Monday, February 28, 2011

The Economists Voice

A new journal by certifiably sane, evidence-based progressive economists The Economists' Voice.


Editors: Aaron Edlin, University of California, Berkeley
Joseph E. Stiglitz, Columbia University
Co-Editors: Jonathan Carmel, University of Michigan
Bradford DeLong, University of California, Berkeley
William Gale, Brookings Institution
James Hines, University of Michigan
Jeffrey Zwiebel, Stanford University

See, for example:

The Simple Economics of Health Reform

David M. CutlerHarvard University

Summary

According to David Cutler of Harvard, a key player in crafting health care reform, the Affordable Care Act (ACA) could turn out to be the most successful piece of health care legislation ever.

Recommended Citation

Cutler, David M. (2010) "The Simple Economics of Health Reform," The Economists' Voice: Vol. 7 : Iss. 5, Article 2.
DOI: 10.2202/1553-3832.1816
Available at: http://www.bepress.com/ev/vol7/iss5/art2

Christie Misrepresents State Workers’ Contract | FactCheck.org

Christie Misrepresents State Workers’ Contract | FactCheck.org

Missing the boat

Two years ago  I posted a copy of my own email to my daughter Taisy brushing off her inquiry about Barack Obama as a candidate for President shortly after he declared.  A `learning experience' for the candidate was my take.


Now Josh Marshall - founder and editor of Talking Points Memo - confesses to a similar goof.  More noteworthy because he is a professional student of politics. He writes today:

mentioned once before here that back in early 2004 the press person for a little-known state senator from Illinois named Barack Obama emailed me at TPM and asked if I could meet with the senator when he was next in DC. Because I always have my finger on the pulse of American politics and can magically sense what's coming next over the horizon, I never got back to them. I don't really remember whether I blew it off or simply forgot to get back to them. And as those who know me well can probably attest, it's often very difficult to distinguish the two.
But now it turns out I missed the boat on another brush with greatness.
Josh Marshall

Meta-analysis: light to moderate alcohol reduces heart disease risks

End point Number of studies RR (95% CI) 
CV mortality 210.75 (0.70-0.80)
Incident CHD 290.71 (0.66-0.77)
CHD mortality 310.75 (0.68-0.81)
Incident stroke 170.98 (0.91-1.06)
Stroke mortality 101.06 (0.91-1.23)
Maybe my problem is that I have the wrong vices.  I love to eat cookies and muffins but I can barely finish a glass of wine or a bottle of ale.  The data is now quite overwhelming: light to moderate alcohol intake reduces the risk of cardiovascular death (heart attacks, etc.) by 25% to 30%.  The article cited below discusses a recent meta-analysis of CV risks.
Steve Stiles. Light to moderate drinking: Likely cardioprotective, but recommended? . theheart.org. ; Feb 25, 2011. Accessed at http://www.theheart.org/article/1189421.do 

Sunday, February 27, 2011

The King's Speech, by David Seidler

The King’s Speech
script by David Seidler


David Seidler tonight accepted the Academy Award for Best  Original Screenplay  “On behalf of all the stutterers throughout the world.  We have a voice, we have been heard.”
The climactic moment in The King’s Speech is Colin Firth’s rendition of King George VI’s announcement to England, the Dominions, the Empire, and the world that England was at war with Germany which had just invaded Poland.  I don’t know what resemblance it has to the historical record.  But it impressed me as not only a masterful piece of rhetoric, but for something that I never expected to feel: sympathy for a British monarch.  Here is the speech, as scripted by David Seidler:
In this grave hour, perhaps the most fateful in our history, I send to every household of my  peoples, both at home and overseas, this message spoken with the same depth of feeling for each one of you as if I were able to cross your threshold and speak to you myself.For the second time in the lives of most of us, we are at war.  Over and over again we have tried to find a peaceful way out of the differences between ourselves and those who are now our enemies.  But it has been in vain.  We have been forced into a conflict.  For we are forced with our allies, to meet the challenge of a principle, which, if it were to prevail, would be fatal to any civilized order in the world.  Such a principle, stripped of all disguise is surely the primitive doctrine that might is right.  For the sake of all that we ourselves hold dear, and of the world’s order and peace, it is unthinkable that we should fail to meet the challenge.  
It is to this high purpose that I now call my people at home and my peoples across the seas, who will make our cause their own.   I aks them to stand calm and firm, and united in this time of trial.  The task will be hard.  There may be dark days ahead, and war can no longer be confined to the battlefield.  But we can only do the right as we see the right, and reverently commit our cause to God.  If one and all we keep resolutely faithful to it, then, with God’s help, we shall prevail.
UPDATE:  Thanks to John Steele below is the recording of the actual George VI delivering the address.  Actually Colin Firth did a much better job.

