Saturday, January 31, 2015

Obam Tax proposalsMore Progressive than they may appearOff the Charts Blog | Center on Budget and Policy Priorities | New Obama Tax Proposals Are More Progressive Than They May Appear

Off the Charts Blog | Center on Budget and Policy Priorities | New Obama Tax Proposals Are More Progressive Than They May Appear
by Robert Greenstein
The President’s new tax proposals would raise revenues from high-income and wealthy filers and devote much of the savings to other tax proposals that would benefit low- and moderate-income filers. Estimates from the Urban-Brookings Tax Policy Center (TPC) show that the President’s proposals are quite progressive, but some readers areinterpreting those estimates as meaning that low- and middle-income families get only modest benefits. There are two main reasons why that’s not the case:
1. For technical reasons, the TPC estimates classify as “middle-income” some affluent filers who would pay significantly higher taxes under the plan. This lowers the plan’s average gain for middle-class filers.
The estimates don’t count unrealized capital gains when measuring families’ incomes and ranking families on the income scale. So, affluent people who have moderate incomes other than unrealized capital gains but very large amounts of unrealized capital gains income show up in TPC’s tables in the middle of the income distribution.
That’s why the President’s proposal to tax unrealized capital gains after individuals die — a sound proposal that would affect only wealthy filers with large amounts of unrealized gains — appears in the TPC tables to hit a small number of middle-income families quite substantially.
For example, TPC’s tables show a tiny share of filers in the middle fifth of the income scale facing tax increases averaging almost $64,000 from the proposal. To face that amount of tax, such filers likely have average capital gains of more than $400,000. And if a filer’s capital gain totaled $400,000, the total value of his assets would likely exceed this amount substantially and likely be in the millions of dollars. If the capital gain were included in the filer’s income in the year in which the filer owed taxes on it under the President’s plan, the filer would likely be in the highest-income 1 or 2 percent.
By classifying these filers as middle-income, the TPC estimates essentially count the taxes they would pay under the proposal without counting as income the gains that give rise to those taxes. There are technical reasons underlying TPC’s approach. One approach that addresses this issues would be to count unrealized capital gains as income in the year in which they occur — that is, as the assets appreciate in value. But doing so is very difficult technically. A Treasury analysis of the President’s proposal took a different approach, by counting filers’ unrealized capital gains as part of their income in the year these gains would be taxed. It found that 99 percent of the new revenues would come from the top 1 percent of filers.
A related issue is that the TPC estimates assume the President’s proposal is fully phased in in 2016. This is informative because it shows the proposal’s ultimate impact. It means, however, that the estimates show more “middle-income” filers with large unrealized capital gains facing a tax increase than actually would in 2016. That reduces the average gain from the President’s plan for the middle class as a whole. It would take a number of years for the proposal to affect as many filers as the TPC tables show, because unrealized capital gains would be taxed only upon the death of the second spouse.
2. The TPC estimates don’t show the impact of the President’s proposal to make permanent the American Opportunity Tax Credit (AOTC) to help middle- and lower-income families pay for college. The AOTC is slated to expire at the end of 2017 and be replaced by the much smaller, non-refundable Hope Credit. Making the AOTC permanentwould make a large difference for many middle- and low-income families, providing thousands of dollars more in aid toward college affordability. TPC’s distribution tables don’t show the benefit of making the AOTC permanent because they are for 2016, before the AOTC is slated to expire.
In short, the President’s tax proposals do substantially more for low- and middle-income people than a cursory examination of the TPC tables might suggest. (It should be noted that the TPC tables, themselves, show more significant gains for middle-income families with children.) Moreover, some of the revenues that these proposals would raise would go to investments in improving child care and access to community colleges. Those investments aren’t tax proposals so the TPC distribution tables appropriately don’t reflect them, but they, too, would significantly help middle- and low-income families

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Shen Kui's Three Questions // Chinese Law Prof Blog

Prof. Shen Kui's Three Questions: Chinese Law Prof Blog:
Just when you start getting depressed about the way things are going in China, along comes Shen Kui (沈岿), an associate professor and vice dean at Peking University Law School, to show that at least some of China's thinking people are not going to take the government's policy of intellectual anesthesia in higher education lying down.
On Jan. 30, Minister of Education Yuan Guiren (袁贵仁) spoke at a conference on ideological and propaganda work in higher education, declaring that it was necessary "to strengthen control over the use of original-edition [i.e., not processed through some Party-controlled mechanism] Western materials. We must by no means allow materials that propagate Western values into our classrooms; it is absolutely forbidden for all kinds of speech that attacks and slanders the Party's leadership and blackens socialism to appear in university classrooms; it is absolutely forbidden to have all kinds of speech that violates the Constitution and the law spread in university classrooms; it is absolutely forbidden for teachers to complain and vent in the classroom and to transmit all kinds of harmful moods to students." (加强对西方原版教材的使用管理,绝不能让传播西方价值观念的教材进入我们的课堂;决不允许各种攻击诽谤党的领导、抹黑社会主义的言论在大学课堂出现;决不允许各种违反宪法和法律的言论在大学课堂蔓延;决不允许教师在课堂上发牢骚、泄怨气,把各种不良情绪传导给学生。)
In response, Prof. Shen posed three questions. The first is especially subversive, since it reminds us of the obvious and exposes the whole anti-Western-values campaign for the ridiculous charade that it is:
How do we distinguish "Western values" from "Chinese values"? As everyone knows, the specter of Communism that hovered over Europe almost two centuries ago, after crossing mountains and seas to get to China, helped bring about the birth of the Chinese Communist Party; the Marxism that our current Constitution stipulates we must uphold, and the education in internationalism, communism, dialectical materialism, and historical materialism that the current Constitution stipulates we must undertake, are all from the West and have influenced China. There are countless examples of Western learning traveling east. Let me ask Minister Yuan, would it be possible for you to clearly delineate the line between "Western values" from "Chinese values"? (如何区分“西方价值”和“中国价值”?众所周知,近两个世纪前游荡在欧洲的共产主义幽灵“跨洋过海”来到中国后,才促成中国共产党的诞生;我国现行宪法规定必须坚持的马克思主义,必须进行的国际主义、共产主义、辩证唯物主义和历史唯物主义等的教育,也是源于西方,影响中国的。西学东渐的例子数不胜数,请教袁部长,是否可以请您清晰划出“西方价值”和“中国价值”的分界线?)
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Is China’s Internet Becoming an Intranet? | ChinaFile

