Monday, April 30, 2012

Turn over The Prosecutor's File _ NJLJ Editorial Bd

The cure for Brady violations: turn over the entire file, removing the discretion of the prosecutors to do what lawyers are habitually slow to see: the weaknesses in their own case - which the Brady rule of minimum disclosure rule requires them to do. - gwc

The Prosecutor's File:
by the New Jersey Law Journal Editorial Board 
"The Stevens case is not only a reminder of the constitutional requirements upon the prosecution under Brady but also of the fact that discovery in criminal cases in the federal system is almost nonexistent. Federal defendants are entitled to transcripts of their own grand jury testimony, but, in most jurisdictions, virtually nothing else until the time of trial. And even then, federal reports relative to witnesses who testify in the government's case are not provided to the defense until after the direct testimony of the witness. We are informed that in a number of federal jurisdictions, United States attorneys in fact provide more discovery than the federal rules require, although it appears that most adhere to the strictly limited discovery practice.
In state prosecutions in New Jersey, the prosecutor turns over virtually the entire file to defense counsel. The defendant is entitled to grand jury testimony of all witnesses, lists of anticipated prosecution witnesses and witness statements. We have long believed that such broad discovery should be routinely provided in federal prosecutions as well."

Saturday, April 28, 2012

Conoco, China National to Pay $360 Million for Oil Spill - Bloomberg

Conoco, China National to Pay $360 Million for Oil Spill - Bloomberg:
"China National Offshore Oil Corp. (883) and ConocoPhillips agreed to pay 2.28 billion yuan ($360 million) to resolve claims and pay for environmental programs in China’s Bohai Bay after spilling 3,000 barrels of oil and drilling mud in the area last year.
Under an agreement with the State Oceanic Administration, the two companies will pay 1.683 billion yuan for “possible impacts” on the bay’s marine environment, Houston-based ConocoPhillips said in an e-mailed statement today. Conoco, the operator of the well in the Penglai oilfield, will pay 1.09 billion yuan of that as well as 113 million yuan to “support environmental initiatives.”
China National Offshore, the nation’s largest offshore oil producer, will pay 480 million yuan for programs designed to protect the Bohai Bay, according to a statement from the State Oceanic Administration. State-owned China National Offshore, based in Beijing, owns 51 percent of the well, according to ConocoPhillips. (COP)"

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Friday, April 27, 2012

Let’s just say it: The Republicans are the problem. - The Washington Post

Tom Mann and Norman Ornstein are Republicans of the old school: fiscal conservatives, social moderates.  Like George W. Bush speech writer David Frum, they have reached their limitand are ready to say: 
Let’s just say it: The Republicans are the problem. - The Washington Post:
by Tom Mann and Norman Ornstein

Rep. Allen West, a Florida Republican, was recently captured on video asserting that there are “78 to 81” Democrats in Congress who are members of the Communist Party. Of course, it’s not unusual for some renegade lawmaker from either side of the aisle to say something outrageous. What made West’s comment — right out of the McCarthyite playbook of the 1950s — so striking was the almost complete lack of condemnation from Republican congressional leaders or other major party figures, including the remaining presidential candidates.It’s not that the GOP leadership agrees with West; it is that such extreme remarks and views are now taken for granted....
Today, thanks to the GOP, compromise has gone out the window in Washington. In the first two years of the Obama administration, nearly every presidential initiative met with vehement, rancorous and unanimous Republican opposition in the House and the Senate, followed by efforts to delegitimize the results and repeal the policies. The filibuster, once relegated to a handful of major national issues in a given Congress, became a routine weapon of obstruction, applied even to widely supported bills or presidential nominations. And Republicans in the Senate have abused the confirmation process to block any and every nominee to posts such as the head of the Consumer Financial Protection Bureau, solely to keep laws that were legitimately enacted from being implemented. 