Torts Today: Must Presidents Defend Laws They Don’t Like? - NYTimes.com

Torts Today: Must Presidents Defend Laws They Don’t Like? - NYTimes.com

Kiobel: Second Petition for Rehearing En Banc Filed | IHRC Blog

 Last October in Kiobel v. Royal Dutch Petroleum  the 2d Circuit federal appeals court rejected a claim by Nigerian citizens that Royal Dutch Shell aided their government in the denial of human rights.  A corporation cannot be sued for human rights violations, the majority held, a conclusion vigorously disputed by Judge Pierre Leval who declared  
"[t]he majority's interpretation of international law, which accords to corporations a free pass to act in contravention of international law's norms, conflicts with the humanitarian objectives of that body of law."  
The plaintiffs' petition for en banc review was denied 5 -5 on February 4.  That occasioned passionate concurrences and dissents.  Chief Judge Dennis Jacobs denounced the proposition that foreign corporations (rather than individuals) could be sued under the ATS - saying it would be an occasion to "extort" settlements.  His language seems to indict our entire system of litigation.  Courts, he argues cannot effectively weed out frivolous claims, leading corporations to pay extortionate settlements in baseless cases.  

The case has been the subject of wide debate.  This week the New Jersey Law Journal Editorial Board added is voice to those of the critics, calling on the Supreme Court to reverse Kiobel.  But now another option has appeared: the plaintiffs have filed a second petition for rehearing en banc.  Because the first petition for en banc review was denied 5 -5 , the intervening addition of a new judge may tip the balance in favor of review.


The Harvard Law School International Human Rights Clinic is much involved with Alien Tort Statute claims. Their blog has the story and the documents.  

Saturday, February 26, 2011

deja vu: Gates warns against land wars in Asia

“In my opinion, any future defense secretary who advises the president to again send a big American land army into Asia or into the Middle East or Africa should ‘have his head examined,’ as [Army] General [Douglas] MacArthur so delicately put it,” Defense Secretary Robert Gates said in a speech at West Point this week.
How many times do we have to learn this?

Friday, February 25, 2011

China drops death penalty for 13 nonviolent crimes - USATODAY.com

It's a step, I suppose, in the right direction. But the 13 economic crimes are rarely the subject of capital prosecutions. Official corruption - occasionally a capital offense (as in the case of the head of the FDA-equivalent who took bribes). And it appears that the legislature may add a capital offense - for illegal organ trafficking.
China drops death penalty for 13 nonviolent crimes - USATODAY.com

Thursday, February 24, 2011

Ethics Profs call for Supreme Court to abide by Canons of Judicial Ethics

Justice Clarence Thomas's failure to report his wife's income, and his and Justice Scalia's recent attendance at a Koch Brothers strategy session have raised questions about judicial independence.


Alliance for Justice has organized a letter to Congress by ethics professors urging that the Supreme Court's members be bound by the same rules as other judges - the Code of Conduct for United States JudgesThe letter begins 
Justices of the United States Supreme Court have not adopted and are not subject to a comprehensive code of judicial ethics.  Nor are denials of motions to recuse by individual justices required to be in writing or subject to review.  Recent media reports have focused public attention on this situation.  The purpose of this letter is to issue a nonpartisan call for the implementation of mandatory and enforceable rules to protect the integrity of the Supreme Court
The complete text is HERE.

Are Government Employees Overpaid? Still No. « Rortybomb

Are Government Employees Overpaid? Still No. « Rortybomb


Witness Mike Huckabee - who thinks government workers are overpaid even though he is so broke he has to work for Fox News as a consultant:
So I don't want to walk away any sooner than I have to, because frankly I don't have a lot of reserve built up. Most of my life was in public service. And therefore I didn't come away wealthy. I'm trying to recover in order to do public service -- in order to run for president the last time, I cashed in my life insurance, my annuities, I pretty much went through everything I ever had as an asset that I thought I might one day live on....If I do this I'm gonna hopefully be in a position where I'm not so completely destitute at the end of it that I have no idea what to do if I get sick. Or if I retire. Or if I'm retired early, or have a disability. Those are the things I have to think about, because I'm self-employed, I don't have, you know, some safety net to fall into.