A few months ago my friends in China told me they can't access their gmail accounts, so please use their university addresses.  For a couple of years they cannot reach my blogs which are all on the Google blogspot platform. So they can't reach my research or teaching materials.  This is a serious obstacle to free academic exchange.- gwc
Is China’s Internet Becoming an Intranet? | ChinaFile:
Why now? We have seen a rapid ramping up of censorship controls in China since last June. This is just a further, logical step. The authorities are hellbent on establishing cyber sovereignty in China. If you look at what has taken place since last summer it is quite astounding:
Google got blocked completely last June for the first time. Gmail got blocked completely for the first time in December. Since October, the authorities have launched attacks on Yahoo, Google, Microsoft and Apple, putting sensitive user information at risk and in turn making Chinese netizens suspicious of using foreign services. The authorities have severely disrupted or outright blocked many foreign content delivery networks (CDNs or cloud services) including Amazon S3, Akamai and EdgeCast. This blocking has caused much collateral damage, including, but not limited to, taking HSBC’s corporate banking portal offline which made it impossible for foreign and domestic firms to move money into and out of China and blocking access to the download link for iTunes, just after Apple released the newest iPhone. We can now clearly say that censorship in China is a business issue as well as an internet freedom issue.
This ramping up of censorship and malicious attacks drive internet users to adopt circumvention tools. By blocking these tools, the authorities are leaving people with fewer options and are forcing most to give up on circumvention and switch to domestic services. If they can convince more internet users to use Chinese services - which they can readily censor and easily snoop on - then they have taken one further step towards cyber sovereignty. They won’t need to ask Yahoo to hand over user information again. They won’t need to ask Apple to remove apps from their app store again. They won’t need to ask LinkedIn to self-censor negative China content on its platform again. Why? Because nobody inside of China will be using any of these services anymore and/or be able to access them.

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Friday, January 30, 2015

Supreme People’s Court: new regulations on legal representation in death penalty review cases | Supreme People's Court Monitor

For many years - despite authority to do so -the Chinese Supreme Peoples Court rarely exercised its right of review.  But in 2007 that changed, with the court announcing it would review all cases under the maxim "kill few, kill carefully".  In 2009 the court announced that it intended to reduce executions further and that its rate of reversal on review had reached 10 - 15%.  Review has grown more systematic since then. Susan Finder reports on the latest news from the high court. - gwc
Supreme People’s Court: new regulations on legal representation in death penalty review cases | Supreme People's Court Monitor
by Susan Finder
The Supreme People’s Court today issued regulations on legal representation in death penalty cases, Measures for Considering the Views of Defense Lawyers in Death Penalty Review Cases (最高人民法院关于办理死刑复核案件听取辩护律师意见的办法).  This blog previously flagged that the Court was drafting them and that they were meant to be issued by the end of the year.  They will become effective on February 1.  They  were accompanied by a brief question and answer session with a responsible person from the Court’s #1 Criminal Division.  The regulations permit defense lawyers to review the defendant’s file, provide additional evidence and have a hearing with the judges handling the case, although not a formal court hearing. The Court has created a room for lawyers to use to review death penalty review materials. The transcript of the hearing (as signed off by the defense lawyer) is to be included in the case file.
The regulations set out the telephone numbers of the Court’s criminal divisions, which review death penalty cases.  This blogpost translated a chart drafted by the Chinese magazine Southern Weekend setting out jurisdiction of the various divisions.
This is an important step forward in protecting the rights of criminal defendants.
Additional analysis to follow.

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Thursday, January 29, 2015

Limited License Legal Service Technicians - A New Frontier for the Rules of Professional Conduct: Legal Ethics forum

Legal Ethics Forum: A New Frontier for the Rules of Professional Conduct: Limited License Legal Technicians
by Andrew Perlman  - Suffolk School of Law
On January 8, 2015, the Washington State Supreme Court adopted special rules of professional conduct to govern limited license legal technicians (LLLTs).  The LLLT rules are closely analogous to the rules that govern lawyers, so there is nothing terribly new here substantively.  But the very existence of professional conduct rules for a new class of legal professionals nicely illustrates why our traditional focus on the "law governing lawyers" has become too narrow.  Our field might be more accurately described now as the "law of legal services."   

Gillers: "Albany Is a Cesspool...How to Clean It Up" // Legal Ethics Forum

Stephen Gillers (NYU Law) has a piece on the Sheldon Silver case in The Nation.  I have comments on Legal Ethics Forum on the referral fee/fee division issues presented.  Gillers points to ethics opinions that say a "mere" referral relationship is not enough to warrant the "of counsel" status that makes one part of the firm.   There are a lot of former judge baubles floating around the letterhead of law firms in New York and elsewhere. That is a disciplinary concern that would not be a focus of attention - were it not that the U.S. Attorney argues that the fees were a way of laundering a bribe.