I Want My (Immigration) Lawyer! The Necessity of Court-Appointed Immigration Counsel in Criminal Prosecutions after Padilla v. Kentucky by Scott Grubman :: SSRN

Scott Robert Grubman
U.S. Department of Justice; U.S. Attorney's Office, Southern District of Georgia
Nevada Law Journal, Vol. 12, No. 2, pp. 364-394 (2012) 

I Want My (Immigration) Lawyer! The Necessity of Court-Appointed Immigration Counsel in Criminal Prosecutions after Padilla v. Kentucky by Scott Grubman :: SSRN:
In Padilla v. Kentucky, the Supreme Court held that, under the Sixth Amendment, counsel is required to advise a noncitizen of the possibility of deportation in the event of a criminal conviction in order for the representation to be constitutionally valid. In cases where the immigration consequences of a plea or conviction are clear and succinct, an attorney is required to discuss those consequences with the client. However, in cases where those consequences are less certain, an attorney is only required to advise the client regarding the possibility of such consequences. This Article discusses what happens when the immigration consequences are too complicated for a criminal attorney to ascertain but the client is indigent and cannot afford to hire an immigration attorney.

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Bullying the Nuns by Garry Wills | NYRblog | The New York Review of Books

Adrian Dominican sisters
Garry Wills was inspired by the Adrian Dominican nuns who taught him in elementary school
I was inspired by Sr. Mary Martin DePorres in elementary school CDC classes .  Named after a black saint, I wonder what became of her. - GWC
Bullying the Nuns by Garry Wills | NYRblog | The New York Review of Books:
by Garry Wills
 "The Vatican has issued a harsh statement claiming that American nuns do not follow their bishops’ thinking. That statement is profoundly true. Thank God, they don’t. Nuns have always had a different set of priorities from that of bishops. The bishops are interested in power. The nuns are interested in the powerless. Nuns have preserved Gospel values while bishops have been perverting them. The priests drive their own new cars, while nuns ride the bus (always in pairs). The priests specialize in arrogance, the nuns in humility."

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Thursday, April 26, 2012

Paul Ryan's Claim That His Budget Reflects Catholic Teaching Is 'Nonsense' | The Nation

The U.S. Conference of Catholic Bishops has adhered to Catholic social teaching on economic justice, putting them in sharp conflict with Rep. Paul Ryan's Ayn Rand-inspired every man for himself budget. - GWC
Paul Ryan's Claim That His Budget Reflects Catholic Teaching Is 'Nonsense' | The Nation:
by John Nichols
"If you’re Paul Ryan, you don’t decry the church for engaging in class warfare. Instead, you spin an interpretation of the church’s latest pronouncements that bears scant resemblance to what’s been written—but that just happens to favor your political interests.
Ryan says: “The preferential option for the poor, which is one of the primary tenants of Catholic social teaching, means don’t keep people poor, don’t make people dependent on government so that they stay stuck at their station in life, help people get out of poverty out onto life of independence.”
That worked for a while, as Ryan made the rounds of Washington talk shows, and as he spoke out of both sides of his mouth on trips home to a district that is home to dozens of Catholic churches and religious institutions.
But now he’s up against the Jesuits."

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Emancipate the Entitlement Plantation | GOPlifer | a blog

Chris Ladd, like David Frum, preaches rational Republicanism.  He does it in Texas.  Brave man. - GWC
Emancipate the Entitlement Plantation | GOPlifer | a blog:
by Chris Ladd
 "It takes serious chutzpah, supported by a generous dose of bigotry, to vehemently defend Medicare and the mortgage interest deduction while ranting about an entitlement culture.  In their “outreach” to black communities, Tea Party figures like Allen West decry a plantation mentality that keeps African-Americans voting for Democrats.  They claim that blacks are chained to government programs that keep them poor.

Where do affluent suburbanites fit on this plantation?  What’s keeping the oppressed white folk from throwing off the chains of their flex cards and free Rascal scooters?  Liberation, by this definition, is best for the other guy.

Congress is beginning to flirt with the Simpson-Bowles plan which would trim entitlements in every direction.  It’s time for the public to get behind it.  We can’t keep paying for this lifestyle.  For a long list of reasons we need to make real Bill Clinton’s hollow claim that “the age of big government is over.”