Tuesday, February 22, 2011

Judge Kessler Upholds the Health Care Reform Act

Judge Kessler
Dismissing as mere semantics the popular canard that failure to buy insurance is not an action and that inaction cannot be regulated by government, Judge Gladys Kessler, of the U.S. District Court for the District of Columbia, upheld the Affordable Care Act as a proper exercise of Congress's power under the Commerce Clause.


The opinion is HERE

Ground zero for public sector unions: Madison

“Wisconsin has become ground zero for the process of pushing back against unions,” said Steve Meyer, a professor of labor history at the University of Wisconsin-Milwaukee. “People are waiting to see what happens here. That’s why the labor movement has become so deeply involved trying to stop this process.”
As the Times reported - this is a watershed moment for public sector unions - indeed for all labor.  If leveling down succeeds we will move in the wrong direction: greater inequality in our society.  Envy is one of the seven deadly sins and Americans are at risk of falling for its charms.  Many have explained support for Walker along the lines of "I don't have a pension, why should I pay for theirs?"


To stay current on developments in Wisconsin Margo Anderson, history professor at University of Wisconsin, Milwaukee recommends three.


The Wheeler Report (news links, schedules, etc.)
Wispolitics.com - Wisconsin politics
Madison.com - news from Madison

Sunday, February 20, 2011

Labor Pains: Pro-Walker Troopers Union Repudiates Endorsement In Wisconsin | TPMDC

"I specifically regret the endorsement of the Wisconsin Trooper's Association for Gov. Scott Walker," executive board president Tracy Fuller writes in a statement dated February 16. 


"I regret the governor's decision to 'endorse' the troopers and inspectors of the Wisconsin State Patrol. I regret being the recipient of any of the perceived benefits provided by the governor's anointing. 


I think everyone's job and career is just as significant as the others. Everyone's family is just as valuable as mine or any other persons, especially mine. Everyone's needs are just as valuable. We are all great people!!"
Labor Pains: Pro-Walker Troopers Union Repudiates Endorsement In Wisconsin | TPMDC

China's stay of execution of Filipinos welcomed| The Philippine Star >> News >> Headlines

Appeals by Philippines leaders, including President Aquino's call to Chinese leader Hu Jintao have resulted in a stay of execution pending review - a rare move in response to international pressure.
China move unusual, says DFA | The Philippine Star >> News >> Headlines

Saturday, February 19, 2011

Congresswomen Electrify Planned Parenthood Abortion Debate - The Daily Beast


Re. Gwen Moore (D-WI)

Rep. Jackie Speier (D-CA)

"The House may have voted to strip Planned Parenthood of funding, but the personal stories from Gwen Moore and Jackie Speier about an unplanned pregnancy and an abortion inspired women everywhere. The two congresswomen tell Michelle Goldberg why they decided to speak out.
In the end, Reps. Gwen Moore (D-WI) and Jackie Speier (D-CA) probably didn’t sway any votes by sharing their personal stories on the House floor on Thursday night. On Friday, 240 of 241 House Republicans voted to strip Planned Parenthood, the nation’s leading provider of family planning and reproductive health care, of government funding."
The irony is that in the name of being "pro-life" the Republicans in Congress have voted to kill an organization which reduces the number of abortions through effective sex education and contraception. - gwc
Congresswomen Electrify Planned Parenthood Abortion Debate - The Daily Beast

Friday, February 18, 2011

US vetoes UN condemnation of Israeli settlements | Ed Pilkington | World news | The Guardian

WHY DID WE DO THAT?  Isn't it our policy that the settlements are illegal and a principal obstacle to peaceful resolution of the 60 year old conflict?US vetoes UN condemnation of Israeli settlements | Ed Pilkington | World news | The Guardian
An Israeli settlement in the occupied West Bank

Labor leaders ask citizens to come to Madison, Wisconsin to support public workers rights

NEA Petition to support educators, school support staff and workers collective bargaining rights