Part time legislators with ongoing law practices and businesses are the norm in state government. The prosecution will have to prove trading favors for cash.  I find the U.S. Attorney's complaint long on rhetoric, short on facts in that regard.  In the Buckley v. Valeo/Citizens United era I am reminded of William Boss Tweed's concept of "honest graft".  - gwc
Legal Ethics Forum: "Albany Is a Cesspool. Here’s How to Clean It Up"
"Our own Stephen Gillers offers thoughts, including discussion of legal ethics issues, at The Nation. Excerpt:
 An obscure legal ethics rule will have a leading role in Silver’s trial. The rule allows one lawyer to share a fee with another lawyer even if the first lawyer does no work. The rule requires written disclosures to the client, and it requires that the first lawyer accept responsibility for the other lawyer’s work in writing. Silver’s likely defense—already signaled—will be that it is both legal and ethical for a lawyer who does no work to share fees. Or if he violated the ethics rule by failing to do the required paperwork, he should be professionally disciplined, not federally prosecuted. The thirty-five-page criminal complaint has the government’s response. It alleges that Silver used the ethics rule as a ruse to launder payments that were, in truth, in exchange for political favors, not client referrals. The complaint’s five counts charge that Silver did political favors to two real estate developers and a doctor, that in exchange for the favors the developers hired one law firm and the doctor steered patients to another law firm and that Silver got a cut of the fees that each firm earned from these clients. Of course, political favors are not crimes. They are what politicians do. But if they do them in exchange for money, it’s theft of the honest services they owe constituents and extortion, which are the crimes, along with conspiracy, leveled against Silver."

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Wednesday, January 28, 2015

Florida Bar Ethics Committee issues opinion on whether an attorney can advise clients to "clean up" a social media page before starting litigation //Professional Responsibility Blog

Professional Responsibility Blog: Florida Bar Ethics Committee issues opinion on whether an attorney can advise clients to "clean up" a social media page before starting litigation
 "Legal Ethics in Motion is reporting that the Florida Bar’s Professional Ethics Committee has just issued Proposed Advisory Opinion 14-1, which discusses the ethical obligations when advising a client to “clean up” the client’s social media pages before litigation is filed.  The opinion is only three pages long and you can read it here.  
Agreeing with an opinion by the New York County Lawyers Association published in 2013, the opinion concludes as follows:
In summary, a lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved. Posted by Professor Alberto Bernabe

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Some Soul-Searching after the Occupy Central Movement | Human Rights in China 中国人权 | HRIC

A leading Hong Kong law professor and political observer explains that Hong Kong's growth has lagged.  Seventeen years ago it was well above Singapore in per capita gdp.  Now it lags sharply.  Its growth lags behind China's too.  But only greater, not lesser democracy, can move Hong Kong forward.  He concludes:

The Occupy Central Movement has awakened the political awareness of the people—the awareness that there is a democratic deficit in Hong Kong’s governance structure, that the deficit is fatal to Hong Kong’s future development, and that there is an urgency to fix it. The OCM also confirms the democratic determination of the people and the centrality of democracy as a practice in Hong Kong politics.
Some Soul-Searching after the Occupy Central Movement | Human Rights in China 中国人权 | HRIC

by Fu Hualing (傅华伶) 
University of Hong Kong - Faculty of Law

Maintaining Hong Kong’s economic prosperity and political stability has been a thorny issue for Beijing. Seen from Beijing, Hong Kong has, since 1997, become not only an economic burden but also a political liability. The prevailing perception on the mainland is that Hong Kong’s continuous economic stagnation necessitates policy support from the central government and restriction of competition from other Chinese cities, in order to pump up the Hong Kong economy. 
Politically, Hong Kong’s persistent demand for democratization and its direct and indirect influence on the mainland may be posing a challenge to the mainland political system. Hong Kong’s resilient struggle for autonomy is seen as presenting similar challenges already apparent in China’s peripheries: terrorist attacks in Xinjiang, self-immolations in Tibet, and political agitation in Taiwan. 

The worry in Beijing is that Hong Kong may slip away from Beijing’s grip, and that a democratized Hong Kong may cause a chain reaction in other parts of the mainland. Indeed, the more conservative wing of the CPC may prefer to roll back China’s commitment to gradual democratization in Hong Kong, if at all possible, and would be happy to see Hong Kong vote the limited reform package. It is in this context that we understand the difficult relations between Hong Kong and the central government authorities.
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Common sense or crackpot wisdom? // The National Debt

Everyone knows, common sense tells us that Obama's policies will drive us to hell in a tsunami of debt, debasing the dollar and driving up inflation.
The problem is that common sense is what you think before you have thought, investigated, studied, or observed. - gwc

Lindsey Graham: If Gay Marriage Is A Constitutional Right, Why Not Polygamy?

Sen. Lindsey Graham  (R - S.C.)
Presidential hopeful
Why not, indeed?  I watched Big Love.  Isn't there a right of free association? - gwc
Lindsey Graham: If Gay Marriage Is A Constitutional Right, Why Not Polygamy?
by Sahil Kapur

"Sen. Lindsey Graham (R-SC) asked Attorney General nominee Loretta Lynch to explain Wednesday at her confirmation hearing why polygamy wouldn't also become a constitutional right if if the Supreme Court decided that same-sex marriage was protected by the Constitution.
 "If the Supreme Court rules that same-sex marriage bans are unconstitutional — that it violates the Constitution to try to limit marriage between a man and a woman, that's clearly the law of the land unless there's a constitutional amendment to change it — what legal rationale would be in play that would prohibit polygamy?" Graham asked. "What's the legal difference between a state ban on same-sex marriage being unconstitutional but a ban on polygamy being constitutional?"