I’m ready to leave this plantation.  You go first"

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Wednesday, April 25, 2012

Separation Anxiety | Commonweal magazine

Separation Anxiety | Commonweal magazine:
by Timothy Jost
"On March 12, as required by the Affordable Care Act, the federal government released regulations that will determine how state health-insurance exchanges will work. Within days, the law’s opponents charged once again that “tens of millions of Americans will be getting federal subsidies to pay for abortions.” What’s more, according to the critics, the new regulations will end up tricking prolife Americans into inadvertently signing up for insurance plans that cover abortions.
Not true. Rather, the ACA may be the single most prolife piece of legislation ever adopted by Congress. Once the legislation is fully implemented, it will extend insurance coverage for life-saving medical care to millions of Americans, thousands of whom die each year because they lack access to care"

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Romney budget: massive cuts in Medicare, Medicid

Jared Bernstein | On the Economy:

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Justice for Trayvon Martin and George Zimmerman

The New Jersey Law Journal Editorial Board has sharply criticized Special Prosecutor Angela Corey for her prejudicial remarks at the press conference announcing the indictment of George Zimmerman for 2d Degree murder in the Trayvon Martin slaying.

copyright American Lawyer Media - ALM (April 20, 2012)

Trayvon Martin's death as he walked through a gated community where he was visiting his father has evoked powerful responses. The local police and prosecutor took no action, fueling outrage. Many emotionally identified with Martin as an innocent victim, guilty only of being black and unrecognized by an armed neighbor who had styled himself as a "neighborhood watchman." Martin's hooded sweatshirt became an iconic symbol of the suspicion with which black men are so often greeted while doing nothing out of the ordinary. Public and media attention intensified when the president observed that if he had a son, the child would look like Martin.
George Zimmerman, the gunman, evoked the sympathy of many who saw the killing as an instance of self-defense when two men struggled, or identified Zimmerman as a principal in a tragic misunderstanding.
As public suspicions hardened into firm convictions, a special prosecutor was appointed. We thought that an excellent decision, as the case remained a nationwide topic of passionate debate. In such circumstances, it is particularly important that law enforcement meet the highest standards of integrity and competence.
We sensed trouble when Florida Special Prosecutor Angela Corey announced she would not convene a grand jury, skipping the first means of testing one's evidence and demonstrating recognition of the citizenry's right to gauge the conduct of prosecutors. Then she filed an affidavit of probable cause that is so thin the second-degree murder criminal information may not survive a motion to dismiss. Our anxiety deepened when she stepped up to the microphone for a presentation that seemed designed to project the sincerity of her conclusion that Zimmerman was guilty beyond a reasonable doubt of the crime of second-degree murder when he killed Martin.
She began her remarks reporting that she had just spoken with Martin's "sweet parents" to whom she had "promised answers to all their questions" — answers which she now had. She thanked her staff and the governor who appointed her. After some boilerplate remarks about prosecutors as "ministers of justice," she quickly went off script, saying: "The first thing my team and I did upon being appointed was to meet with Trayvon's family and pray with them. We opened our meeting with prayer."
Corey went on to thank "all those people across this country who have sent positive energy and prayers our way." She asked them to continue to pray for Martin's family and for her team. "Remember, it is Trayvon's family that are our constitutional victims."
Hofstra Law School Professor Monroe Freedman has asked rhetorically, "At this point, do we need the due process of a trial by jury? Can Zimmerman receive the due process of a trial by an impartial jury? Why should anyone care?" As Freedman observed, Corey's press conference was suffused with assertions of her belief that she had sought and found the truth. She committed multiple violations of the American Bar Association standards of professional conduct for prosecutors. First, the comment to Std 3.1 provides "the opinion of the lawyer on the guilt of the defendant, the merits of the case, or the merits of the evidence in the case" is "ordinarily likely to have a substantial likelihood of prejudicing a criminal proceeding." And the comment to ABA Std. 3-2.1 declares: "The idea that the criminal law ... is designed to vindicate public rather than private interests is now firmly established." And ABA Std. 3-3.2, cmt. says: "the prosecutor's client is not the victim."
The public and the truth — not Martin's bereaved "sweet parents" — are the prosecutor's clients. Zimmerman's lawyer is now faced with the formidable task of overcoming the prosecutor's multiple affirmations of her belief that she has found "the truth." If the state of Florida is to persuade the public that justice has been done, Corey will have to work overtime to demonstrate what she seems only dimly to grasp: that justice for Trayvon Martin requires justice for George Zimmerman.