To sign the NEA petition go to Education Votes

We Pledge To Stand With America’s Educators, School Support Staff And Workers ~

We believe that educators, school support staff, nurses, firefighters and other middle class workers are essential to the well-being and safety of our families and communities.
We believe that working Americans need to use the strength of our numbers to fight for better wages and benefits, job security and safer workplaces.
We believe that the attacks happening in state after state are more of the same old partisan politics in which whatever party is in power tries to hurt the other side.
We believe that while we suffer, the same politicians support tax breaks for corporations and CEOs. Politicians know unions are a check on corporate power, so they are working to weaken or eliminate them.
To fulfill the promise of workers’ role in restoring balance to our economy, protecting and growing the middle class, and sustaining our communities, we urge governors and politicians to:
  • Meet with educators and other public employees to find fair and sensible solutions that are in the best interests of the nation’s middle class, children and families.
  • Stop the power struggle. We need balance that brings our leaders together to create quality jobs and solves the problems hurting middle class families across the country.
  • Do their share by cutting their own high salaries, pensions and perks before asking frontline, middle class workers to sacrifice even more in wage and benefit cuts.
  • Solve the problems of the middle class instead of giving even more power to the corporate CEOs who got them elected.
  • Remember that public employees are our neighbors and friends. They are educators, firefighters, social workers, and police officers. They make a lot of sacrifices and make a big contribution. It’s important not to vilify them or to suggest that somehow they are the cause of state budget problems.

Thursday, February 17, 2011

The fun begins: Fordham's new law school building



More pix and plans at Inside Fordham

The biological weapons fraud: Colin Powell demands answers over Curveball's WMD lies | The Guardian

Soldiers were ordered to be vaccinated 
against Saddam Hussein''s non-existent smallpox supply.  
Some developed endocarditis.

The Guardian reports that Gen. Colin Powell is mad at "Curveball", the aptly nick-named Iraqi fraudster who claimed - falsely he now admits - that he had personally witnessed Saddam Hussein's mobile biological warfare equipment. Powell went before the world at the U.N. and did "an Adlai Stevenson", as Christ Matthews calls it. Frankly I thought Powell was a willing shill.  The then Secretary of State said from the podium at the United Nations that we have

"firsthand descriptions of biological weapons factories on wheels and on rails … The source was an eyewitness who supervised one of these facilities".
"An eyewitness" is awfully thin ground to launch a war: especially when Hans Blix's WMD hunters had found nothing and said they needed more time. But Powell was on board and there was no stopping the train George W. Bush had put in motion.

It is easy to forget that George W. Bush launched a program of massive smallpox vaccination without any evidence that any risk existed. Public health authorities were compliant with the Presidential command. Even though no risk had been identified. Fortunately few members of the public were sufficiently motivated by the non-existent threat to subject themselves to the low but unnecessary risks of the live virus vaccine. 


 Although almost no one dared to say aloud that the emperor had no clothes - that there was NO evidence of a smallpox threat - the program was the product of intense debate about risk and compensation and safety, as I detail in my interesting but utterly ignored study Reactions and Overreactions: Smallpox Vaccination, Complications and Compensation (2003).


Wednesday, February 16, 2011

Government covers over half of health care costs

More than half of health care costs are borne by government

h/t Ezra Klein via  Paul Krugman  If we want to be more effective in health care delivery we need to use the biggest wedge: government expenditures and controls.  And BTW - caps on victims of medical malpractice is an unjust way to do it.  And turning medical malpractice adjudications over to "experts" like doctors is undemocratic and untrustworthy.  Obama ought to rethink that sop to the right.

Sunday, February 13, 2011

I'VE NEVER BEEN ON WELFARE

That's what respondents in this survey seem to be saying.  Tax breaks are not subsidies - unless it's somebody else's.  Then it's a loophole.  Social Security I paid for.  Medicare - I'm paying now.  Unemployment - they take that out of my paycheck.  Student loans - I had to pay back.  Mortgage interest deduction well...that's a tax deduction because I too deserved the American Dream...
Source:

Reconstituting the Submerged State: The Challenges of Social Policy Reform in the Obama Era

Prof. Suzanne Mettler, Cornell University, Dept. of Government

Saturday, February 12, 2011

Lincoln the lawyer

from his notes for a law lecture (1850)

I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful. The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for to-morrow which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. ....
Legal Ethics Forum: Lincoln the Lawyer

Lincoln's Gettysburg Address read by Johnny Cash, Colin Powell, Sam Waterston, et al.