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Prosecuting Prosecutors for Perjury? 9th Circuit Weighs In Concurring Opinions

Concurring Opinions - The Law, the Universe, and Everything:

Prosecute Prosecutos for Perjury?  9th Circuit Comes Down Hard
by Prof. Ronald K.L. Collins
"Writing in the New York Observer, Sidney Powell began his column this way: “What will it take to produce honest and ethical conduct from our state and federal prosecutors? The Ninth Circuit has a suggestion. Perhaps a perjury prosecution will do it. In fact, that is exactly what should happen when prosecutors affirmatively lie. This case, Baca v. Adams, involves a clear violation of the Supreme Court’s decision in Napue, which holds that prosecutors cannot put on perjured testimony, much less lie themselves. Unfortunately, as I’ve documented elsewhere, it happens far too often, when it should never happen at all.”
I urge readers to take a look at Mr. Powell’s column, which is both informative and powerful. Even more so is the video of the exchange between Judges Alex Kozinski, Kim McLane Wardlaw, William Fletcher and  California Supervising Deputy Attorney General Kevin Vienna. Early on in his opening remarks (16 minutes into video), Mr, Vienna stated: “A number of things happened that should have not happened, and we’re not here to defend them.” But he defend them he did, albeit guardedly.
 It was downhill from there. Things got even worse when Judge Kozinski and his colleagues weighed on the matter of prosecutorial perjury. The clip is too extraordinary to quote — you really must see it. So, click on the video and watch how Mr. Vienna attempted to make the case for the State as the Judges dug deeper into the issue of proctorial perjury. → Over at Hercules and the Umpire, Judge Richard G. Kopf adds a few comments.
 UPDATE: This from John Roemer writing in the Daily Journal (Jan. 27, 2015): “Misconduct by Riverside County prosecutors has forced the reversal of a 1998 murder­for­hire conviction in a case that raised the ire of Circuit Judge Alex Kozinski and led to his demand that Attorney General Kamala D. Harris fix the situation.” “Riverside County’s new district attorney, Mike Hestrin, said Monday in a media statement, ‘While we do not concede the prosecutorial misconduct was intentional or malicious … I am requesting that Mr. Baca’s murder case be returned to Riverside County to allow a retrial unmarred by even the appearance of impropriety or unfairness.'”"

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Tuesday, January 27, 2015

The Supreme Court Meets the Real World - Room for Debate -

Akhil Reed Amar (Yale), Melissa Murray (UCBerkeley, and Ilya Shapiro (CatoInstitute) debate the issues.
The Supreme Court Meets the Real World - Room for Debate -
The justices will know that ruling against the Affordable Care Act would negate heath insurance for millions of people, and even if they reject constitutional protection for same-sex marriage thousands of such marriages have already occurred.
Should real-world effects influence the thinking of Supreme Court justices in reaching decisions?

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Monday, January 26, 2015

Budget Office Slashes Estimated Cost of Health Coverage -

If you hate paying taxes that benefit somebody else this is bad news not good news.  (If you earn over 400% of the federal poverty line you are not a beneficiary of an Obamacare insurance subsidy.)  But I think it is good news.  Three million have gained health coverage through Medicaid. though half the states (almost all with GOP governors) refuse federal aid to expand Medicaid (for the undeserving sick and poor, I guess),  And 7 million have bought health insurance from the Obamacare exchanges.  Three-quarters of them qualified for subsidies.

Almost everyone benefits from the ACA in some way.  Birth control is free.  Cancer screening  colonoscopies have no co-pay.  Same for the flu and pneumonia vaccines.  Your kids can stay on your policy until age 26.  You can't be denied coverage due to ore-existing conditions.  That means you can leave your job or get laid off and still find affordable coverage.
The ACA has driven health care costs down.  Of course it's not free.  And there are taxes.  We'll pay some of them - because we still have high income.  But I would rather live in a society that takes care of people than one that says "tough luck".  You are on your own.  - gwc
Budget Office Slashes Estimated Cost of Health Coverage -
by Robert Pear
The subsidies will cost the government less than originally expected, but are still substantial, the budget office said. “Subsidies in the [Affordable Care Act insurance] exchanges are projected to average about $5,000 per subsidized enrollee from 2016 through 2018 and to reach almost $8,000 in 2025,” Congressional Budget Office (CBO) Director Douglas Elmendorf said.
All told, the budget office said, the coverage provisions of the health care law will have a gross cost of nearly $2 trillion over the next 10 years, partly offset by $643 billion in new revenues and penalty payments. The law will reduce the number of uninsured by 27 million people, it said, but 31 million people will still be uninsured in 2025, the end of the projection period. [Most of them immigrants ineligible for subsidies.]
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Why the Supreme People’s Court is harnessing the NGO “genie” | Supreme People's Court Monitor

Why the Supreme People’s Court is harnessing the NGO “genie” | Supreme People's Court Monitor:
by Susan Finder
 "Many China observers were surprised to learn that in early January, 2015, the Supreme People’s Court (Court) issued an interpretation on enabling civil society organizations to sue polluters on behalf of the public, when most commentators take the view that those organizations are controlled more tightly than before.  The Court issued it after years of work, analysis, and low numbers of environmental lawsuits (highlighted in my earlier blogpost Tianjin's Environmental Crisis and the Courts), particularly public interest ones. 
 This blogpost explains: what the Interpretation does; what its background is; why the Court is enabling environmental NGOs to file suit; and An assessment of its implications. This blogpost should be read with NRDC Switchboard Barbara Finamore’s blogpost, How China’s Top Court is Encouraging More Lawsuits Against Polluters.

What the interpretation does

The interpretation, entitled “Interpretation on Several Issues Regarding the Application of Law in Public Interest Environmental Civil Litigation (Interpretation) (Chinese original found here and translated here). The Interpretation (like many other Court interpretations) combines court procedural rules with additional rules on liability and other legal standards to put in place a framework for Chinese environmental NGOs to file public interest environmental cases against polluters. It supplements Article 58 of the Environmental Protection Law (amended in 2014) and the 2012 Civil Procedure Law, because neither law had sufficient legal rules to guide local NGOs in bringing and local courts in accepting, hearing, and deciding these lawsuits.

