interesting poston the draft revisions to the Chinese Criminal Procedure Law (“CPL”). But what really caught my eye in the post was this quick statement: “proposed revisions to China’s criminal law code are currently making the rounds for public comment, as is customary prior to the revisions being ultimately approved (or not).

Sunday, September 11, 2011

The 9/11 Decade - Falling in Love With Death - Jim Dwyer -

Remembering 9/11 is something I would rather not do, rather not recall my first vision - smoke just beginning to rise from the second tower to meet that of the first, the shock when the south tower collapsed, the realization of awful incalculable loss, the futility and loss of the rescuers, walking past firehouses displaying the names and photos of the men lost. Hard to know how to remember it when misguided revenge inflicted such suffering in Iraq, satisfied with the execution of Osama Bin Laden, the day is almost past. But as so often for me a writer with an Irishman's ear strikes the note I long for. - GWC

The 9/11 Decade - Falling in Love With Death -
by Jim Dwyer

William Butler Yeats wrote of an earlier, bloody era in "Meditations in Time of Civil War.”
We had fed the heart on fantasies,
The heart’s grown brutal from the fare;
More Substance in our enmities
Than in our love
At vast cost in human capital, we carved 9/11 into the history of loss in other places, the enmities of a decade rising from the horrors of the day. But the majesty of that day does not belong to the chronicles of war. It lives in truths the size of atoms, nearly invisible and — one hopes — indestructible.
That morning, Raffaele Cava, age 80, was working on the 90th floor of the north tower. After the plane hit, no one could open the exits, so he went to another office and sat with Dianne DeFontes and Tirsa Moya. The hall floors were melting. Suddenly, two men in the stairwell pried open the door, walked in and ordered everyone to go. They were Frank De Martini and Pablo Ortiz, Port Authority employees who worked one flight down, and who took it on themselves to climb up and down 14 floors, getting scores of people out. They never left.
Tirsa Moya walked Raffaele Cava down all 90 floors.
You could ask no more of human beings.

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We Are All New Yorkers Now

Ten years ago , 7 days after the catastrophe we now call 9/11 I wrote this essay. It was accepted by my fellow members of the editorial board of New Jersey Lawyer, the New Jersey State Bar Association's weekly newspaper. I am gratified that there is a somber and fitting memorial where the towers stood.  And I am grateful for the sacrifice of those who tried to save others.

New Jersey Lawyer Weekly
September 24, 2001
10 NJL 1814


We Are All New Yorkers Now

At what point shall we expect the approach of danger? By what means shall we fortify against it? Shall we expect some transatlantic military giant to step the Ocean and crush us at a blow? Never! All the armies of Europe, Asia and America combined, with all the treasure of the earth (our own excepted) in their military chest, with a Bonaparte for a commander, could not by force take a drink from the Ohio, or make a track on the Blue Ridge, in a trial of a thousand years.
- Abraham Lincoln (1838)

At these points now do we expect the approach of danger: when a tourist visa is granted, when a man named Mohammed boards a plane, when a flight takes off from Newark bound for San Francisco, when we enter the elevator and push the button for the 44th floor, when your train stops in the tunnel, when the cell phone rings.

On The Day After, New Yorkers woke to a silent city. Dawn normally brings traffic helicopters and the background hum from the highways. On The Day After, New York was patrolled by military helicopters. An aircraft carrier was posted off the white sand beaches of Jones Beach State Park. “Tasked to provide air defense for New York”, said the NORAD commander. Air Defense? For New York? At the gateways to New York Harbor - the Throgs Neck, George Washington, and Verrazano bridges Coast Guard cutters on picket duty barred civilian traffic. No fuel, no stone, no freight, no fishermen’s skiffs could pass. No cars entered Manhattan. Traffic at mid-day was lighter than Sunday morning 7 AM.

The glistening symbol of the City is gone. A thick plume of smoke rose for days, marking the spot where thousands of the fallen towers’ workers were buried. With each wind shift another boro felt the sting of the acrid smoke. A day of mourning stretched into weeks still without end. The burials that may never come still lie dreadfully before us.