Grass is always greener: Cardiologists feel underpaid |

Glass half empty for most cardiologists. - gwc
Money earned by cardiologists | "New York, NY -
 US cardiologists earned an average of $314 000 in 2011, with the highest earners being cardiologists working in a single-specialty group practice, results from a new physician compensation survey reveal. For these physicians, their average annual salary was $388 000. Despite the numbers, 54% of cardiologists felt they were inadequately compensated, and only 13% considered themselves wealthy. Nearly four in 10 cardiologists said their income is no better than nonphysicians, while 50% said that although their income might qualify them as part of "the 1%," they did not consider themselves rich because of expenses and debt."
In fact, if they had to do it all over again, just 50% said they would choose cardiology as their specialty and only 18% said they would choose the same practice setting. Less than half of respondents said they would choose a career in medicine, a number that is down from the 65% who said they would again choose medicine as a career in 2010.
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Tuesday, April 24, 2012

Bishops' losing strategy - by Margaret O'Brien Steinfels - Commonwealels

A Losing Strategy | Commonweal magazine: by Margaret O'Brien Steinfels
"What are the U.S. Catholic bishops really arguing about with the Obama administration? Is it religious liberty, as they insist? Is it contraception and sterilization, as the headlines in my archdiocesan paper stress? Is it a desire, conscious or unconscious, to reassert their authority after the dog days of the sexual-abuse scandal? Is it simply anti-Obama prejudice? Maybe it’s all of the above, and then some: perhaps they just lack astute advisers. In any event, the daunting task of explaining the Catholic bishops to others and to oneself has come a cropper. They are digging a hole from which they may never emerge."

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Monday, April 23, 2012

A Dangerous Mind? -

A Dangerous Mind? -
by Andrew March
 "LATE last year, a jury in Boston convicted Tarek Mehanna, a 29-year-old pharmacist born in Pittsburgh, of material support for terrorism, conspiring to provide material support to terrorists and conspiring to kill in a foreign country, after a 35-day trial in which I testified as an expert witness for the defense.

On April 12, Mr. Mehanna was sentenced to 17 and a half years in prison. Hearing this, most Americans would probably assume that the F.B.I. caught a major homegrown terrorist and that 17 and a half years is reasonable punishment for someone plotting to engage in terrorism. The details, however, reveal this to be one of the most important free speech cases we have seen since Brandenburg v. Ohio in 1969."

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Saturday, April 21, 2012

Most elderly mainly dependent on Social Security

When people like Paul Ryan and Mitt Romney says they will not touch Social Security for anyone currently receiving it - don't believe it. = GWC

 "55 percent of the elderly get more than half their income from Social Security; 33 percent get more than 80 percent of their income from that source.
And if you look at Table 10.5 you see that the elderly in the middle of the income distribution get 66 percent of their income from Social Security, versus 9 percent from private pensions and just 5 percent from assets.
If that’s not the way the elderly people you know live, that’s because they’re not representative."

Friday, April 20, 2012

Dear media: Tell readers the truth about GOP filibustering - Jonathan Bernstein - Plum Line - The Washington Post

The founders did not contemplate constitutional amendment by minority obstructionism.  They opted for future majorities to ratify treaties and to overurn a Presidential veto.  They never imaginged, nor did anyone until Mitch McConnell implemented it to wreck Barack Obama's legislative agenda that everything would require a60 vote super-majority, effectively amending the constitution by making the filibuster routine.  Technically it is a vote to cut off debate - a cloture' vote. As implemented by today's GOP it makes the Senate a chamber where the majority cannot rule. - GWC
Dear media: Tell readers the truth about GOP filibustering - The Plum Line - The Washington Post
by Jonathan Bernstein
"The death-by-filibuster of the Buffett Rule in the Senate yesterday revealed, among other things, that the news media still has a ways to go in learning how to report on the era of the 60-vote Senate.
Most Americans, not surprisingly, do not realize that majorities can no longer get their way in the Senate. After all, it wasn’t that long ago that most key votes in the Senate were based on simple majority voting. Only since 1993 has constant filibustering been common, and only in 2009 did Republicans create a situation in which virtually everything requires a supermajority. Reporting in these circumstances is a bit tricky, but if you are going to tell the full story of a bill killed by filibuster, you need to report not just the outcome — a bill lost — but that majority sentiment was thwarted by a minority.
So, how did the major papers do yesterday? Neither the New York Times nor the Washington Post had the word “filibuster” in their on-line front page headlines or teaser"

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Thursday, April 19, 2012

Participatory Democracy: From the Port Huron Statement to Occupy Wall Street | The Nation

Participatory Democracy: From the Port Huron Statement to Occupy Wall Street | The Nation:
by Tom Hayden
"This is the fiftieth anniversary year of the Port Huron Statement, the founding declaration of Students for a Democratic Society, issued as a “living document” in 1962. The SDS call for a participatory democracy echoes today in student-led democracy movements around the world, even appearing as the first principle of the Occupy Wall Street September 17 declaration."