See also: Notice on Implementing the System for Civil Environmental Public-Interest Litigation, January 6, 2015 (SPC, Ministry of civil Affairs, Ministry of Environmental Protection)

The highlights of the Interpretation:

* Broad definition of environmental NGOs that can file suit. At the press conference announcing the Interpretation, the Court spokesman said that a broad definition was adopted so that it would be flexible enough to accommodate additional types of approved non-profit groups. This may be have been done to accommodate contemplated reforms to non-profit institutions;
* Provisions permitting an NGO to seek a court within a provincial boundary but outside the locality of the polluter to hear the case. Because local courts are locally funded, they are often reluctant to hear or decide cases that cause result in judgments against companies that are often substantial contributors to local tax bases. An NGO is also allowed to sue polluters outside of its own locality. This was also highlighted in the same press conference.
* The Interpretation enables injured private parties to piggyback on the NGO’s case, also highlighted by the Court spokesman.
* Several provisions to require court oversight when NGO settles the lawsuit, to guard against intimidation by the polluter, which may be allied with local government.
* The damages the polluter pays are paid into a fund, which is used to compensate those harmed.
* If the defendant polluter refuses to provide information about pollution discharge, the court can presume that the plaintiff’s assertions have been established.
* Several provisions are designed to reduce the costs of litigation to the NGO.
The litigation must not be profit making for the NGO.

Charles Blow: At Yale, the Police Detained My Son -

New York Times columnist Charles Blow
To every cop who turned his back on Mayor DeBlasio this is the answer.  This is why the fathers of black boys warn them about the police. - gwc
Charles Blow: At Yale, the Police Detained My Son -

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Sunday, January 25, 2015

The ACA provision that should kill King v. Burwell | xpostfactoid

The ACA provision that should kill King, updated | xpostfactoid:
by Andrew Sprung

The ACA provision discussed below, which directs the federal as well as state exchanges to report to the Treasury tax credits provided to ACA private plan buyers, is treated in full in the United States of America's Brief for Respondents.   Submitted by the Solicitor General, joined by the Solicitor of Labor, and the General Counsel of the Treasury Department and the Department of Health and Human Services, the government brief emphasizes the overall design of the Affordable Care Act, its objectives, and the care subsidies crucial role in making the mandated insurance reforms financially viable.  Remember that the key structure - mandatory coverage - requires that premiums not only be affordable but that they be sufficient for insurance companies to be able to cover the greatly increased number of insured persons - and to achieve the broader coverage and lower deductibles and co-pays afforded by the ACA's Silver and Platinum policies, as well as mandated coverages such as birth control, preventive screenings, etc. - gwc

 Ever since a three-judge panel of the D.C. Circuit Court found in Halbig v. Burwell that the ACA only authorizes subsidies to be paid for health insurance bought in state-run exchanges, not in state exchanges set up by the federal government, progressive reporters have been ransacking the record to  prove what they always knew: that the law's creators never intended to exclude federally run exchanges from the subsidy regime.  Today, Greg Sargent and Jonathan Cohn both published compelling circumstantial evidence to that effect. It seems to me, though, that such circumstantial evidence should be unnecessary. The ACA includes a provision that ought to settle the issue -- on that the majority in Halbig egregiously misread. Health law scholar Timothy Jost highlighted the dispositive provision back in September 2011, two months after the IRS issued a rule spelling out that subsidies would be available through the federal exchange (at which point the brains behind the Halbig suit, Michael Cannon and Jonathan Adler, immediately began arguing in print that the IRS rule contradicted the ACA's text). With reference to the drafting error stipulating only that subsidies be credited through an exchange "established by a state," Jost asserted:
we do not need to rely on the courts to correct this error. Congress corrected it itself. Four days after Congress passed the Patient Protection and Affordable Care Act, it enacted the Health Care and Education Reconciliation Act of 2010. Section 1004 of HCERA amended section 36B(f) of the IRC to impose on exchanges established under section 1311(f)(3)—that is, state exchanges—and under section 1321(c)—that is federal exchanges, the obligation to report to the IRS and to the taxpayer information regarding tax credits provided to individuals through the exchange. In this later-adopted legislation amending the earlier-adopted ACA, Congress demonstrated its understanding that federal exchanges would administer premium tax credits. 
In a subsequent post, Jost noted, "As a later-adopted statute, HCERA would take precedence over PPACA if there were a contradiction."
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Fr. Richard McBrien, theologian, has died | National Catholic Reporter

Fr. Richard McBrien, Catholic theologian
Richard McBrien - the Notre Dame voice of  progressive Vatican II Catholicism in America has died.  A longtime columnist for National Catholic Reporter, he found diocesan paper after paper dropping his essays as the pinch of John Paul II and Benedict XVI was felt.
Rather than celebrate as heroic the U.S. Conference of Catholic Bishops adherence to the papal bar on artificial contraception, the embrace of mandatory priestly celibacy, and renunciation of female ordination Fr. McBrien never trimmed his conscience to fit current Vatican fashion.
We have lost a voice and must hope that Pope Francis's heart and Jesuit savvy last long enough to turn the doctrinal tide that has for fifty years been running in favor of a crabbed and cramped Catholicism. - gwc
Fr. Richard McBrien, theologian, has died | National Catholic Reporter:
"Fr. Richard McBrien, who as a scholar brought distinction to a university theology department and who as an author and often-interviewed popular expert explained the Catholic church to the wider world, died early Sunday morning. He was 78. McBrien had been seriously ill for several years and had moved recently from South Bend, Ind., to his native Connecticut. 

It would be difficult to find a figure comparable in making understandable to a broad public the basic beliefs and traditions of the Roman Catholic church. For more than three decades, he was the star of the theology faculty at the University of Notre Dame and the go-to voice on all matters Catholic in the popular press. 