First came the offers of blood for the wounded - who never got to the hospital. Then came the firefighters, EMT’s, and construction workers from Ohio, from Tennessee, from New Jersey and Massachusetts to clear the rubble and honor the dead. Soon we saw flags fluttering from car antennas and hung from balconies and fences.

They came because New Yorkers were killed by planes filled with hostages bound from Boston for LA, because the captors incinerated other Americans along with their unmourned selves as American Airlines Flight 77 slammed into the Pentagon. They came for those who struggled with the attackers and crashed in a field in Somerset, Pennsylvania. They came because the distinction between combatants and non-combatants has been erased. We are all New Yorkers now because we are all Americans, and because we are all combatants now - and do not know the face of the enemy.

Saturday, September 10, 2011

Economist's View: Ponzi Schemes vs. Social Security

Texas governor Rick Perry's wild allegations need to be rebutted.  In this piece  Mark Thoma does just that. - GWC
Economist's View: SSA Historical Research Note #25: Ponzi Schemes vs. Social Security: "In this context, it would be most accurate to describe Social Security as a transfer payment--transferring income from the generation of workers to the generation of retirees--with the promise that when current workers retiree, there will be another generation of workers behind them who will be the source of their Social Security retirement payments. So you could say that Social Security is a transfer payment, but it is not a pyramid scheme. There is a huge difference between the two, and only a superficial similarity."

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Jeffrey Sachs: A Real Jobs Program

Jeffrey Sachs is director of the Earth Institute at Columbia University and a prominent expert on the economics of development. - GWc
Jeffrey Sachs: A Real Jobs Program:
"Obama is right that the Republican vision of relentless tax cuts, deregulation, and shrinking government is the road to ruin. Yet Obama's alternative of short-term and shortsighted stimulus is only marginally better. Neither approach is getting America back on track.

America requires at least a decade of well-designed and well-executed national investments in people, infrastructure, and innovative technologies, in order to boost competitiveness and renovate the economy. Yet such an effort requires serious plans, careful deliberation, and higher taxation on deadbeat corporations and the super-rich"

Friday, September 9, 2011

Teacher layoffs

Do American voters  really value education?  Not on the evidence so far.

The President's Speech: The American Jobs Act

President Obama got a lot right tonight.  Including the name of the bill - the American Jobs Act.

The full text is HERE.  Below is a key quote - one that should be his theme all the way through to November 2012  After that is the enhanced version of the speech - with charts - from the White House.
We all remember Abraham Lincoln as the leader who saved our Union. But in the middle of a Civil War, he was also a leader who looked to the future - a Republican president who mobilized government to build the transcontinental railroad; launch the National Academy of Sciences; and set up the first land grant colleges. And leaders of both parties have followed the example he set.

Ask yourselves - where would we be right now if the people who sat here before us decided not to build our highways and our bridges; our dams and our airports? What would this country be like if we had chosen not to spend money on public high schools, or research universities, or community colleges? Millions of returning heroes, including my grandfather  had the opportunity to go to school because of the GI Bill. Where would we be if they hadn't had that chance?

How many jobs would it have cost us if past Congresses decided not to support the basic research that led to the Internet and the computer chip? What kind of country would this be if this Chamber had voted down Social Security or Medicare just because it violated some rigid idea about what government could or could not do? How many Americans would have suffered as a result?
No single individual built America on their own. We built it together. We have been, and always will be, one nation, under God, indivisible, with liberty and justice for all; a nation with responsibilities to ourselves and with responsibilities to one another. Members of Congress, it is time for us to meet our responsibilities.

Thursday, September 8, 2011

The Goldwater Debacle

Barry Goldwater - the intellectual godfather of today's libertarians (like Ron and Rand Paul now he opposed the civil rights act of 1964) - led the Republican Party to its worst defeat in the last 50 years.  Today his successors in the Rejection Front that is today's Republican Party are rallying to Rick Perry whose nomination would set them up for attack ads like this from 1964.  (I would not count these chickens if I were Obama.  A center-right New Englander like Romney is the likely winner here.)