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Tuesday, April 17, 2012

David Frum on Obama Lessons in Robert Caro’s Lyndon Johnson - The Daily Beast

David Frum on Obama Lessons in Robert Caro’s Lyndon Johnson - The Daily Beast: "A great work of history is never only about the past.

The fourth volume of Robert Caro’s great biography of Lyndon Johnson—The Passage of Power—tells a story from seemingly long ago. Page after page conjures up a vanished world: a world in which labor unions had clout and lunch counters were segregated. Yet it’s also a world deeply familiar to us: a world in which urgent national problems go unaddressed year after year, and Americans despair over the paralysis of their government."

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Sunday, April 15, 2012

With God on our side: Angela Corey and Trayvon Martin

Angela Corey
I sensed trouble when Florida Special Prosecutor Angela Corey announced she would not convene a grand jury, skipping the first means of testing one's evidence and demonstrating recognition of the citizenry's right to gage the conduct of prosecutors.    Anxiety deepened when she stepped up to the microphone with a large gold cross hanging from her neck, offering irrelevant support for her conclusions that George Zimmerman was guilty beyond a reasonable doubt of second degree murder when he killed Trayvon Martin.
After reciting a bunch of boiler plate "right things", and thanking the Governor who appointed her she quickly went off the rails.
The first thing my team and I did upon being appointed was to meet with Trayvon’s family and pray with them. We opened our meeting with prayer.
Ms. Corey thanked “all those people across this country who have sent positive energy and prayers our way,” and she asked them to continue to pray for Trayvon’s family and for her team. “Remember, it is Trayvon’s family that are our constitutional victims....”
Prof. Monroe Freedman asks rhetorically "At this point, do we need the due process of a trial by jury? Can Zimmerman receive the due process of a trial by an impartial jury? Why should anyone care?"  
Freedman details Corey's multiple violations of ABA standards of professional conduct for prosecutors.    The public and the truth, not Trayvon Martin's bereaved "sweet family" are her clients as prosecutor.  Justice for Trayvon Martin requires justice for George Zimmerman-  a point which Ms. Corey seems to inadequately grasp.
The Florida Times Union report has useful links and details.

Corey's written statement.

Saturday, April 14, 2012

Florida AG objects to BP oil spill settlement|

beach clean-up in Pensacola, FL in 2010
BP oil spill settlement proposal draws objections from Florida attorney general |
by Mark Schleifstein, The times-Picayune
"Florida's attorney general on Friday asked the federal judge overseeing a proposed settlement between private claimants and BP over the Gulf of Mexico oil spill to delay preliminary approval of the settlement until her state and other parties have a "meaningful opportunity for review and comment." In a statement filed in New Orleans with U.S. District Judge Carl Barbier, Florida Attorney General Pamela Bondi said it appears the settlement includes businesses and residents only in Florida's Panhandle and west coast."

The sparse information released about the settlement by the Plaintiffs Steering Committee, which represents private claimants in the negotiations with BP, limits the settlement to four southeastern counties of Texas and the Panhandle and west coast of Florida and adjacent Gulf waters, but includes the entire states of Louisiana, Mississippi and Alabama, she said, referring to a question-and-answer memo released by the lawyers.

"This document offers no rationale as to why anyone in the entire states of Louisiana, Mississippi or Alabama can claim economic damages, but Floridians and their businesses are limited to specific regions," she said.

Bondi also objected to a provision in Barbier's order setting up a transition process while the settlement negotiations are completed because it ends interim payments to individual claimants. the provision violates the Oil Pollution Act, the Florida Attorney General said.
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Justice for Trayvon - Charles Blow -

Justice for Trayvon - by Charles Blow
 "This is a moment when America should be proud. The wheels of justice are finally turning. The State of Florida has taken up the cause of the dead boy. His life is no more, but his legacy will live forever.
The state will vigorously prosecute, and Zimmerman will be vigorously defended as is his constitutional right.
The facts should come out in court and under oath and not just over airwaves and in newspapers. Truth will be sought and, hopefully, found. And whatever the verdict, it will be based on the presentation of evidence and the interpretation of the law, as it should be."