His books, particularly Catholicism, Lives of the Popes and Lives of the Saints, were staples of libraries, Catholic and non-Catholic alike. At his peak in the 1980s and ’90s, it is arguable that McBrien had a higher media profile than anyone in the Catholic church other than Pope John Paul II. He was the ideal interview: knowledgeable, able to express complex ideas in digestible sound bites, and utterly unafraid of controversy.***
“I don’t hold things back,” McBrien said in a 1990 profile by the Chicago Tribune, adding in a rare moment of understatement: “I’m outspoken.”
Unabashedly on the progressive side of most Catholic debates, McBrien advocated the ordination of women priests, an end to mandatory celibacy for priests, moral approval of artificial birth control, and decentralization of power in the church. In so doing, he helped to define the battle lines within Catholicism over the legacy of the Second Vatican Council (1962-65).
He was a former president of the Catholic Theological Society of America and former chair of the theology department at the University of Notre Dame. To fans both inside and outside the theological guild, McBrien was a double icon. He lifted the status of Catholic theology, and American Catholic theology in particular, by his media visibility and literary accomplishment. He also cheered the liberal wing of the church by lending intellectual heft to its reading of Vatican II.

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Saturday, January 24, 2015

China's Supreme Prosecutor's Office - Guiding Cases China Law Translate | 高检关于案例指导工作的规定

China Law Translate | 高检关于案例指导工作的规定:
China's central government prosecutors struggle to find means to more effectively manage their sprawling public safety and security domain.  Taking a page from the Supreme Peoples Court the Supreme People''s Procuratorate they have embraced the "guiding case" model.Its 2010 guidance explains:
Article 15: After guiding cases are released, all levels of people's procuratorate may consult them in implementation.
Article 16: Where the procurator undertaking case handling feels that a guiding cases should not be applied when handling a case of the same type or disposing of a problem of the same type, he shall submit an opinion in writing and report the situation to the chief procurator or procuratorial committee for a decision.
Set Five summarizes three cases of robbery and homicide.

Thanks for all this to China Law Translate

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Court Denies Disqualification Motion- sees issues clearly //Legal Ethics Forum

Legal Ethics Forum: Court denies DQ motion; sees the issues clearly
The New York Supreme Court (New York County) denied a DQ motion filed after a joint defense representation fell apart. The joint rep letter was well written and contained lots of warnings and a good explanation of the consequences of a falling out. The court realized that granting the motion would effectively prevent clients from safely entering into joint defense agreements even when it helped the clients. All in all, a job well done by the trial court. Bonus: the New York court cited California's Zador v. Kwan. (h/t: Law Firm Risk Management Blog)
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Friday, January 23, 2015

The GOP `No Go Zone' - GOPlifer

With Steve King and Citizen United's Iowa Freedom Summit upon us it will be interesting to measure the GOP stand-up performers by how they approach the GOP No Go Zone.  Jeb Bush and Mitt Romney found other places to be but all the other usual suspects have been rounded up.  - gwc
Four inescapable realities - GOPlifer
by Chris Ladd

It is possible to win an election in a way that makes it impossible to govern. Republicans have been doing this for years, at mounting cost. The crux of the problem is an electoral appeal based almost entirely on paranoia and premised on denial of certain basic, observable realities.
Regardless what happens in any future election, Republicans will not regain the capacity to form intelligent, relevant public policy until we can grapple with four realities. Each item on this list is measurable, provable and broadly regarded as obvious. Failure to acknowledge these four truths means being as categorically, empirically wrong as it’s possible to be in the otherwise mushy, gray realm of politics:
1) Climate change is real and it is caused primarily by human activity.
2) Human beings evolved from simpler life forms, and the same evolutionary process shapes all living systems.
3) Abortion is a complex issue because it involves two legitimate liberty interests in conflict with one another.
4) Race still skews economic outcomes in the United States.
With great care and a willingness to avoid exposure to facts, an adult can carry on a reasonably competent existence while living in denial of these four realities. However, no one incapable of recognizing these obvious truths is qualified to serve in a public leadership capacity of any significance. Like a poorly aimed weapon, any legislation or executive action crafted in defiance of these truths will, at best, yield unnecessary collateral damage. In many cases, it will reap calamity.
Unfortunately, there is almost no corner of America in which a Republican can survive a primary election while openly acknowledging all four of these truths. As a consequence, however mistaken a Democratic policy may be, it is likely to be less damaging at the national level than a Republican alternative for as long as this condition persists (it’s worth noting, however, that Democrats have their own issues with #3).
None of those four realities dictate a particular policy response. Acknowledging these irrefutable realities would not force Republicans to abandon market economics, embrace abortion or violate any of the party’s traditional tenets. Some of these truths might be politically uncomfortable, but it is possible to devise policy responses to each of them that are entirely in line with traditional Republican agendas.  The Republican Party stubbornly refuses to acknowledge these realities because the party has developed over the past twenty years a purpose completely divorced from effective public administration.
A largely white, rural and Southern demographic bloc for whom the faster, freer world of global capitalism is a living nightmare has transformed the Republican Party into a bulwark against reality. Those who continue to look to religion not only to provide meaning, but to define their reality, are in a broad general state of panic that seems likely to continue until an older generation has seen their influence dissipate. They are determined to ensure that no government action of any kind, no matter how necessary for the protection of your interests or theirs, will in any way challenge the brittle, manufactured reality on which their mental security depends.
Republicans of a previous generation helped grant us this world. Republicans of this generation are determined to roll it back at all costs. If they must fail, they are content to see it all burn to the ground rather than confront a world of pluralism, accelerating change, and endless uncertainty.
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Thursday, January 22, 2015

PowerPoint Justice | The Marshall Project

Building on its 2012 decision in State v. Glassmann the Washington Supreme Court in State v. Walker reverses a murder conviction based on prejudicial power point slides used in summation.  A concurring opinion carefully analyses the prosecutor's missteps. The court reverses on grounds of plain error because the defense attorney failed to object. Another discussion of similar prosecutorial conduct is below. - gwc
PowerPoint Justice | The Marshall Project
by Ken Armstrong
"In Washington state earlier this month, in [State v. Herbin]  the Court of Appeals threw out a murder conviction based on shoddy work by the defense. But the court also took the prosecutor to task for something even stranger: a bad PowerPoint presentation.
The prosecutor had dressed up her closing argument to the jury with a series of slides, complete with “sound effects and animation,” the appellate court wrote. On one slide, footprints materialized across the bottom of the screen. Other slides exhibited “concentric rings of a target,” with each ring corresponding to an item of evidence; the defendant’s name, Sergey Fedoruk, was in the bull’s-eye. The prosecution’s final slide, the pièce de résistance, opened with a header that said “Murder 2.” Then, under the header, a single word flashed, in all capital letters, in 96-point red type:

h/t Legal Ethics Forum
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Will the Charges Against Sheldon Silver Hold Up?