Wednesday, September 7, 2011

Romney/Huntsman vs. Obama/Biden

If Social Security and Medicare are the third rail of American politics (touch them you die), then Rick Perry is a dead man walking.  Decrying Social Security as a fraud and a Ponzi scheme, he walked into Mitt Romney's left upppercut:
“Our nominee has to be someone who isn’t committed to abolishing Social Security, but who is committed to saving Social Security,” Mr. Romney said. “I will be sure that we keep the program and make it financially secure.”
 So Romney will walk away with the Republican nomination.  Time to start looking at a nominee for Vice President  who is similarly center-right.  There is only one other grown-up in the room: John Huntsman - the Mandarin-speaking Mormon former Ambassador to China.  It will be a daunting lineup for Obama and Biden to face.

Tuesday, September 6, 2011

Robin Hood in Reverse Strikes Again

Off the Charts Blog | Center on Budget and Policy Priorities | Blog Archive | Robin Hood in Reverse Strikes Again: "Yet another state has proposed raising taxes on low-income residents to pay for new corporate tax breaks. Leading lawmakers in Missouri want to eliminate a property tax credit for low- and moderate-income seniors and people with disabilities in order to help finance new tax credits for businesses.

Sadly, swaps like this are increasingly common; both Michigan and Wisconsin have cut low-income programs this year to pay for business tax breaks"

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FACES OF GROUND ZERO: Images by Joe McNally

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Professional Responsibility: Groupon for lawyer services

from Prof. Alberto Bernabe's blog:  Professional Responsibility: Groupon for lawyer services: "As you know, ABA Model Rule 5.4 prevents a lawyer from sharing fees with non-lawyers other than in some limited cases. This is also true in most, if not all jurisdictions. Do lawyers violate this rule if they try to attract clients by sharing a percentage of the fee with the service that provides the means for the lawyers to communicate with the possible clients?

This is the business model of the daily coupon system now known as "Groupon" which offers customers discounted deals for future services.

Given the slow economy, many lawyers are looking for ways to attract new clients so it was inevitable that someone would think of using groupon to do so thus raising the question regarding fee-sharing.

At least two states have now published ethics opinions on the issue and both found that using groupon as an advertising method would not violate the rules that ban sharing fees with a non-lawyer. The North Carolina State Bar so concluded in its Formal Ethics Opinion 10: Lawyer Advertising on Deal of the Day or Group Coupon Website (July 14, 2011) (available here) and the South Carolina Bar did so in its Ethics Advisory Opinion 11-05 (available here). The Virtual Law Practice blog comments on them here."

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John Judis: Facing insurrection, Obama should start acting like Lincoln

John Judis has a New Republic article that is getting a lot of attention (correctly).  A house divided against itself cannot stand,” Lincoln had declared, conveying his conviction that the union could no longer countenance the existence of a slave-owning South.   Obama says he holds Lincoln as his model.  But he's got the compromise thing backwards: Lincoln was opposing, not embracing, compromise.
Compromise with whom?  The Republican Party is now a destructive not a conservative force.  Face down the insurrectionists is the message - GWC
If Obama Likes Lincoln So Much, He Should Start Acting Like Him | The New Republic: "THIS IS IMPORTANT because Obama may now be facing his own crisis of the Union. Over the last four decades, the Republican Party has transformed from a loyal opposition into an insurrectionary party that flouts the law when it is in the majority and threatens disorder when it is the minority. It is the party of Watergate and Iran-Contra, but also of the government shutdown in 1995 and the impeachment trial of 1999. If there is an earlier American precedent for today’s Republican Party, it is the antebellum Southern Democrats of John Calhoun who threatened to nullify, or disregard, federal legislation they objected to, and who later led the fight to secede from the union over slavery."