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Thursday, April 12, 2012

People's Daily calls for stability after Bo's case exposed - People's Daily Online

People's Daily calls for stability after Bo's case exposed - People's Daily Online:
"BEIJING, April 11 (Xinhua) -- A commentary to be published Thursday by the People's Daily calls for maintaining reform, development and stability after China's leadership announced a decision Tuesday to investigate Bo Xilai for serious violations of discipline.
The Communist Party of China (CPC) Central Committee also announced Tuesday to suspend Bo's membership of the CPC Central Committee Political Bureau and the CPC Central Committee.
At the same time, police authorities announced the reinvestigation of the death of British citizen Neil Heywood, in which Bo's wife and an orderly at Bo's home are highly suspected.
The commentary says the central authority's decision and the reinvestigation have aroused "strong reactions" among Party members and the society, and government officials and the masses firmly support the decision"

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Commonweal deplores statement of U.S. Catholic bishops

The issues of freedom of religion are often complex (see, e.g. ACLU v. Sebelius) - and one of the dangers is that people will forget its complexity and oversimplify the issues.  That is what the bishops did in today's statement to which  Commonweal responded - criticizing the call by the country's Catholic bishops call for a "Fortnight for Freedom.  There is a lot more to the editorial, but this captures the spirit of the magazine's  statement. - GWC
dotCommonweal » Blog Archive » Religious freedom & the U.S. Catholic bishops:
 "The USCCB’s statement vastly exaggerates the extent to which American freedoms of all sorts and of religious freedom in particular are threatened. Church-state relations are complicated, requiring the careful weighing of competing moral claims. The USCCB’s statement fails to acknowledge that fact. Worse, strangely absent from the list of examples provided by the bishops is the best-documented case of growing hostility to religious presence in the United States: hostility to Islam. Unless the bishops correct that oversight, their statement will only feed the impression that this “campaign” for religious freedom has been politically tailored. This silence is especially striking in view of the parallels between anti-Muslim sentiment today and the prejudice encountered by Catholic immigrants in the nineteenth century. If religious freedom becomes a partisan issue, its future is sure to grow dimmer, not brighter.  Religious liberty, absolutely. Partisan politics, no."

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Catholic Bishops Urge ‘Campaign’ for Religious Freedom -

Oh, please - a "Fortnight for Freedom"!  Catholics have won acceptance in the United States but the bishops are determined to squander it. The freedom to - refuse to provide contraceptive care for employees and students at Catholic hospitals and colleges? To impose a papal mistake on everyone served by or serving a Catholic institution?  This Cardinal Spellman redux is painful to watch as the Bishops increasingly isolate themselves and the Church, which has already lost one-third of its adult adherents.  We have six Catholics on the Supreme Court - four of them hopeless reactionaries poised to kill a national health insurance reform that the bishops long supported until their rigidity led them to oppose it even though the bill did much to accommodate the bishops concerns that Catholic opposition to abortion not be compromised or violated. - GWC
Catholic Bishops Urge ‘Campaign’ for Religious Freedom - by Laurie Goodstein
"The nation’s Roman Catholic bishops issued a proclamation on Thursday calling for every priest, parish and layperson to participate in “great national campaign” to defend religious liberty, which they said is “under attack, both at home and abroad.”
In particular they urged every diocese to hold a “Fortnight for Freedom” during the two weeks leading up to the Fourth of July, for parishioners to study, pray and take public action to fight what they see as the government’s attempts to curtail religious freedom."