Sheldon Silver, in custody
The Times reports today that the asbestos-related cancer physician at the center of the federal charges against New York Assembly speaker Sheldon Silver is Robert N. Taub.  Columbia University on Friday closed the mesothelioma center he has directed. Accepting the allegations in the complaint the U.S. could well persuade a jury that Taub bribed Silver by offering to refer potentially lucrative asbestos cancer cases to Silver's law firm- in anticipation of favorable action by Silver in his capacity as speaker.  But Silver was the U.S. target.  Taub was promised immunity in exchange for his cooperation.

The United States Attorney in New York has indicted State Assembly Speaker Sheldon Silver.  He is charged with depriving the people of the state of his honest services - i.e. using his official position for personal gain.  Federal jurisdiction is obtained under the wire fraud act 18 USC 1343 which former prosecutor, now Senior Judge Jed Rakoff once called "our stradivarius".

There are two sets of transactions addressed in the complaint (above) is that Silver received income from a law firm that handled certain real estate matters regarding which Silver did no work.  Those appear to be referral fees for tax appeal work he steered to attorney Jay Arthur Goldberg - not charged but named as a co-conspirator. Silver got 25% of the contingent fee, according to the Times report.

The other claim is that Taube - named as "Doctor 1" in the complaint  - referred asbestos product liability cases to Silver who was "of counsel" to Weitz Luxenberg - a leading firm in the field.  It alleges that Silver reciprocated by directing two grants of $250,000 to Taub's research program.

The Complaint refers to the income in both categories as "referral fees".  But it seems to me that though the characterization appears to fit the undisclosed real estate fees, it does not accurately describe Silver's income from Weitz Luxenberg.

Behind the Weitz Luxenberg fees according to the complaint are the demands of the physician who heads up the asbestos-related mesothelioma treatment program at the giant Columbia Presbyterian Medical Center.  "Doctor 1" reported to be Robert N. Taub, who serves as director of the Columbia University Mesothelioma Center.  He could steer his fatally ill patients and their families to lawyers but did not include among the beneficiaries of his referrals Weitz Luxenberg - leading practitioners in the field - because Weitz did not contribute to mesothelioma research projects.

In 2003  Doctor 1 began referring cases to Weitz.  He soon applied to Silver who was then associated with the Weitz firm.   Silver as Speaker controlled a discretionary health fund.  In 2005 Silver approved a $250,000 research gran to study the effects of release of asbestos dust in the 2001 World Trade Center catastrophe.  In 2007 a second $250,000 grant to the University was issued, allegedly at Silver's initiative.  No further grants were made, though Silver helped direct $25,000 in state funding to a non-profit on which a relative of Doctor 1 served.  Referrals to Silver's firm continued though diminished into 2010.
The New York Joint Appellate Rules Governing Professional Conduct of lawyers like ABA Model Rules, RPC 1.5 (c) (1) permits division of lawyers between lawyers "who are not associated in the same firm" only "in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation", and (2) the client agrees to the arrangement, including the share each lawyer will receive and the agreement is confirmed in writing".  The undisclosed real estate fee income apparently does not meet the RPC requirements.
But the personal injury contingent fees appear to be a different matter because Silver is a salaried lawyer "associated" as of counsel in the firm.  It is a commonplace for lawyers to divide fees within a firm giving substantial weight to the lawyer who introduced the source of business to the firm.  According to the complaint that appears to be the case here.
- gwc

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Christeson v. Roper - lawyer's conflict of interest merits reversal in death case


No. 14–6873. Decided January 20, 2015
 Petitioner Mark Christeson’s first federal habeas petition
was dismissed as untimely. Because his appointed
attorneys—who had missed the filing deadline—could not
be expected to argue that Christeson was entitled to the
equitable tolling of the statute of limitations, Christeson
requested substitute counsel who would not be laboring
under a conflict of interest. The District Court denied the
motion, and the Court of Appeals for the Eighth Circuit
summarily affirmed. In so doing, these courts contravened
our decision in Martel v. Clair, 565 U. S. ___ (2012).
Christeson’s petition for certiorari is therefore granted,
the judgment of the Eighth Circuit is reversed, and the
case is remanded for further proceedings. ***

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Tuesday, January 20, 2015

Report of the Commission on Inclusive Prosperity | Center for American Progress

Report of the Commission on Inclusive Prosperity
This is the economic philosophy behind President Obama's State of the Union speech. - gwc
Report of the Commission on Inclusive Prosperity | Center for American Progress
by Lawrence Summers and Ed Balls
"History tells us that societies succeed when the fruits of growth are broadly shared. Indeed, no society has ever succeeded without a large, prospering middle class that embraced the idea of progress. Today, the ability of free-market democracies to deliver widely shared increases in prosperity is in question as never before.
The primary challenge democracies face is neither military nor philosophical. 'Rather, for the first time since the Great Depression, many industrial democracies are failing to raise living standards and provide opportunities for social mobility to a large share of their people. Some of those countries that have produced economic growth have done so in a manner that has left most of their citizens no better off.
This is an economic problem that threatens to become a problem for the political systems of these nations—and for the idea of democracy itself. The citizens of industrial democracies continue to value their freedom and their opportunity to participate in the task of self-government. But they also count on their political systems to create circumstances in which they can use their talents and their labor to provide a decent standard of life for themselves and their families.
When democratic governments and market systems cannot deliver such prosperity to their citizens, the result is political alienation, a loss of social trust, and increasing conflict across the lines of race, class, and ethnicity. Inclusive prosperity nurtures tolerance, harmony, social generosity, optimism, and international cooperation. And these are essential for democracy itself."
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It's Looking More Like a BP Settlement Over Gulf Disaster - Bloomberg