Sunday, September 4, 2011

What the Left Doesn’t Understand About Obama -

One needs to count votes. There are criticisms to be made of President Obama (mine is failure to vigorously defend the Keynesian stimulus approach) but weakness is not one.   Elihu Root famously said that a lawyer spends half his time telling his clients they are bloody fools.  Same for presidents. The key message is we can borrow what we need now, restore prosperity, and  control deficits and health care spending in the long run.  - GWC
Jonathan Chait explains:
What the Left Doesn’t Understand About Obama - "President Obama underestimated the depth of the crisis in 2009 and left himself with bad options in the event the economy failed to recover as quickly as he hoped. And yet the wave of criticism from the left over the stimulus is fundamentally flawed: it ignores the real choices Obama faced (and the progressive decisions he made) and wishes away any constraints upon his power.

The most common hallmark of the left’s magical thinking is a failure to recognize that Congress is a separate, coequal branch of government consisting of members whose goals may differ from the president’s. "
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Goodbye to All That: Reflections of a GOP Operative Who Left the Cult | Truthout

This essay by recently retired Republican congressional staffer Mike Lofgren (h/t James Fallows) is impressive for its critique of both Democrats and Republicans. You can't judge it by its leads or headlines or by selective quotes. It's better than any of those would suggest. READ the whole thing. - GWC
Goodbye to All That: Reflections of a GOP Operative Who Left the Cult | Truthout: "Barbara Stanwyck: "We're both rotten!"

Fred MacMurray: "Yeah - only you're a little more rotten." -"Double Indemnity" (1944)

Those lines of dialogue from a classic film noir sum up the state of the two political parties in contemporary America. Both parties are rotten - how could they not be, given the complete infestation of the political system by corporate money on a scale that now requires a presidential candidate to raise upwards of a billion dollars to be competitive in the general election?"

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Remembering unions on Labor Day

Not even Robert Reich, in today's Times piece  The Limping Middle Class on the stagnation of wages since 1980 (remember Ronald Reagan and the crushing of the aircraft controllers union - PATCO?), mentions the obvious: the weakening of unions has led to a decline in wages.  Now they are trying to finish the job - by eviscerating the public employee unions. - GWC
Remembering unions on Labor Day: "It was surprising when, after the brutal frontal assaults by the newly elected Republican governors that in a polling this week 52 percent still look upon and admire the union movements.
And, why not? Here’s a short list of what they were instrumental in achieving: An end to child labor, especially preteens in the mines. Establishment of the eight-hour work day and paid overtime. Workers compensation benefits for those injured on the job. Unemployment insurance for workers who lose their jobs. A guaranteed minimum wage (that Bachmann wants to wipe out). Improvement of workplace safety and reduction of job fatalities. Pensions and health care insurance for workers. Crucial support for the Civil Right Acts and Title VII which outlaws job discrimination based on race, color, religion, sex or national origin.
But, most important of all, it enlarged a struggling, low-income working class into the greatest and most expansive middle class in the world."
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Saturday, September 3, 2011

ABA: Formal Opinion 11-459: Duty to Protect the Confidentiality of E-mail Communications with One’s Client

Formal Opinion 11-459: Duty to Protect the Confidentiality of E-mail Communications with One’s Client
A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party. 

ABA: Formal Opinion 11-460 Duty when Lawyer Receives Copies of a Third Party’s E-mail

In Stengart v. Loving Care Agency, 990 A.2d 650 (N.J. 2010), the employer's lawyers mined the hard drive of a company-owned laptop and read password protected emails between a former employee and her lawyer.  The  Supreme Court of New Jersey  held the plaintiff former employee's reasonable privacy expectations were violated and that the employer’s lawyers had violated the state’s version of RPC 4.4(b)4 by failing to notify the employee’s counsel that the employer had downloaded and intended to use the messages in litigation.  The ABA's model rules address only inadvertent receipt of email communications.  In  Formal Opinion 11-460 their Standing Committee on Ethics and Professional Responsibility addresses the obligations of employers' lawyers and gives cautionary advice - suggesting the matter be presented to a court before a lawyer reads such communications. - GWC
Duty when Lawyer Receives Copies of a Third Party’s E-mail Communications with Counsel 

"When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications.  However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating.  If the  law governing potential disclosure is unclear, Rule 1.6(b)(6) allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law.  If no law can reasonably be read as establishing a notification obligation, however, then the decision whether to give notice must be  made by the employer-client, and the employer’s lawyer must explain the implications of disclosure, and the available alternatives, as necessary to enable the employer to make an informed decision. "

Friday, September 2, 2011

The Election Starts Thursday | Talking Points Memo

Josh Marshall looks forward to President Obama's job talk:
The Election Starts Thursday | Talking Points Memo: "There's no point in trying to find a plan for job creation that Republicans will support since they'll oppose any plan the president comes up with. The limitation on the president's plan should be the reality of anti-government turn of public opinion not the prospect of willing cooperation from his Republican foes.