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Connecticut House Votes to Repeal Death Penalty -

When I wrote the introductory essay for the Seton Hall Legislative Journal volume on New Jersey's repeal of the death penalty I titled it Herald of Change? and wondered if there would be any truth to it.    With the fifth state in five years abolishing capital punishment, the answer is clear.
Connecticut House Votes to Repeal Death Penalty - by Peter Applebome
 "HARTFORD — After more than nine hours of debate, the Connecticut House of Representatives voted on Wednesday to repeal the state’s death penalty, following a similar vote in the State Senate last week. Gov. Daniel P. Malloy, a Democrat, has said he will sign the bill, which would make Connecticut the 17th state — the 5th in five years — to abolish capital punishment for future cases."
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Tuesday, April 10, 2012

Tyranny? | Commonweal magazine

by the editors
Tyranny? | Commonweal magazine:
 "Two years after the Patient Protection and Affordable Care Act became law—and two years before many of its provisions are scheduled to go into effect—the Obama administration’s most important achievement faces an uncertain prognosis....we need a way to distribute the risk of serious illness as broadly, and therefore efficiently, as possible. Hence the mandate. There’s nothing tyrannical about it, and even if there were, voters wouldn’t need the Supreme Court to provide a cure. The Constitution itself insures an adequate remedy for tyranny. It’s called the ballot box.

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Saturday, April 7, 2012

Flaws in St. Jude Heart Defibrillator Shake the Industry -

The Times headline writer needs to do this one over.  Implanted cardiac defibrillators are failing in high numbers and the implant makers are shaken?  How about the patients?  I wonder if the eight Supreme Court justices who exempted the makers from tort liability for defective design are shaken.  [Only Ruth Ginsburg dissented in Riegel v. Medtronic (1968)].  How about you Congressmen and Senators - will you heed the call? - GWC
Flaws in St. Jude Heart Defibrillator Shake the Industry -
by Barry Meier and Katie Thomas
"Last October, a high school football coach named Greg Jessee was standing on the sidelines watching his son play when he felt a jolt to his chest. The heart defibrillator implanted in him five years earlier was firing wildly. The next jolt made him double up. The one after that knocked him unconscious."

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Friday, April 6, 2012

A.G. Holder defends Obama, affirms presumption of consitutionality

In a widely publicized temper tantrum three Fifth Circuit judges in a Tea Party moment demanded the U.S. Attorney before them obtain an affirmation from the Attorney General that the President and Department of Justice accept the principle of judicial review.  Attorney General Holder has replied.  In a blunt letter memorandum - addressed to the three without honorifics or formality - the AG defended President Obama's remarks in defense of the health care reforms, and reminded the judges of the strong presumption of constitutionality and deference due to Congress - particularly when it exercises its power to regulate interstate commerce.

Toobin - 5th Circuit judges deranged, Obama OK

After accusing a federal appellate court panel of throwing a “hissy fit” about President Barack Obama, outspoken CNN legal analyst Jeffrey Toobin said Thursday that the order requiring the president to explain his beliefs about judicial review was a “disgrace” and he called some Republican judges “deranged by their hatred for the president.”
“I think what these judges have done is a disgrace,” Toobin said on CNN. “What President Obama said was entirely appropriate. There is nothing wrong, there’s nothing controversial.”
“He said, ‘I signed a law that was passed by the democratically elected congress and I think it’s constitutional.’ And then these judges give the Justice Department a homework assignment, a three-page letter, single spaced, explaining what the president said,” he said.


Tuesday, April 3, 2012

What Obama said about the Supreme Court and the ACA Case

There is a lot of overheated rhetoric about President Obama's remarks on the Supreme Court and the challenge to the Affordable Care Act aka Obamacare.  The no insurance penalty is taken as a deprivation of liberty on the right see, e,g,  The most hysterical (e.g. David Kopel) claim he is disputing the principle of judicial review.  Or distorting the notorious 1905 Lochner v. New York decision (which they actually love).  
Actually Obama was quite careful.  Lochner is a symbol of the line of Supreme Court cases that overturned economic regulations like child labor laws.  That era ended in 1935 with A.L.A. Schechter Poultry Corp. v. U.S. (1935).  I think he is correct that to overturn the individual mandate on the grounds that it is an interference with liberty  or beyond the reach of the commerce clause would in fact bring us back to the pre-1935 era.  
I think the President is careful in his remarks - affirming that we should not go back to the Lochner era, and that the court should defer to Congress, which indeed passed the ACA by a "strong majority" in the Senate (they had to overcome the filibuster abusers) and by a simple majority in the House.
Judge for yourself.
We are all constitutional actors: citizens, elected members of the executive branch, legislators, and judges.  We have - almost uniquely - given judges the last word in interpreting the constitution.  But that does not mean we have taken away the voices of legislators, presidents, governors, or citizens.  What we do ask is a decent respect for the opinions of others who respectfully disagree with us.  - gwc