It's Looking More Like a BP Settlement Over Gulf Disaster - Bloomberg
By Margaret Cronin Fisk and Laurel Brubaker Calkins Jan 20, 2015 

Last week’s ruling that BP Plc (BP/)’s Macondo well dumped less oil into the Gulf of Mexico than the U.S. government claimed may trigger a settlement before a decision on the amount it must pay after a trial set to begin this week. A federal judge determined on Jan. 15 that the penalty will be based on the size of the spill being 3.19 million barrels, about 25 percent less than estimated by the government. 
That ruling, which was followed by a 5.3 percent jump in BP shares, reduced the potential maximum pollution fines for the 2010 spill to $13.7 billion from $18 billion and increased the incentives for a settlement. “There’s a very good chance -- about 75 percent -- that they’ll settle,” said David Berg, a Houston trial attorney who has been following the litigation. 
Even if the case doesn’t settle before a trial verdict, BP probably won’t face a maximum fine against BP, Berg said. The range will likely be from $8 billion to $10 billion, he said. Even a fine of that size would be the largest civil penalty under the Clean Water Act, according to the Environmental Protection Agency. The current record is the $1 billion settlement Transocean Ltd. (RIG), which owned the Deepwater Horizon drilling rig that burned and sank in the Gulf spill, reached with the U.S. in 2013."

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Bobby Jindal, WTF? GOPLifer |

As I entered the law school yesterday Bobby Jindal was saying the usual stupid stuff about "political correctness", the dangers of "Sharia law", etc.  This is how you get the white racist vote in Louisiana, I guess.  - gwc
Bobby Jindal, WTF?  GOP Lifer
by Chris Ladd
"Why do smart Republicans say stupid things? It’s the central political question of our era and it demands an answer. In London Monday Bobby Jindal built an entire speech on the idiotic premise, already disavowed by Fox News, that European cities include sections specifically ceded to Islamic extremists. 
That isn’t even the dumbest thing he said. He repeated all the usual racist tropes about how Muslims fail to “disavow” violence, implying rather strongly and ignorantly that they do not. He also launched into a surprising diatribe about the mortal danger posed by immigrants who refuse to “assimilate.” 
There are only two credible explanations for this speech. Either Jindal is an idiot in the Michele Bachmann mold, or he is making a cynical, calculated career decision to abandon credibility in pursuit of power. 
 Let’s be absolutely clear – Bobby Jindal is not stupid. He’s a Brown University graduate in Biology who went on to complete a degree at Oxford as a Rhodes Scholar. Jindal has in the past flirted with the idea of coming out of the closet as a smart person by suggesting once that Republicans should stop saying stupid things. In that speech two years ago he chastised the party for embracing precisely the kind of “identity politics” he so forcefully endorsed on Monday. Being a smart guy he has apparently come to some conclusions about his career. He learned some lessons from his experience trying to be a principled leader."

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Monday, January 19, 2015

Martin Luther King, Jr. on Meet the Press (1965)

M.L. King, Jr. on Meet the Press in 1965.
"There are two types of laws...we have a moral obligation to disobey unjust laws.... Any man who willingly accepts the penalty is at that moment expressing the highest respect for law".

Sunday, January 18, 2015

Reagan Revolution rollback | xpostfactoid

Reagan Revolution rollback | xpostfactoid:
President Obama- speech on the economy December 4, 2013:
"As the trickle-down ideology became more prominent, taxes were slashes for the wealthiest while investments in things that make us all richer, like schools and infrastructure, were allowed to wither. And for a certain period of time we could ignore this weakening economic foundation, in part because more families were relying on two earners, as women entered the workforce. 
We took on more debt financed by juiced-up housing market. But when the music stopped and the crisis hit, millions of families were stripped of whatever cushion they had left. And the result is an economy that’s become profoundly unequal and families that are more insecure. 
Just to give you a few statistics: Since 1979, when I graduated from high school, our productivity is up by more than 90 percent, but the income of the typical family has increased by less than 8 percent. Since 1979 our economy has more than doubled in size, but most of the growth has flowed to a fortunate few. The top 10 percent no longer takes in one-third of our income; it now takes half. Whereas in the past, the average CEO made about 20 to 30 times the income of the average worker, today’s CEO now makes 273 times more." 
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Why the Oscars’ Omission of ‘Selma’ Matters -

David Oyelowo plays Martin Luther King.  Ava DuVernay directed "Selma"
Why the Oscars’ Omission of ‘Selma’ Matters -
by David Carr
Monday is Martin Luther King Jr. Day and given the context, it is an interesting moment to ask whether it really matters that the Motion Picture academy failed to nominate the black director and the black lead actor of “Selma,” the King biopic, for Oscars.

After all, it lands fairly low on the list of indignities visited on African-Americans: No unarmed people died, no innocent citizens were patted down or jailed.

But yes, it still matters. The news continues to be full of all manner of pathology and victimization involving black Americans, and when a moment comes to celebrate both a historical giant and a pure creative achievement, it merits significant and broad recognition.

Many would say that it should suffice that “12 Years a Slave,” a film by a black director about black history, won best picture last year, and “Selma” was nominated this year, and that any grievance is a conjured one. I disagree.
The director of “Selma,” Ava DuVernay, is a black woman who found the studio backing to make a movie that is great cinema, not a history lesson. And no club in the United States — over the last several years, the academy has beenaround 93 percent white, 76 percent male and an average of 63 years old — is in more need of new blood than Hollywood. The academy tends to recognize the body of work of directors, not just a single film, and this is just Ms. DuVernay’s third narrative feature, so that may have played a role.
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