This isn't my thought. It's what they were saying inside the White House after the debt deal/downgrade debacle.

Coming out of the debt deal the strategy inside the White House was to come back in early September proposing a mix of relatively small bore jobs initiatives (payroll tax holiday, etc.) and keep daring the Republicans to pass them until November 2012. On the debt front, drive a hardline with Republicans on the super committee. If they won't consent to any new taxes, let the triggers kick in and take the whole thing to the people on the 2012 ballot."

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`Groupon' OK'd for lawyers by S. Carolina Bar

Discount coupons, that staple of the supermarkets, came to the web with Groupon. A South Carolina bar ethics opinion says it appears to be OK - but cautions about retention of unearned fees and the possibility that one may have to refund the money paid to the consumer.
Other concerns that occur to me are that a client may incorrectly conclude that she has retained a lawyer when she pays the Groupon fee, and that the "discount" may be inadequately disclosed. Is it for an initial consultation? Or does it promise a reduced hourly rate for all future work? - GWC
SCBar // Ethics Advisory Opinion View:
Does a lawyer violate the Rules of Professional Conduct by contracting with a website to offer vouchers that can be purchased from the website and then subsequently redeemed for discounted legal services such as the preparation of wills?

The use of “daily deal” websites to sell vouchers to be redeemed for discounted legal services does not violate the Rule 5.4(a) prohibition on sharing of legal fees, but the attorney is cautioned that the use of such websites must be in compliance with Rules 7.1 and 7.2 and could lead to violations of several other rules if logistical issues are not appropriately addressed."

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Chinese Court Expresses Support for Free Speech on Sina Weibo in Ruling | iChinaStock

Sina weibo is China's twitter
Chinese Court Expresses Support for Free Speech on Sina Weibo in Ruling | iChinaStock: "Many foreign investors are highly concerned about the “regulatory risk” that Sina Weibo faces, worrying that the relatively open speech on its microblog may invite government intervention.
Yet, a recent ruling from a Chinese court indicates such regulatory risk may be overestimated as Weibo gains more official acceptance. In a recent August case, the Beijing No.1 Intermediate People’s Court described Weibo as “a space for free expression” that is “protected by the Constitution of the People’s Republic of China”, according to a report from Legal Daily, a state newspaper under the Commission of Politics and Law of the CPC Central Committee.

In the final ruling of a high-profile case of slander brought against Zhou Hongyi, chairman of Qihoo 360 Technology Co. Ltd. (NYSE:QIHU) by Kingsoft Corp (3888.HK), the court said that critical expression on Weibo plays “a supervisory role that is positive for society”."

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Law Schools Would Have to Disclose Scholarship Retention Rates Online Under ABA Section Proposal - News - ABA Journal

Law Schools Would Have to Disclose Scholarship Retention Rates Online Under ABA Section Proposal - News - ABA Journal: "Law schools would have to publish on their websites the percentage of students whose scholarships are renewed under a proposal being considered by the ABA section overseeing accreditation.

The ABA Section of Legal Education and Admissions to the Bar disclosed it is considering the idea in a second response to U.S. Sen. Charles Grassley, R-Iowa, who has posed two sets of questions to the ABA about its oversight of law schools, according to an ABA press release.

ABA President Wm. T. (Bill) Robinson III introduces the response (PDF) with a letter assuring Grassley that the association remains committed to helping law grads find rewarding legal careers."

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Thursday, September 1, 2011

The Atlantic Accent

At some point this kind of formal American diction gave way to more colloquial standard diction. But there is something lost when we give up the formal phrasing heard here.h/t James Fallows