Monday, April 2, 2012

Employment Outcomes II: What We Know About School-Funded Temporary “Bridge” Positions At First-Tier Law Schools =The Faculty Lounge

The Faculty Lounge: Employment Outcomes II: What We Know About School-Funded Temporary “Bridge” Positions At First-Tier Law Schools:

Bernard Burk (above) takes a look at  the boost that law schools give to their grads employment rates by giving them post-graduate fellowships or stipends.  Because those are counted in the US News 9 month post-grad employment rates, it is a case of how true numbers can mislead, as Brian Tamanaha puts it.  
One of the consequences of the student debt burden is that the consequences of not having a job as a lawyer are great.  Schools do all they can to help.  Many students work for modestly paid fellowships after graduation.  That saves students from blank spaces on their resumes and gives them useful experience.  But they can't pay any loans on these modest stipends.  It also helps the school report a better number for the US News totem pole - which highlights employment rate 9 months after graduation.  Brian Tamanaha recently suggested that such jobs should be excluded from the 9 month reported employment rate.  I agree with that suggestion
When I graduated from law school I didn't know what I wanted to do, so while waiting for bar exam results I worked for a few months loading trucks at a big warehouse where friends of mine were left-wing union activists.  Frankly, nothing new for me.  I had grown up on tales of On the Irish Waterfront of Brooklyn, riding home from high school on the LIRR with my grandfather who worked on the President Street piers.  I had long gone to morning shape-ups for warehouse jobs during breaks.  The point is that I didn't need any money!  Because Rutgers Law School had cost me $1,000 for all three years! 

When I got my "first job" - as a Business Rep at Actors Equity - reviewing contracts and handling grievance arbitrations (which did not require a JD) I made $13,500 - six times a full year's tuition at Boston College Law School!  Today that would take $250,000!
So is this all the fault of the Republicans?  NO.  Because Republicans like Nelson Rockefeller built the New York State University system!  It is the result of the politics of resentment which gained enormous fuel from the southern strategy of the Nixon years.  That campaign solidified the transformation of the Republican Party into the party of white male resentment, hostile to government spending on the social programs of the `War on Poverty'.  The hostility to such government spending became a general anti-tax philosophy which steadily restricted support for public universities, helping to drive the inflation of college tuition. - GWC

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Sunday, April 1, 2012

Christie's legislation drawn from ALEC - Conservative Think Tank

ALEC – American Legislative Exchange Council
The think tank's banner reads`Limited Government Free Markets Federalism'
The "model legislation" idea is an old one.  With 50 semi-sovereign states consistency can be hard to come by.  The Uniform Laws Commission concentrates on well drafted, non-partisan bills.  It has produced things like the Uniform Commercial Code which is almost universally adopted.  The American Law Institute's Model Penal Code was very influential.  But there is another model - the partisan bill drafters of ALEC - the conservative American Legislative Exchange Council.  It has huge and quiet influence.  This comprehensive report by the Newark Star ledger demonstrates that their model bills have been widely relied upon by the Christie administration and Republican legislators in New Jersey in their efforts to weaken public schools and teachers unions, while advancing private groups like charter schools.  Despite weak denials by legislators and the governor's office, thee article is m: New Jersey Legislators are relying heavily on the group.  Not surprising since the governor recently denounced the official Office of Legislative Services as a partisan pro-Democratic group! - GWC
Some of Christie's biggest bills match model legislation from D.C. group called ALEC |

The American Legislative Exchange Council, a little-known conservative group headquartered in Washington, D.C., and funded by some of the biggest corporations in the United States — most with a business interest in state legislation.ALEC has quietly made its mark on the political landscape by providing state governments with mock-up bills that academic and political experts say are, for the most part, tailored to fit a conservative agenda. In recent years, states — particularly those with new Republican governors and legislatures — have been flooded with ALEC’s model bills. Nearly 1,000 of them are introduced every year, and roughly one-fifth of those become law, according to ALEC’s own count. ALEC’s bills are especially attractive because they are written so they can virtually be copied and pasted onto legislative proposals across the land.

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