Today is Lincoln's birthday.  THIS LINK will bring you to great Gettysburg address read by Johnny Cash , Colin Powell, Sam Waterston and others. 


Fourscore and seven years ago our fathers brought forth on this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal.
Now we are engaged in a great civil war, testing whether that nation or any nation so conceived and so dedicated can long endure. We are met on a great battlefield of that war. We have come to dedicate a portion of that field as a final resting-place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.
But, in a larger sense, we cannot dedicate, we cannot consecrate, we cannot hallow this ground. The brave men, living and dead who struggled here have consecrated it far above our poor power to add or detract. The world will little note nor long remember what we say here, but it can never forget what they did here. It is for us the living rather to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us -- that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion -- that we here highly resolve that these dead shall not have died in vain, that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth.

When Democracy Weakens - NYTimes.com

Bob Herbert - the New York Times columnist - hasn't gotten the message that it is unfashionable to be concerned about the poor in what used to be called "the ghetto" but now doesn't get called anything at all.  What caught my eye was his mention of my late teacher - Howard Zinn of Boston University:
The Egyptians want to establish a viable democracy, and that’s a long, hard road. Americans are in the mind-bogglingly self-destructive process of letting a real democracy slip away.
 I had lunch with the historian Howard Zinn just a few weeks before he died in January 2010. He was chagrined about the state of affairs in the U.S. but not at all daunted. “If there is going to be change,” he said, “real change, it will have to work its way from the bottom up, from the people themselves.”
I thought of that as I watched the coverage of the ecstatic celebrations in the streets of Cairo.
When Democracy Weakens - NYTimes.com

Friday, February 11, 2011

Obama: The Egyptian People Have Spoken

February 11, 2011 Mubarak steps down and Obama welcomes the change.
"It was non-violence that bent the arc of history once more".

Thursday, February 10, 2011

The year of the free-agent lawyer


The year of the free-agent lawyer by Jordan Furlong
Sobering thoughts for those of us at "national law schools" that focus on placement at large firms that seek premium fees from corporate clients and work on the pyramid structure with "top school, top grades" associates at the bottom of the pyramid topped by rain-making equity partners:

Law firms, for once, appear to be near the front of a business trend: the lawyer employment model is shifting away from full-time work in law firms towards temporary, contract, part-time, dispersed, and/or remote free-agent lawyers. And this should be no surprise, because legal work itself is making the same transition: from a model in which every task was performed (and billed) by full-time lawyers inside the law firm, to a model in which legal work is carried out by the most appropriate, efficient and cost-effective performer, regardless of status or location. Associate leverage ratios have declined from their historic mid-’00s highs and figure to stay lower for the foreseeable future; formerly bottom-heavy pyramid-shaped law firms have become and should remain noticeably slimmer.
It’s a rational development, and in the end, it will produce a legal labour model more aligned to marketplace reality than to lawyer traditions. But from now on, many lawyer jobs will be much less secure, and significantly lower-paying, than the last few decades have led us to expect. And it will give rise to a number of implications and repercussions:
  • Law schools have not seen this trend coming and they have not adjusted their business model, which still pretends that huge tuition fees can be paid off quickly with a high-paying law job. At least three years’ worth of students have graduated into an entirely different market than the one on which their schools’ economic assumptions were based, and every year that schools fail to adjust adds another year of graduates with misaligned expectations. The long-term impact: a winnowing of the number of law schools and a general (although not universal) slump in revenue among the schools that survive.

Tuesday, February 8, 2011

Legal Services: Last Line of Defense - NJ Lawyer Editorial Board

I noted with alarm that the Republican Study Committee - representing two-thirds of that party’s Members of Congress - declared in the Spending Reduction Act of 2011 that they would eliminate federal funding of the Legal Services Corporation, whichis now $420 million/year. I understand that in negotiations extreme demands are made which one expects will be compromised. But on this item compromise is not called for: the proposal should be abandoned entirely. Fortunately the New Jersey Law Journal Editorial Board has added its voice. - GWC

Editorial:  Legal Services: Last Line of Defense  
New Jersey Law Journal
Copyright 2011 ALM Media, LLC.  Further reproduction without permission prohibited.
February 04, 2011

Rule of Professional Conduct 6.1 expresses the commitment of our Supreme Court and the profession to providing legal services at reduced or no fee to persons of limited means and to support organizations that provide such services. The federal government is compelled by the Sixth Amendment to provide competent counsel to criminal defendants. A "civil Gideon" movement has urged expansion of civil legal services to the poor.
Few have expressed that commitment more poignantly than the leader of the federal War on Poverty, R. Sargent Shriver, who passed away last month. In 1967, the director of the Office of Economic Opportunity optimistically addressed students at his alma mater, Yale Law School:
"This summer, more than 800 law students will volunteer their time to bring justice to the poor. They will be using the law as a social invention, not as a social prevention. Nothing like this was happening 20 or 30 years ago. I was in law school — here at Yale — and I know. In those days, no one was tougher or more grasping than the average law student. He was a young man on the rise, eager to go up the ladder two rungs at a time. But today, something has changed — 800 of these students are going into the slums for the summer or will be traveling the circuit in rural areas. These young law students are renegades from Easy Street. They don't care about how much money they make, but how much justice they can bring."
The movement that Shriver celebrated and supported with War on Poverty dollars was institutionalized in the Legal Services Corporation and its local affiliates. Federal funding and funding through the Interest on Lawyers Trust Accounts program have been essential to supporting legal services. Unfortunately, the plunge in the real estate market has devastated Legal Services of New Jersey funding. In calendar year 2009, it received $8,085,228, compared to $25,718,614 in 2008 and $40,226,156 in 2007.
The statewide legal services system — consisting of LSNJ and six regional programs, serving all 21 counties through 23 offices — opened more than 69,000 cases in 2009, of which 1,700 were handled by volunteer attorneys. LSNJ reports that of the cases closed in 2009, 28 percent were housing cases, primarily tenant matters. Family law (divorce, separation, support and custody) accounted for 22 percent, while consumer law (bankruptcy, collection, warranties, unfair sales practices and disputes with public utilities) and income maintenance matters (Social Security, SSI, food stamps) accounted for 18 percent and 16 percent, respectively.
Just a couple of months ago, relying on an LSNJ report on irregularities in residential mortgage foreclosures, the state Supreme Court took various actions to make certain that foreclosure proceedings are adequately supported by knowledgeable affiants.
We believe that legal services carry on an important role and were therefore alarmed to hear of a proposal to eliminate all of its federal funding. We strongly oppose it.
The continued existence of a free and democratic society depends upon recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and the capacity of the individual through reason for enlightened self-government. The public will not respect that if they cannot access the levers of the law.
The need of members of the public for legal assistance is met only if they recognize their legal problems, appreciate the importance of seeking assistance, and are able to obtain the services of acceptable legal counsel. For that, legal services play a key role. However pressing disorder in our fiscal house may be, it is critical that we not back away from this historic commitment to a program that is already deeply wounded by economic forces beyond its control.

Thursday, February 3, 2011

Legal Ethics Forum: Supreme Court Update

Legal Ethics Forum: Supreme Court Update
Eleven cases now before the Supreme Court on the law of lawyering. Renee Knake brings us up to date.

Legal Ethics Forum: Fifth Circuit Opinion on the Constitutionality of Louisianna Advertising Rules

Legal Ethics Forum: Fifth Circuit Opinion on the Constitutionality of Louisianna Advertising Rules

MDL Judge finds Kenneth Feinberg not a neutral but an agent of BP


District Judge Carl Barbier, who supervises the multi-district litigation arising from the BP Oil Spill has issued an order which requires that BP and attorney Kenneth Feinberg who administers the "Gulf Coast Claims Facility"
[r]efrain from referring to the GCCF, Ken Feinberg, or Feinberg Rozen, LLP (or their representatives), as “neutral” or completely “independent” from BP. It should be clearly disclosed in all communications, whether written or oral, that said parties are acting for and on behalf of BP in fulfilling its statutory obligations as the “responsible party” under the Oil Pollution Act of 1990.
The order seems wise to me.  The agreement between the Feinberg firm and BP provides:

A. At the request of the White House and BP, Kenneth R. Feinberg (“Feinberg”),
acting through and as a partner of Feinberg Rozen, has established the Gulf Coast Claims Facility (“GCCF”) to independently administer and where appropriate settle and authorize the payment of certain Claims asserted against BP as a result of the explosion at the Deepwater Horizon rig and consequent spillage of oil into the Gulf of Mexico (the “Event”).
***
1. Services and compensation
Feinberg Rozen shall perform the claims administration and settlement services described in Exhibit A attached hereto (collectively, the “Services”) in accordance with the terms of this Agreement, including the exhibits hereto. In performing such Services, Feinberg Rozen agrees to make available the services of Feinberg.
(b) Feinberg Rozen shall perform the Services in accordance with all applicable laws and regulations and the Claims Protocols set forth in Exhibit B. Without limiting the generality of the foregoing, Feinberg Rozen shall follow OPA as it operates and administers the GCCF.
(See the BP Horizon Spill documents page on my blog TortsToday)

Feinberg's settlement authority is limited by the terms of the OPA - and BP has the right to renew (or presumably to cancel for breach) a highly remunerative contract.

Although the agreement itself declares that there is no attorney client relationship - and the estimable Stephen Gillers says so too - I think “attorney for BP” is an accurate way to describe his role. He is settling claims and obtaining general releases. Of course claims servicing agents do similar things.

But Feinberg is an attorney of impeccable reputation. So when he claims to be “independent” that may carry persuasive weight with claimants. Certainly his authority as attorney and settlement agent appears to be broad - - so long as he stays within the parameters of the Oil Pollution Liability Act of 1990. (BP can appeal to a private panel awards of more than $500,00). 

Feinberg  is an authorized settlement agent of BP. I think that would be a more prudent way for the Gulf Coast Claims Facility to be described to claimants. To fail to do that presents the risk that a claimant could set aside an agreement - asserting that his waiver was not fully informed - that he thought a neutral, disinterested judgment had been made.  Judge Barbier's ruling seems to substantially remedy that problem.

Leonard Joy - Federal Defender in NY retires

Leonard Joy, in patrician portrait pose
 at his Morristown, NJ home
It is not often that a public defender gets the credit that is properly due him - or her.  Prosecutors, in the public mind, stand for rectitude.  Defense lawyers, in the public mind, too often stand for, well, for their clients - the accused, the guilty.  Defense lawyers are accused of relying on technicalities.  I've never heard the accusation addressed to a prosecutor.  

So as a one-time defense lawyer, a "pool attorney" for the New Jersey Office of the Public Defender, I was pleased to see the New York Times give Leonard Joy his due: as the retiring long-time leader of the Federal Defender in New York.  He and his staff brought to their jobs the integrity and competence needed to maintain the integrity of the system, to provide the legitinacy the courts need - the assurance that evidence not bias was the ground of verdicts entered.  

Wednesday, February 2, 2011

兔年愉快 Happy Lunar New Year

亲爱的朋友们


春节好! 新年快乐。万事如意!- 乔治

The good old days..when the right to bear arms was the duty to serve in the militia

Minuteman statue, Concord, MA
for white men between 18 and 45.  Here is the enrollment provision of the Militia Act of 1792 (which sure doesn't sound like an individual right to bear arms to me):

Old North Bridge, Concord - site of the `shot heard round the world'
I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved.
That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.
That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

Tuesday, February 1, 2011

Mubarak calls for constitutional reform

In his inelegant and incomplete concession speech Egyptian President Hosni Mubarak said:
"I say in all honesty and regardless of the current situation that I did not intend to nominate myself for a new presidential term. I have spent enough years of my life in the service of Egypt and its people.
"I am now absolutely determined to finish my work for the nation in a way that ensures handing over its safe-keeping and banner ... preserving its legitimacy and respecting the constitution.

"I will work in the remaining months of my term to take the steps to ensure a peaceful transfer of power.

"According to my constitutional powers, I call on parliament in both its houses to discuss amending Article 76 and 77 of the constitution concerning the conditions on running for presidency of the republic and it sets specific a period for the presidential term.

"In order for the current parliament in both houses to be able to discuss these constitutional amendments and the legislative amendments linked to it for laws that complement the constitution and to ensure the participation of all the political forces in these discussions, I demand parliament to adhere to the word of the judiciary and its verdicts concerning the latest cases which have been legally challenged.
Articles 75 and 76 are in the link below. Basically the parliament puts forward one candidate for a six year term. The relevant Articles are below: